The First Test of the Second Amendment and the State Criminal Law: The Case of a 34-year-old Californian Criminal Against a Domestic Violence Order
Since then, Second Amendment advocates have brought all manner of challenges to state and federal gun laws across the country, plunging the lower courts into conflicting conclusions about how precise the analog has to be. The case on Tuesday is the first test of how far the conservative court wants to go. At issue is the federal law that makes it a crime for anyone subject to a domestic violence court order to possess a gun.
The Supreme Court wrestled with how their decision would affect gun laws, declaring that in order to be constitutional, a law that was drafted in the 1700s needs to be the same. How precise is that analog?
The author of the law that made it possible for Congress to pass it in 1994 was the defendant in the case. In 2019 he assaulted his girlfriend in a parking lot, and after realizing that a bystander saw the assault, he fired a gun at the witness, and threatened to shoot his girlfriend if she told anyone. A Texas court granted her a protective order after two months, suspended his gun license, and warned him that possession of a gun while the order remained active is a federal felony.
He pleaded guilty to charges of violating the federal gun law and was sentenced to six years in prison. The law is unconstitutional because there was nothing like it in the 1790s, according to the Fifth Circuit Court of Appeals. The federal government appealed, contending that there is a long historical tradition in this country of disarming people who are dangerous.
Why there’s no’simple’ analog from the 1700s? The supreme court decides whether gun bans for domestic abusers are constitutional
There is a reason why there is no precise analog from the 1700s, says Michael Dreeben, a former deputy solicitor general in the Justice Department.
The Founding fathers did not consider domestic violence to be a serious problem that required legal intervention. Women were viewed more or less as property of their husbands,” he says. “The second feature of changed dynamics is that firearms are now the weapon of choice in domestic violence conflicts in a way that was not true at the founding.” The government believes that those realities justify a more explicit version of the 1700s.
“I think there’s a certain whistling past the judicial graveyard, if you will,” says Jerry Beard, a former assistant federal defender in Texas, who served in the office that is representing Rahimi.
“The government is throwing spaghetti at the wall hoping something sticks,” he says, adding that “the government is basically saying, ‘We don’t like this test… we want something else.’”
The court has always adjusted its doctrine according to the times. The court still banned wiretaps despite the fact that there were no phones at the founding.
Source: Supreme Court to decide if gun bans for domestic abusers are constitutional
“Whatever is a good person, what is not a bad person”: A warning on the federal and state laws that bar felons from having guns
70 women were shot and killed by a domestic partner each month in the past year, which is shocking, and information about domestic violence is available today. One in every million women have been shot at, and domestic assaults that involve guns are more likely to cause death than assaults without guns.
ACLU Legal Director David Cole, however, has a narrower view; he thinks this statute is constitutional as written because it requires that the protective order include a finding of dangerousness and in this case Rahimi was found to be a danger to his wife. But Cole points out a different flaw in the government’s argument. “The notion that any right is limited to law abiding, responsible citizens seems to me really odd,” he says. “You don’t have to be a bad person in order to have those rights.”
Several justices said Tuesday that the case is easy. The harder ones lie ahead, among them: federal and state laws that bar convicted felons — even those convicted of non-violent crimes — from having guns.
He said that an invalidating the federal law will destroy the National Instant Criminal Background Check System that requires protective orders of the kind that Rahimi had to be entered into so they could refuse the purchase of firearms.
More generally, Dreeben says, a decision against the federal law could cast doubt on an a network of prohibitions enacted by state and local governments that have been shown to be even more effective because of their greater breadth.
That’s “a tad dramatic” replies Beard, whose former colleagues are on the other side in Tuesday’s case. I have more confidence in the court than the government does.
What the Seventh Circuit Court of Appeals Upheld last year’s decision on felons from owning guns? Comment on Kavanaugh’s dissent, and what the lower courts had to say
He did not agree with the Seventh Circuit court of Appeals when they upheld the ban on felons from owning guns. She dissented because she believed that the felon who brought the case had been guilty of a non-violent crime. And Kavanaugh wrote a 52-page dissent in 2011 when the D.C. Circuit Court of Appeals upheld a ban on “assault weapons” and magazines for more than 10 rounds of bullets, plus broad registration requirements. Tellingly, at the time the two judges in the majority were conservatives, both appointed by Republican presidents.
Solicitor General Elizabeth Prelogar, representing the government, told the justices that under the court’s most recent decisions, including last year’s, Congress may disarm those who are not law-abiding, responsible citizens.
She denied that the Second Amendment stopped legislatures from disarming dangerous individuals.
People don’t lose their rights for doing stupid things like driving over the speed limit if they do irresponsible things like putting the trash out on the wrong day. Pressed by Chief Justice John Roberts, Prelogar agreed that the word responsible is “something of a placeholder for dangerousness.”
There’s no daylight between not responsible and dangerous? Justice Brett Kavanaugh asked. No daylight, Prelogar agreed, adding that “our understanding of what history and tradition reflect … is those whose possession of firearms presents an unusual danger beyond the ordinary citizen.”
Many of the court’s conservatives seemed to accept that idea, with only Justice Samuel Alito and Clarence Thomas questioning it. Thomas was the author of last year’s broad decision — a decision so expansive and unspecific that the lower courts have interpreted it in dramatically different ways. There seems to be a fair bit of division, and a fair bit of confusion regarding what Bruen requires of the lower courts.
Rahimi, however, continued to press his challenge to the federal law, and the Fifth Circuit Court of Appeals, citing the Supreme Court’s 2022 ruling, declared the law unconstitutional.
Matthew Wright struggled to convince the justices that there is nothing similar to this one from the founding era.
The court’s decision last year in the Bruen case prompted Justice Kantha to ask if a ban similar to those at the time of the founding is essential. We say that the government has no right to do anything if there is a similar ban from the founding era. She asked a lot of questions.
Source: High court seems likely to uphold law banning guns for accused domestic abusers
“I’m sorry, I can’t tell you that, but I’m afraid I am gonna die,” Barrett’s affidavit said
The affidavit the ex-girlfriend gave about the various threats was submitted by Justice Amy Coney Barrett. The judge said there was a “credible finding of violence” when he showed up.
“I think maybe,” Wright answered, prompting this from Kagan: “I will tell you the honest truth, Mr. Wright. I feel like you are running away from your argument because the implications of your argument are just so untenable that you have to say ‘no, that is not really my argument.’”
The decision in the Rahimi case will have a domino effect. Lower courts may be less inclined to strike down laws that prevent dangerous people from having guns.