[The court is being asked to overturn an Appeals Court decision
that would allow domestic abusers to possess firearms despite the fact
that "the presence of a gun in a house with a domestic abuser
increases the risk of homicide sixfold.” ]
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WE’RE ABOUT TO FIND OUT HOW FAR THE SUPREME COURT WILL GO TO ARM
AMERICA  
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Linda Greenhouse
March 29, 2023
The New York Times
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_ The court is being asked to overturn an Appeals Court decision that
would allow domestic abusers to possess firearms despite the fact that
"the presence of a gun in a house with a domestic abuser increases the
risk of homicide sixfold.” _

, Dorothy Siemens

 

How much further will the Supreme Court go to assist in the arming of
America? That has been the question since last June, when the
court ruled
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New York’s century-old gun licensing law violated the Second
Amendment. Sooner than expected, we are likely to find out the answer.

On March 17, the Biden administration asked the justices
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overturn an appeals court decision that can charitably be described as
nuts, and accurately as pernicious. The decision by a three-judge
panel of the United States Court of Appeals for the Fifth Circuit
invalidated a federal law that for almost 30 years has prohibited gun
ownership by people who are subject to restraining orders for domestic
violence.

The Fifth Circuit upheld
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law less than three years ago. But that was before President Donald
Trump put a Mississippi state court judge named Cory Wilson on the
appeals court. (As a candidate for political office in 2015, Wilson
said in a National Rifle Association questionnaire
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he opposed both background checks on private gun sales and state
licensing requirements for potential gun owners.)

Judge Wilson wrote
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decision handed down in March that the appeals court was forced to
repudiate its own precedent by the logic of the Supreme Court’s
decision in the New York licensing case. He was joined by another
Trump judge, James Ho, and by Edith Jones, an appointee of President
Ronald Reagan; Judge Jones has long been one of the most aggressive
conservatives on the country’s most conservative appeals court.

Now it is up to the justices to say whether that analysis is correct.

Fifteen years after the Supreme Court’s Heller decision
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the Second Amendment to convey an individual right to own a gun, there
is no overstating the significance of the choice the court has been
asked to make. Heller was limited in scope: It gave Americans a
constitutional right to keep handguns at home for self-defense. The
court’s decision last June in New York State Rifle and Pistol
Association v. Bruen
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the surface also quite limited, striking down a law that required a
showing of special need in order to obtain an unrestricted license to
carry a concealed gun outside the home. New York was one of only a
half-dozen states with such a requirement, as the court put it in the
Bruen decision.

What was not limited about the New York decision — indeed, what was
radical — was the analysis that Justice Clarence Thomas employed in
his opinion for the 6-3 majority. Following Heller, courts had
evaluated gun restrictions by weighing the personal Second Amendment
claim against the government’s interest in the particular
regulation, a type of balancing test that has long been common in
constitutional adjudication. The Bruen decision rejected that
approach, instead placing history above all else.

“The government must affirmatively prove that its firearms
regulation is part of the historical tradition that delimits the outer
bounds of the right to keep and bear arms,” Justice Thomas wrote.

As a result of that decision, Shawn Hubler, a national correspondent
for The Times, reported
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this month, “gun historians across the country are in demand like
never before as lawyers must now comb through statutes drafted in the
Colonial era and the early years of the Republic to litigate modern
firearms restrictions.”

She noted that “cases now explore weapons bans in early saloons,
novelty air rifles on the Lewis and Clark expedition, concealed carry
restrictions on bowie knives and 18th-century daggers known as
‘Arkansas toothpicks,’ and a string-operated ‘trap gun’ that
may or may not be comparable to an AR-15 semiautomatic rifle.”

Judge Wilson, in his opinion for the Fifth Circuit, said the
prohibition on gun ownership by a person under a court-ordered
restraining order for domestic violence failed “the historical
tradition” test crafted by Justice Thomas. While there were laws at
the time of the country’s founding that disarmed people who were
deemed “disloyal” or “unacceptable,” Judge Wilson asserted
that the purpose of those laws was to safeguard the “political and
social order” rather than to protect individuals from violence.
Consequently, he said, the old laws were not sufficiently
“relevantly similar” to the modern law, known as Section 922(g)(8)
of the U.S. code, to meet the Supreme Court’s history test.

The defendant in this case, Zackey Rahimi, was under a restraining
order after he allegedly assaulted and threatened to shoot his
ex-girlfriend, the mother of his child, when he went on a shooting
spree, firing a weapon on five different occasions around Arlington,
Texas. He pleaded guilty to violating Section 922(g)(8) while at the
same time challenging the law’s constitutionality.

Mr. Rahimi, “while hardly a model citizen, is nonetheless among
‘the people’ entitled to the Second Amendment’s guarantees,”
Judge Wilson wrote. Noting that a court-ordered restraining order is
civil rather than criminal in nature, Judge Wilson asked rhetorically
whether, if Mr. Rahimi’s civil offense was enough to disqualify him
from owning a gun, as the law required, a similar disqualification
might apply to those who violate a speed limit or fail to recycle.

Clearly, the question now for the Supreme Court is not only the
validity of one statute but how the Bruen decision’s newly minted
“historical tradition” requirement will apply to any and all gun
regulations. The Fifth Circuit offered a lazy and cherry-picked
history that “missed the forest for the trees,” Solicitor General
Elizabeth Prelogar wrote
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the government’s Supreme Court petition.

While it was clear that “dangerous individuals could be disarmed”
at the time of the Constitution’s framing, she wrote, the Fifth
Circuit treated “even minor and immaterial distinctions between
historical laws and their modern counterparts as a sufficient reason
to find modern laws unconstitutional.” Under such an analysis, she
argued, “few modern statutes would survive judicial review.”
(While the Supreme Court is not obliged to hear the government’s
appeal, United States v. Rahimi
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the court almost never declines to review a decision that has
invalidated a federal statute.)

In a forthcoming article, Professors Joseph Blocher of Duke Law School
and Reva B. Siegel of Yale point out that there is a reason for the
failure of early American lawmakers to consider domestic violence a
reason to take away an abuser’s gun: The very concept of domestic
violence was alien to the Constitution’s framers because wives were
completely subordinate to their husbands and wife beating was widely
tolerated.

In enacting Section 922(g)(8) in 1994, they write, “Congress acted
to _alter_ the government’s historical refusal to intervene in
intimate partner violence — a failure that was rooted in the belief
that a man had authority to ‘correct’ subordinate members of the
household, including his wife.” They note that “government
response to violence between intimates only began to shift in the
1970s as this system of gender hierarchy began slowly to break
down.” Protecting women from intimate partner violence is thus
inherent in, and not — as the Fifth Circuit assumed — different
from protecting the “political and social order.”

There is no doubt that under the old interest-balancing test, the
government would prevail. The interest in keeping guns out of the
hands of domestic abusers is that obvious, as even the Fifth Circuit
found in 2020. “The parties agree,” the court noted then, “that
reducing domestic gun abuse is not just an important government
interest, but a compelling one. They only dispute whether §922(g)(8)
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reasonably adapted to that interest. We hold that it is.”

The government’s petition points out that there are more than one
million acts of domestic violence in the United States every year
“and the presence of a gun in a house with a domestic abuser
increases the risk of homicide sixfold.”

Will a fact like that matter to the Supreme Court? Do facts still
matter at all? That may now be the most urgent question this case
presents, not only to the court but to the country.

_Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on
the Supreme Court for The Times from 1978 to 2008 and was a
contributing Opinion writer from 2009 to 2021._

* Second Amendment
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* Supreme Court
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* domestic violence
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* guns
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