The U.S. Supreme Court on Tuesday seemed likely to uphold a federal law that bans gun possession for anyone subject to a domestic violence court order. If so, the decision would be a small retreat from the court's sweeping decision on gun rights last year.
From the outset Tuesday, the justices wrestled with the consequences of their far-reaching 2022 decision, declaring that in order for a gun law to be constitutional, it has to be analogous to a law that existed at the nation's founding in the late 1700s. The question Tuesday was how precise that analog has to be.
Dangerous vs. responsible
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.
"There is no historical evidence" that the Second Amendment "was originally understood to prevent legislatures from disarming dangerous individuals," she said.
But, as several justices noted, people do all kinds of irresponsible things driving over the speed limit, putting the trash out on the wrong day but nobody would suggest they lose their constitutional rights for that. Pressed by Chief Justice John Roberts, Prelogar agreed that the word responsible is "something of a placeholder for dangerousness."
"There's no daylight at all then 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."
"Why did you use the term 'responsible' if what you meant was dangerous?" Roberts asked.
"Well, we relied on the same phrasing the court itself used when it first articulated" the right to bear arms principle in 2008, she replied.
Most of the court's conservatives seemed to accept that proposition, with only Justices Samuel Alito and Clarence Thomas remaining skeptical. 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. As Justice Elena Kagan observed, "There seems to be a fair bit of division, and a fair bit of confusion about what Bruen [last year's case] means and what Bruen requires of the lower courts."
Background to the case
Challenging the federal law in Tuesday's case was Zackey Rahimi. A Texas judge stripped him of his license to have guns when it granted a domestic violence court order after Rahimi allegedly assaulted his girlfriend in a parking lot, and then fired a gun at a bystander who saw the assault. After he continued firing guns in public, even after the court order, police searched his residence and found guns, magazines and ammunition. He was sentenced to six years in prison for violating the federal law that bans domestic abusers under court order from possessing guns.
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.
Rahimi's lawyer, federal public defender Matthew Wright, struggled to defend that decision Tuesday, telling the justices there is no law from the founding era that is analogous to this one.
"There's no history of [gun] bans. They don't exist," Wright told the court.
Justice Kagan asked if the presence of a similar ban at the time of the founding is essential after the court's decision last year in the Bruen case. If there isn't a similar ban from the founding era, "we say that the government has no right to do anything?" she asked incredulously.
"That's largely what Bruen says," Wright replied.
Wright also maintained that those accused of domestic violence have few protections in court prior to being slapped with a ban on guns.
Justice Amy Coney Barrett wasn't buying that, noting that Rahimi's ex-girlfriend "did submit a sworn affidavit giving quite a lot of detail about the various threats. It's not like he just showed up and the judge said 'credible finding of violence.'"
Roberts was even more direct, asking, "You don't have any doubt that your client is a dangerous person, do you?"
Wright replied, "I would want to know what dangerous person means."
"Someone who is shooting at people," Roberts shot back.
"That's fair," a sheepish Wright conceded.
Kagan followed up: "Do you think the Congress could disarm people who are mentally ill, who've been committed to mental institutions?"
"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.'"
Indeed, the court's decision in the Rahimi case will have ripple effects. It may make lower courts more hesitant to strike down laws aimed at preventing dangerous people from having guns.
But as several justices said Tuesday, this is the easy case. 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.
My understanding is that this case is in regards to if rights can be stripped from people ACCUSED of domestic violence that have a restraining order placed on them.Correct, but as it's laid out in the article (if you had bothered to read it):
Wright also maintained that those accused of domestic violence have few protections in court prior to being slapped with a ban on guns.
Justice Amy Coney Barrett wasn't buying that, noting that Rahimi's ex-girlfriend "did submit a sworn affidavit giving quite a lot of detail about the various threats. It's not like he just showed up and the judge said 'credible finding of violence.'"
They don't just hand out restraining orders for kicks. The person requesting an order needs to provide evidence as to why they're seeking an order.
This challenge was looking to put guns in the hands of a very credibly accused domestic abuser.
it's not hard to see why people would be against guns being taken away from people.People in general? Maybe.
People credibly accused of domestic violence?
2A activists are in favor of irresponsible gun ownership and fight all efforts at responsible gun ownership.This. They are deranged, and the very last people who should have guns.
I don't disagree with taking guns out of the hands of some people accused of DV, but with some knowledge of the system, it's not hard to see why people would be against guns being taken away from people.
Do you believe every DV accusation is credible?The one in the case outlined in the article sure is.
See, the issue is that there are four possible outcomes here:
1. Somebody is rightfully accused of domestic violence has their guns taken away
2. Somebody is rightfully accused of domestic violence and does not have their guns taken away
3. Somebody is wrongfully accused of domestic violence and has their guns taken away
4. Somebody is wrongfully accused of domestic violence and does not have their guns taken away
Option 1 dramatically reduces the risk of the DV victim being murdered. Option 2 creates a substantial risk that the DV victim gets murdered. Option 3 means the accused can't go to the range for a few months until the case plays out and they're found innocent. Option 4 is neutral.
We can't easily control whether or not they're wrongfully accused, so our choice is between taking away the guns - which will either dramatically reduce the risk of murder or mildly inconvenience the accused - and not taking them away - which will either dramatically increase the risk of murder or maintain the status quo. That's not exactly a difficult choice.
The one in the case outlined in the article sure is.
You know, the one where lawyers are arguing for the credibly accused domestic abuser to have guns
It's rather disingenuous of you to portray being stripped of a constitutional right as being mildly inconvenienced and to pretend that the only consequence of having ones guns taken away is being unable to go to the range.It's rather callous to advocate for domestic abuse victims to be at increased risk of harm or death because a small percentage of people might be wrongfully accused of DV and have their weapons taken away
It's rather disingenuous of you to portray being stripped of a constitutional right as being mildly inconvenienced and to pretend that the only consequence of having ones guns taken away is being unable to go to the range.
It's rather disingenuous of you to portray being stripped of a constitutional right as being mildly inconvenienced and to pretend that the only consequence of having ones guns taken away is being unable to go to the range.That really is the only meaningful consequence, though.
It's rather callous to advocate for domestic abuse victims to be at increased risk of harm or death because a small percentage of people might be wrongfully accused of DV and have their weapons taken away
It's rather disingenuous of you to hide behind flimsy fearmongering and pathos in hopes that I won't notice that you opted not to actually compare any of those impassioned words to a dramatically increased risk of murder to complete the risk/benefit analysis.
That really is the only meaningful consequence, though.
That really is the only meaningful consequence, though.
To be fair, there's also the consideration that some people rely on guns for hunting for food, and that would be more than a minor inconvenience. But that's also an exception that can be managed with additional procedures, rather than something that's valid cause to throw out the whole idea.
no one in the US lives by hunting for food.
It is undeniable that a constitutional right is being stripped in these scenarios.
You cannot argue in good faith that constitutional rights being stripped are minor inconveniences.
The fact that you consider it as such indicates that your risk/benefit analysis is skewed by your lack of regard for a constitutional right.
That's patently untrue. Many people, especially those without a lot of money, use hunting as a means to feed themselves and their families. One deer goes a long way in terms of food for the cost.
It's no less callous to dismiss the idea of innocent people being punished. You strike me as the "no guns" type though so I'm getting the vibe that anything that restricts firearms to anyone for any reason makes you happy.I'm an Army veteran and I own firearms, but sure go ahead and leap to unsubstantiated conclusions because your arguments suck lmao
Only if you consider being able to go to a shooting range to be the only reason to own a gun.OK, I'll bite - what burning need do people have that requires them to be carrying a gun that overrides the right of victims to live in safety?
That's patently untrue. Many people, especially those without a lot of money, use hunting as a means to feed themselves and their families. One deer goes a long way in terms of food for the cost.
I have other variables I consider but that's another discussion
I worked for the Oregon courts for 5 years. You might be surprised at how little evidence is required for a restraining order. You might also be surprised at how little it takes to charge someone with domestic violence and how biased against men the justice system is in terms of DV cases. DV cases are very often instances of both parties being violent towards one another but only the man gets charged. I once saw a man charged with felony DV assault for cutting his drunk wife's hand when he yanked the keys away from her so she couldn't drive.Hey anything to start the trend toward getting rid of the 2nd Amendment is good in my book. Explain again why you need a gun without it being a completely farcical argument that can be negated when I throw the continents of Europe and Australia at you.
I don't disagree with taking guns out of the hands of some people accused of DV, but with some knowledge of the system, it's not hard to see why people would be against guns being taken away from people.
See, the issue is that there are four possible outcomes here:
1. Somebody is rightfully accused of domestic violence has their guns taken away
2. Somebody is rightfully accused of domestic violence and does not have their guns taken away
3. Somebody is wrongfully accused of domestic violence and has their guns taken away
4. Somebody is wrongfully accused of domestic violence and does not have their guns taken away
Option 1 dramatically reduces the risk of the DV victim being murdered. Option 2 creates a substantial risk that the DV victim gets murdered. Option 3 means the accused can't go to the range for a few months until the case plays out and they're found innocent. Option 4 is neutral.
We can't easily control whether or not they're wrongfully accused, so our choice is between taking away the guns - which will either dramatically reduce the risk of murder or mildly inconvenience the accused - and not taking them away - which will either dramatically increase the risk of murder or maintain the status quo. That's not exactly a difficult choice.
If a judge believed they posed a great enough risk that they should be stripped of there rights, then he could and should have them held in jail until trial.
The threshold of proof for imprisoning somebody for several months is - and should be - considerably higher than the threshold of proof for limiting somebody's access to lethal weaponry for several months. The latter is rarely more than a minor inconvenience. The former is devastating, especially if done incorrectly.
There's ample research out there showing the effects of these regulations. This is a solid example that runs through multiple different permutations and combinations of restrictions:
https://www.preventdvgunviolence.org/dv-and-firearms-zeoli.pdf
The exact numbers vary, but the common thread throughout every study examined in that summary is that reducing the accused's access to firearms reduces the risk of their partner being murdered by around 10% (by any means, not just by firearms), with the figure being quite a bit higher in some specific cases. That's a big deal.
The threshold should be no different.Sure it should. There's a massive gap in fairness between putting a potentially innocent person in prison for months, and making it more difficult for them to shoot someone for the duration of their trial.
The threshold should be no different. If you are dangerous enough you need to be disarmed, then you are dangerous enough you need to be imprisoned.
Depending on police response times, an abuser showing up with a knife or other weapon would have a much more difficult time successfully attacking their victim than if they were to roll up and be able to squeeze a trigger from fifty yards out.
Moreover, the stats simply don't support the "alternate weapon" narrative. Removing access to guns for those under DV restraining orders reduces the risk of DV homicide by every method, as much as opponents to such measures like to insist that "they'll just use a different weapon."
Another interesting stat from that article I linked is that among those that have committed DV, those that also own firearms tended to be more violent and more likely to use any weapon, even if their firearm wasn't actually involved in the incident(s). The article stops short of trying to draw any inferences from that statistic (as it should, since that's outside of its scope), but I'd interpret that as indicating that owning a firearm emboldens those that are inclined to do violence to go further than they otherwise would (which is also consistent with the statistical reality that firearm owners are more likely to be killed by gun violence).That's kinda been the common sense known, with the argument "violent people will be violent, with or without guns." It's simply not true. The ease to use/effectiveness ratio of guns means it allows crimes/moments of passion to result in violence very easily. The impersonal nature due to not having to be in close proximity of your target allows dissociation, too.
Translated to the issue of DV homicide during a restraining order, it stands to reason that restricting the culprit's access to firearms reduces all homicide rates because the culprit generally feels less confident about enacting further violence. That's speculation, of course, but it seems consistent with the stats.
That's kinda been the common sense known, with the argument "violent people will be violent, with or without guns." It's simply not true. The ease to use/effectiveness ratio of guns means it allows crimes/moments of passion to result in violence very easily. The impersonal nature due to not having to be in close proximity of your target allows dissociation, too.
Compared trying to stab someone to death, and it's basically night and day. It's personal. It's messy. It's exhausting. It's very involved. And it's risky. This is why "mass stabbings", or murder by this method in general, is quite rare, even in countries or regions where access to guns make knives the next best option.
All that applies to suicide, too - momentary dark thoughts and easily translate into death with guns.