Supreme Court gun case could prompt new challenges to New York laws

WASHINGTON — The U.S. Supreme Court will hear arguments Tuesday on whether the government can disarm people under domestic violence restraining orders in a case arising from its decision last year that struck down New York’s strict law on carrying guns in public.

In United States v. Rahimi, Texas federal public defender lawyers are urging the justices to uphold a Fifth Circuit Appeals Court ruling that restraining orders are unconstitutional based on the Supreme Court’s ruling last year in New York State Rifle and Pistol Association v. Bruen.

The stakes in the outcome of the Rahimi case are high, both for the protection of families facing domestic violence from gun owners and for judicial interpretations of Second Amendment cases under a new history-based method required by the Bruen decision.

“On the one hand this case is incredibly important because it's about domestic violence and guns, and there are few areas of gun research that are more incontrovertible than the dangerous combination of guns and domestic violence,” said Eric Ruben, a professor at Southern Methodist University's Dedman School of Law in Dallas.

“But it's also important because the Supreme Court needs to give more guidance about how to do this new test that the court created for the Second Amendment because thus far it has not been leading to predictable and consistent results,” Ruben said.

Possible challenges to NY gun laws

The high court’s Rahimi case decision could result in new challenges to New York’s gun laws. Already, the New York Rifle and Pistol Association has a case before the Second Circuit Appellate Court seeking to overturn the statute on open carry of guns the State Legislature passed in response to the Bruen decision.

The case being argued Tuesday involves Zackey Rahimi, a drug dealer who fired gunshots five times over two months in Arlington, Texas, and who later admitted to police he had firearms in his house despite a domestic restraining order barring him from having guns, court records show.

The Fifth Circuit initially upheld Rahimi’s conviction when he appealed on Second Amendment grounds, but after the Bruen decision, a three-member panel of the circuit reversed the decision in March. The U.S. Justice Department appealed the case to the Supreme Court.

In a one-hour session Tuesday, U.S. Solicitor General Elizabeth Prelogar will urge justices to reject the Fifth Circuit’s ruling and Assistant Federal Public Defender J. Matthew Wright of Texas will ask them to uphold it.

Arguments turn on history-based method

The arguments will be based on the new framework Justice Clarence Thomas created in writing the Bruen decision that supplanted the courts’ traditional two-step method of considering history and balancing the benefits to public safety with the burden on gun rights.

Instead, he ruled that to be constitutional a gun law must be “consistent with the Nation’s historical tradition of firearm regulation” and “analogous” with 18th and 19th century laws.

In his brief to the Supreme Court for Rahimi, Wright wrote, “Because there is no historical tradition of any similar restriction, the law is unconstitutional on its face.”

In response, Prelogar wrote that Wright offers "no historical evidence to support his position, which contradicts this Court's precedent, the Second Amendment's original meaning, and our Nation's tradition of firearms regulation."

Ruben has a forthcoming Virginia Law Review article analyzing more than 450 challenges to gun laws in the year since the Bruen decision.

“In one fell swoop, the Supreme Court basically wiped the slate clean of over a decade's worth of Second Amendment cases,” said Ruben.

The study found that 21% of all Second Amendment challenges have had at least partial success in the year after the Bruen decision, compared with 9% between 2008 and 2016.

Ruben said Thomas’ test was supposed to make Second Amendment law “more administrable.” But he said the analysis found judges were reaching wildly divergent results on the constitutionality of gun policies — and the judges’ opinions even had an ideological tilt based on which presidents appointed them.

Janet Carter, senior director for issues and appeals at the nonprofit advocacy group Everytown for Gun Safety, said domestic violence restraining orders prohibiting gun possession are vital.

“I just want to emphasize again how important this law is to the lives of women and families across the country — 70 women are shot and killed every month in domestic violence situations,” she said, “And this is really a key protection for people in some of the most dangerous situations.”