The Biden administration asked the Supreme Court on Tuesday to preserve gun control laws that deny firearms to people deemed dangerous even if they have not been convicted of a felony, saying that has long been accepted as a valid reason to restrict Second Amendment gun rights.
In a closely watched case testing the new limits on state restrictions on gun ownership, Solicitor General Elizabeth Prelogar said the situation governing gun rights has become messy in the wake of the high court’s recent rulings, She begged the justices to deliver a firm statement that legislatures do have the power to block certain people from getting a firearm.
“The constitutional principle is clear: You can disarm dangerous persons,” Ms. Prelogar said.
The case before the justices involved Zackey Rahimi, whom prosecutors said had a history of reckless shootings, though he did not have convictions on his record. After a tense encounter with Rahimi, an ex-girlfriend obtained a protective order from the state of Texas which under federal law meant he was barred from having a gun.
A federal appeals court initially upheld the conviction. But then the Supreme Court delivered its landmark ruling in the Bruen case in 2022, reaffirming Americans’ fundamental right to own a gun and forbidding any restrictions that clashed with what those in the nation’s earliest days would have deemed acceptable.
After Bruen, the federal appeals court overturned Rahimi’s conviction. Bruen has also prompted other courts to question laws that prohibit drug users or even felons from possessing guns.
Confusion after a decision
Several justices decried the “confusion” that has reigned in the year and a half since the ruling.
“I am just trying to understand how the Bruen test works,” said Justice Ketanji Brown Jackson, who joined the court just after Bruen was decided.
J. Matthew Wright, the public defender who argued on behalf of Rahimi, didn’t help matters for the justices, when he seemed at one point to be arguing there was no historical precedent for Congress to fully disarm a citizen, but stopped short of saying a conviction was required to take away Rahimi’s guns.
Justice Elena Kagan said Mr. Wright’s position would undermine what most people consider reasonable gun control by the government.
“It just seems to me that your argument applies to a wide variety of disarming actions, bans, what have you, that we take for granted now because 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,” she said.
Mr. Prelogar said some lower courts are already following the path blazed in the wake of Bruen, including rulings that the gun prohibitions shouldn’t apply to armed career criminals, drug traffickers and those who have obliterated the serial numbers on their guns.
She tried to give the justices an off-ramp from Bruen, saying that they should make clear courts can look to general principles without needing to find an exact match in the historical record dating back to the 18th century. She said the test should be whether someone “presents an unusual danger beyond the ordinary citizen.”
Ms. Prelogar said there were plenty of examples from the nation’s founding years, such as prohibitions on gun possession by the intoxicated, the mentally ill and those who remained loyal to Britain during the Revolutionary War.
“Legislatures are best positioned to make these kinds of judgments about dangerousness,” she said.
Complicating the arguments were the particulars of the case, with prosecutors describing Rahimi as a violent drug-dealer with a string of unhinged shootings. According to the record, he shot at the home of one man who “started talking trash” online, shot at another man after a traffic collision, fired a gun in a neighborhood with children present, then shot at another driver in yet another road-rage incident.
Prosecutors also said he threatened his ex-girlfriend and later another woman with a gun.
Chief Justice John G. Roberts Jr. said there was no doubt Rahimi qualified as “a dangerous person,” defining the term for Rahimi’s attorney at one point as “someone who’s shooting, you know, at people, that’s a start.”
Despite the slew of allegations lodged against him, at the time of his protective order Rahimi did not have any convictions. The case for denying him the right to buy a gun turned on a civil proceeding.
Recent laws under fire
The domestic violence prohibition has been on the books since 1994, when Congress said anyone subject to a court-issued protective order cannot possess a firearm. That puts it alongside other prohibited possessors, such as convicted felons, dishonorably discharged vets, illegal immigrants, unlawful drug users, fugitives and those who’ve been found to be mentally infirm.
Mr. Wright said that while there is a long tradition of denying guns to felons, that’s not the case for other categories of people covered by more recent laws.
He also said the prohibition — not just carrying a weapon, but even possessing it in the home — goes beyond what the Founders would have stomached.
“The behavior that’s protected is the keeping of arms,” Mr. Wright said. “This is someone who’s keeping a firearm in his own home.”
He also took issue with a civil court’s issuance of civil protection orders, complaining the proceedings are often “one-sided.” There’s also a lower standard to meet when convincing a judge to issue a protective order compared to the higher standard — beyond a reasonable doubt — used in criminal court.
“My client was unrepresented,” he told the justices. “They made a one-sided proceeding that is short, a complete proxy for a total denial of a fundamental and individual constitutional right.”
Ms. Prelogar, though, said domestic violence cases are particularly tricky when it comes to guns.
“I was struck by the data showing that domestic violence calls are the most dangerous type of call for a police officer to respond to in this country,” she said. “Guns and domestic abuse are a deadly combination.”
The Bruen decision, which struck down long-standing New York state-run restriction laws, has spawned hundreds of lower court decisions analyzing the 2022 ruling. Most of the challenges to gun control laws have failed, but there have been enough successful challenges that court watchers wonder whether the justices will need to draw clearer lines.
Justice Jackson said there may be a bigger problem with Bruen.
She said those in the early days of the new United States didn’t take domestic violence as seriously as it is considered today, so it doesn’t make sense to look for an analogous prohibition on gun rights at the time. She also pointed out that, because of the system in place at the time, slaves and Native Americans were excluded automatically as persons to whom gun rights applied.
“I’m a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts,” she said. “Isn’t that a flaw with respect to the test?”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.