On Tuesday, as another American city buries the dead from another mass shooting, the Supreme Court takes up a case on whether people who are known to be violent have a constitutional right to have guns. It poses a fundamental test of where the Court is headed on its understanding of the Constitution’s Second Amendment.
Tomorrow’s hearing: United States v. Rahimi Starting at 10 a.m., the hearing is scheduled for one hour.
The Court will broadcast “live” the audio (no video) of the hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
Background of this case: On Tuesday, families in Lewiston, Maine, will be visiting funeral homes to begin to honor the 18 people killed in a mass shooting there last month, while at the same time the Supreme Court in Washington takes up one of the most important gun rights cases it has faced.
With 25 more mass shootings recorded even since the Lewiston incident, the search for an answer to rampant gun violence continues in America. The status of the constitutional right to a gun remains mostly unsettled because the Supreme Court is still exploring what it will allow and that uncertainty heightens the already difficult task of enacting any new gun-control laws.
The Tuesday case highlights an unusual facet of this constitutional puzzle: the Court, in 15 years of rulings on this issue, has yet to clarify whether a person who has an undoubted record of gun violence has Second Amendment rights anyway. The Court has said repeatedly that the Amendment, as it reads it, protects the rights of “ordinary, law-abiding citizens.”
Tomorrow, however, the Court takes up a case about a Texan formally deemed violent who has a record of repeated shootings; still, he persuaded a lower court to restore his right to a gun.
At issue in the case is a 1994 law passed by Congress barring possession of any gun by an individual who has been put under a restraining order by a court after engaging in domestic violence – that is, violence against a close family member. Originally, conviction of having a gun while such an order is in effect carried a potential ten-year prison sentence; Congress has since increased that to 15 years. The law creates a possession crime, separate from any crime in which a gun was actually used.
Facts of this case: Zackey Rahimi, described in court papers as a drug dealer in Arlington, Texas, knocked his girlfriend down and dragged her to his car after they had an argument in public in December 2019. He fired a shot with a gun, apparently to warn away a bystander; his girlfriend fled from the scene. Later, he called her and threatened to shoot her if she told anyone.
Two months later, a state court granted his girlfriend a restraining order against Rahimi, to be in effect for two years. He was barred from contacting or threatening her. The order also suspended his license to a handgun and barred him from possessing any gun, with the possibility of prosecution for a felony if convicted of possession.
Prosecutors contended that, later, Rahimi violated the order by trying to contact the woman; he was arrested for that violation. He also threatened another woman while holding a gun, leading to a charge of assault with a deadly weapon. In a series of other incidents over the next several months, he fired shots at other people during traffic incidents, during an encounter at a fast-food restaurant, and in a residential area when children were nearby.
Police, reacting to those incidents, obtained a search warrant for his home. They found a pistol, a rifle, ammunition for guns, about $20,000 in cash — and a copy of the restraining order. He was charged with illegal possession of weapons under the 1994 law. He sought to have the charges dismissed, arguing that the law was unconstitutional under the Second Amendment.
A federal trial judge rejected the challenge, noting that a federal appeals court had previouwly upheld that law’s constitutionality. Rahimi then pleaded guilty, and was sentenced to six years and one month in prison.
He appealed to the federal appeals court, which ruled against him, citing its earlier decision. However, after the Supreme Court, in a major ruling in 2022 had broadened considerably the right to have a gun under the Second Amendment, the appeals court withdrew its ruling and issued another, striking down the 1994 law as written – that is, it did not matter what the facts were, the law was invalid in all applications.
While this new decision conceded that Rahimi was “hardly a model citizen,” that court ruled that at the time the restraining order was issued, he was only suspected, not convicted, of a felony. In that status, the appeals court said, he remained protected by the Second Amendment under Supreme Court precedents. The only people not protected by the Amendment, it said, are those who have been convicted of felonies or were judged to be mentally ill.
Once Rahimi was placed into the class of people protected by the Amendment, the court went on to consider whether the nation’s history showed a pattern of denying guns to those under civil court restraining orders. Finding none, it nullified the 1994 law. Its use of the historical inquiry is the one that the Supreme Court laid down in its most important recent decision on the Amendment, in 2022.
The Biden Administration’s Justice Department appealed the Rahimi case to the Supreme Court, and the Justices agreed to hear it. This will be the first sequel to the Court’s 2022 decision that the appeals court had relied upon in Rahimi’s case.
Background on the Second Amendment: The guarantee of a “right to keep and bear arms” was not treated as a personal, individual right until the Second Amendment was 231 years old, although a heated debate had raged for decades over that idea between lawyers and scholars. In 2008, however, the Supreme Court ruled that it was a “pre-existing right” – it had existed in America before the Constitution was written – so it was simply codified in 1791 as part of the Bill of Rights. To the surprise of many, the Court commented that “it has always been understood that the Second Amendment…codified a pre-existing right.”
Whatever the historic accuracy of that statement (and it was strongly disputed by the dissenting Justices in 2008), that is a part of the Second Amendment today. Nevertheless, it has been true ever since that ruling that the right is not an absolute right, existing in all circumstances. The Court said at the time: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
That left a huge gap in the law: just what limits could government put on gun possession, use or carrying, without violating the Amendment?.
Lower courts responded by coalescing around some version of a two-step inquiry for judging gun-control laws. First, a court decides whether the law put limits on conduct that was protected by the Second Amendment as a matter of history. If it is outside that zone, that ends the case, and the law is deemed valid. Second, if the law deals with an area of conduct historically within the Amendment’s scope, the law must satisfy a more rigorous test of whether the limit on the right puts too heavy a burden on the gun owner, as compared to the need for gun control to protect public safety.
While lower courts were working out that formula as they decided new Second Amendment cases, they were aware that the Supreme Court had recognized a personal right to have a gun, for self-defense, only inside one’s home.
The two-step test came up for Supreme Court review last year. In a 6-to-3 decision, in the case of New York State Rifle & Pistol Association v. Bruen, the Court for the first time extended the gun right outside one’s home. It struck down a New York state law that limited a resident’s right to carry a concealed pistol in public. To obtain a public-carry license, a person had to show a special, personal need for self-protection, separate from any community or neighborhood threat of violence.
The lower court had upheld that law, using the two-part test; it concluded that the licensing requirement did not affect the core right to have a gun inside one’s home, but rather was a restriction on carrying a weapon elsewhere.
Overturning that ruling, when New York gun owners and a gun advocacy group appealed, the Supreme Court nullified the state law and flatly rejected any further use of the two-part test. It declared that Second Amendment cases require only a one-step analysis, based primarily upon the history of prior regulation of guns. The fact that the Second Amendment had been written into the Constitution meant that the people had done all the balancing that was required, it said. In other words, if a modern gun law has no genuine parallel in history, it is invalid.
The new one-step test got one of its first applications in the Rahimi case. Rahimi was among those protected by the Amendment, the appeals court said, and — finding no analogue to the 1994 law’s ban on guns for those under protective orders – it overturned the law.
The question before the Court: Does the Second Amendment protect a person’s right to have a gun if that person has been declared violent by a court order?
Significance: If this case were limited only to the specific situation at issue, a ban on gun rights for a person restrained from domestic violence by court order, it would be highly significant. Government data show that more than a million acts of domestic violence occur every year in America; the ready availability of guns adds to that violence.
But the Rahimi case is not so limited. If a court’s finding that a person is violent, based upon actual incidents in their life and the lives of others, is not sufficient to justify keeping guns away from them, public safety is at risk far beyond violence between a couple or within a family.
Federal prosecutors in the case had offered a good deal of historical evidence about how governments have often barred violent people from having weapons. But the rigorousness of the test laid down in the Bruen decision seemed to mean that the Second Amendment is far more a barrier to gun control than it has been at any time over the past 15 years.
The singular focus on historic parallels by itself diminishes the importance of public policy choices that governments of today make in passing new gun restrictions. But the added fact that the Court has also ended any balancing test between gun rights and public safety needs in the constitutional equation makes it exceedingly difficult to see how gun culture can be restrained in any dependable way.
In the Bruen decision, one member of the Court who joined in the majority’s opinion said that the stories of mass shootings were beside the point in the constitutional analysis. Others in the majority attempted to argue that the decision was not as broad as the dissenting Justices said it was, but the reaction of the appeals court in Rahimi’s case casts that view into doubt.
Beyond all of this, there is a broader implication: the 2022 decision was a very clear demonstration of how the “originalist” theory of constitutional interpretation can confine the discussion of constitutional meaning to America’s past, when times were profoundly different and teach few lessons for policy-making in the modern age of mass shootings.
