The U.S. Supreme Court on Tuesday took up its first major Second Amendment case since it expanded the right to bear arms in a landmark decision last year, and once again the idea of protecting schools was in the backdrop of the debate.
The court appeared sympathetic in United States v. Rahimi to arguments by the Biden administration to uphold a 1994 federal statute that prohibits gun possession by individuals subject to domestic violence protective orders. A federal appeals court had struck down the law, ruling that there was no historical analogue for such a restriction on gun possession for domestic abusers at the time of the nation’s founding.
U.S. Solicitor General Elizabeth B. Prelogar told the justices that the domestic-abuse restriction may be upheld under a broader tradition of keeping guns out of the hands of dangerous people, just as the court has said that schools are among the “sensitive places” where guns may be banned even though there is no direct historical analogue to that idea.
“The fact is that the framers didn’t ban firearms in schools even though they existed at the founding,” Prelogar said. “But the court has already recognized that those analogues and the historic banning of firearms in places where they present safety concerns can justify a modern-day regulation that does require the banning of weapons in schools.”
Similarly, she said, the ban on gun possession by those subject to domestic abuse orders “is a clear application of that principle that you can disarm dangerous people.”
The Supreme Court first recognized an individual right to gun possession in a landmark 2008 case, District of Columbia v. Heller , when it also said that “nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
Justice Clarence Thomas, in the majority opinion in Bruen last year, said “We have no occasion to comprehensively define ‘sensitive places’ in this case.”
Prelogar told the court the domestic abuse statute operated similarly to the concept of restricting guns in sensitive places.
“You could look and see is that place, in fact, dangerous if there are weapons there,” she said. “So, too, you could look at the evidence the legislature was consulting [in the domestic violence context] with respect to its judgment of dangerousness.”
J. Matthew Wright, an assistant federal public defender representing a Texas man who was convicted under the 1994 law, said the administration was “looking down the dark well of American history and seeing only a reflection of itself in the 20th and 21st century and saying that’s what history shows.”
In passing the 1994 law barring gun possession by domestic abusers, Wright said, Congress turned an often “one-sided” system of state courts issuing protective orders into a “complete proxy for a total denial of a fundamental and individual constitutional right” to possess arms.
Wright represents Zackey Rahimi, who in 2019 had an argument with his then-girlfriend, with whom he shared a child, in a parking lot before grabbing her and pushing her into a car. He fired his gun at a bystander who witnessed the confrontation, and he threatened to shoot his girlfriend if she reported the incident, court papers say. The girlfriend obtained a protective order from a Texas state court, which Rahimi soon violated by seeking to contact her. After a wave of other incidents in which Rahimi allegedly discharged his gun in public, police executed a search warrant in his home and found a pistol, rifle, ammunition, and a copy of the protective order.
Rahimi pleaded guilty to a charge under the 1994 statute and was sentenced to six years in prison, but he reserved his right to challenge the law as unconstitutional under the Second Amendment. The U.S. Court of Appeals for the 5th Circuit, in New Orleans, agreed with him earlier this year, holding that because Rahimi presumptively had Second Amendment rights, the federal government bore the burden of showing that the domestic-abuse restriction had historical analogues to be justified under the Bruen decision.
“Rahimi, while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees, all other things equal,” the 5th Circuit court said.
Chief Justice John G. Roberts Jr. asked Wright, “You don’t have any doubt that your client [is] a dangerous person, do you?”
Wright said that he would want to know what “‘dangerous person’ means at the moment.”
“Well, it means someone who’s shooting, you know, at people,” Roberts said. “That’s a good start.”
When Wright struggled to distinguish the restriction on domestic abusers from more longstanding gun-possession restrictions on those with mental illness, Justice Elena Kagan suggested “The implications of your argument are just so untenable.”
“It’s so obvious that people who have guns pose a great danger to others and you don’t give guns to people who have the kind of history of domestic violence that your client has or to the mentally ill,” Kagan said.
Justice Brett M. Kavanaugh highlighted an argument made by Prelogar in a brief , that the federal background-check system to prevent the sale of firearms to prohibited persons has resulted in 76,000 denials based on domestic-abuse protective orders since the system was created in 1998, and more than 3,800 denials in 2021 alone.
“According to the government, under your argument, that system could no longer stop persons subject to those domestic violence protective orders from buying firearms,” Kavanaugh told Wright, who replied that many of those people would remain subject to denial based on state law prohibitions against gun possession.
Prelogar told the justices that upholding the 1994 statute “should be an easy case … because it does guard against a profound harm.”
“A woman who lives in a house with a domestic abuser is five times more likely to be murdered if he has access to a gun,” she said.
Although not discussed in this case, there have been instances when domestic abuse spilled over to school, as reflected in Education Week’s school shooting tracker . In 2019, a Naples, Fla., man shot and killed an ex-girlfriend in the parking lot of a high school. Also in 2019, in Vancouver, Wash., a man shot and killed a mother of three in an elementary school parking lot before taking his own life. In 2021, a man arrived at an Indiana school campus seeking to kill a mother in a domestic violence dispute—he shot and wounded her.
“In 68.2% of fatal mass shootings between 2014 and 2019, the perpetrator shot and killed at least one partner or family member, or had a history of domestic violence,” the brief says, citing a 2021 study.
A decision in the case is expected by late June.
