Reason and basic human decency seemed to prevail at the Supreme Court’s big argument about whether domestic abusers should be armed.
Activists rally outside the US Supreme Court before the start of oral arguments in the United States v. Rahimi Second Amendment case in Washington on November 7, 2023. Bill Clark/CQ-Roll Call, Inc via Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
About 40 minutes into Tuesday’s Supreme Court argument asking whether a federal law prohibiting domestic abusers from owning guns is unconstitutional, Chief Justice John Roberts asked J. Matthew Wright, the lawyer arguing against the law, a question that no attorney ever wants to hear.
“You don’t have any doubt that your client is a dangerous person, do you?” the Chief asked Wright.
There is, indeed, very little doubt that Wright’s client, Zackey Rahimi, is a very dangerous man. A Texas court determined that Rahimi “has committed family violence” and that he “represents a credible threat to the physical safety” of his ex-girlfriend or other members of her family.
If anything, that’s a massive understatement. Rahimi allegedly hit his ex-girlfriend in a parking lot, and then fired a gun at a bystander who witnessed the fight. He then allegedly called the ex-girlfriend and threatened to shoot her if she told anyone that he’d assaulted her. And he’s accused of committing multiple other crimes where he fired a gun — in one of them, he allegedly fired into a man’s home with an AR-15 rifle.
The specific question before the Supreme Court in United States v. Rahimi is whether a federal law makes it a crime to possess a firearm if a court has determined they are a threat to their “intimate partner,” their child, or their partner’s child violates the Second Amendment.
Only Justices Clarence Thomas and Samuel Alito appeared open to the possibility that this law could violate the Constitution.
And, while Alito at times made arguments that seemed lifted from men’s rights activists — such as a claim that courts frequently impose domestic violence restraining orders without considering if they are warranted — even he seemed uncomfortable with some of Wright’s arguments by the end of the Court hearing.
The biggest question in Rahimi, in other words, does not appear to be whether the Supreme Court will reverse a right-wing federal appeals court that struck down this ban on gun ownership by domestic abusers. The biggest question appears to be how the Court will do so, and whether it will issue a sweeping decision limiting a recent pro-gun decision that has sown chaos and confusion in the lower courts.
Three ways that the Supreme Court could resolve Rahimi
Rahimi is an arresting case: Ordinarily, clear-cut cases such as this one do not reach the Supreme Court. The system of federal trial courts and intermediate appeals courts is supposed to weed out cases that present questions as seemingly one-sided as the ones in this case — again, the question is Rahimi is whether someone that a court has determined to be a violent threat to their partner or to a child should own a gun.
But Rahimi is before the Court for two reasons. One is that it arose out of the Fifth Circuit, a far-right court, dominated by MAGA stalwarts, that routinely hands down head-scratching decisions reaching right-wing results. Indeed, the Fifth Circuit hands down trollish, unworkably disruptive decisions so often that correcting these errors has become one of the (itself very conservative) Supreme Court’s major projects.
This term, the Court is expected to reverse Fifth Circuit decisions that declared an entire federal agency unconstitutional, that virtually neutralized another federal agency, and that allowed Republican state governments to seize control of which content is published on Twitter (the site that Elon Musk insists on calling “X”), YouTube, or Facebook.
That said, the Fifth Circuit’s penchant for judicial arson can only explain part of why Rahimi is before the justices. The other explanation is that, in New York State Rifle & Pistol Association v. Bruen (2022), the Court’s Republican appointees placed an extraordinarily high burden on any lawyer tasked with defending any gun law. Under Bruen, a gun law is typically unconstitutional unless similar laws existed in the framing era. And there were no bans on gun ownership by domestic abusers in 1791.
In any event, a majority of justices — possibly as many as eight — seemed to agree during Tuesday’s argument that they should not follow Bruen’s reasoning to the absurd conclusion that the Fifth Circuit reached in Rahimi. But there was considerable disagreement about how to reverse the Fifth Circuit.
Justice Ketanji Brown Jackson, a frequent critic of the Republican justices’ use of history to justify reaching conservative results, appeared to suggest several times that Bruen should be tossed out in its entirety.
She repeatedly asked what work Bruen’s “history and tradition” framework is doing if the fact that domestic violence was largely tolerated in the framing era doesn’t prevent modern-day legislatures from enacting the law at issue in Rahimi, which is rooted in modern-day sensibilities. And Jackson also brought up the uncomfortable fact that laws disarming enslaved Black people and Native Americans were common in early American history. The Bruen framework, she suggested, seems to focus too much on the rights afforded to white Protestants in early America, and does not capture the history of all Americans.
Jackson, however, was the only justice who attacked Bruen so directly. A critical bloc of the justices, which may include Roberts, Obama appointees Sonia Sotomayor and Elena Kagan, and Trump Justices Brett Kavanaugh and Amy Coney Barrett, seemed to hone in on a different argument that would weaken Bruen without forcing the Court to make the embarrassing concession that Bruen’s framework is an unworkable mess that consistently produces monstrous results.
Under this framework, which was proposed by Solicitor General Elizabeth Prelogar, “dangerous” individuals are beyond the scope of the Second Amendment, and legislatures have broad authority to determine which types of people are too dangerous to own a firearm. That category may include people like Rahimi, who have received a court proceeding determining them to be dangerously violent. It also may include minors or people with serious mental illnesses who may not handle gun ownership responsibly, even though these conditions are not their fault.
This is why Roberts’s question about Rahimi’s dangerousness was such a bad sign for his chances of prevailing in this case. Similarly, near the very beginning of the argument, Barrett seemed to state outright that she intends to vote against Rahimi — suggesting that there is no question that someone subject to a domestic violence restraining order is dangerous.
A third possibility, first floated by Justice Neil Gorsuch, was to try to shrink the question the Court decides in this case. As Gorsuch repeatedly noted, the Fifth Circuit held that the federal law disarming domestic abusers is unconstitutional on its “face,” a legal term that means that there is no set of circumstances where the law could be considered valid.
But even if there may be edge cases where the law is applied to someone who is only marginally dangerous, or who may have received less due process than Rahimi did, Gorsuch appeared to agree that Rahimi, the unusually dangerous individual before the Court in this case, should not have a gun.
The good news for everyone who agrees that victims of domestic violence should not be murdered is that at least seven justices appear poised to reverse the Fifth Circuit. The question is whether they will also roll back some or all of their incompetently drafted decision in Bruen.