Conservative Justices Courted by Liberal Groups in New Gun Case

Gun control advocates are pushing an argument they hope will convince at least two conservative justices on the US Supreme Court to break ranks to keep firearms away from domestic abusers.

More than three dozen briefs filed by organizations ranging from women’s groups to prosecutors to history scholars offers a potentially narrow path to victory for gun control supporters in the case, United States v. Rahimi.

They’re trying to provide an otherwise solidly pro-gun rights conservative majority a way out of having to overturn a federal law barring gun possession by people who are subject to domestic-violence restraining orders.

The groups see a potential opening for Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett to consider whether modern-era issues the amici say were not at the forefront in early US history can be addressed under the Second Amendment.

The “aim is to determine how the balance struck in the Constitution should be implemented in cases involving the regulation of modern weaponry to address modern challenges,” a brief filed by Second Amendment Law Scholars said.

More than half of all intimate partner homicides involve a gun, according to findings published this past spring in the Journal of Law, Medicine & Ethics.

Rahimi is also the first chance for the justices to clarify the test they established in their landmark 2022 decision in New York State Rifle & Pistol Assn., Inc. v. Bruen guaranteeing the right to carry guns in public, and to provide guidance to lower courts in analyzing challenges to firearms regulations.

The dispute to be argued in the term beginning Oct. 2 “is the best case for gun control advocates that could have come before the Supreme Court,” UCLA law professor Adam Winkler said.

Historical Tradition

The briefs filed in support of the Biden administration Aug. 21 focus on what gun control proponents say is the legal chaos created by the Bruen ruling.

Voting 6-3 along ideological lines, the court in Bruen rejected the approach taken by many lower courts to look at whether the ends—namely, public safety—justified upending Second Amendment rights. Instead, the majority said history alone was the guiding light on the legality of gun control measures.

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 Clarence Thomas wrote for the majority.

Winkler said the test makes it “near impossible to uphold common sense gun laws,” noting that more than 30 gun restrictions have been struck down in just over a year since Bruen was handed down.

Lower courts have struggled to identify relevant periods in US history, how to research some laws more than two centuries old, and then how broadly to interpret them.

Fifth Circuit

Zackey Rahimi pleaded guilty under the domestic violence gun law following a series of Texas shootings in 2020-21 and was sentenced to prison. At the time, he was under a restraining order covering domestic violence that was obtained by an ex-girlfriend. Reserving his right to appeal, Rahimi aruged that the US law on domestic violence restraining orders and gun possession violated his Second Amendment rights.

Guided by the Supreme Court’s new Bruen test, the US Court of Appeals for Fifth Circuit agreed with Rahimi. In striking down the domestic abuser law, the court found there were no “relevantly similar” historical analogues suggesting that those who enacted the Second Amendment would have understood it to give way to domestic abusers.

The government failed to show that the law’s “restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation,” the Fifth Circuit said.

The Fifth Circuit move, combined with other federal court decisions upholding the same law, all but guaranteed the justices would review the case.

Unprecedented Changes

Fordham University Second Amendment scholar Saul Cornell and other amici leaned on language in Bruen to argue the test should be more flexible.

Cases “implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach,” the high court said in Bruen. “Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.”

Trying to compare domestic gun violence at the founding with domestic gun violence today is “like looking at two different worlds,” Cornell said. Guns in use at the time of founding “weren’t great weapons for crimes of passion.”

The same is not true now, gun control advocates say. “The presence of a gun in domestic violence situations increases the risk of homicide for women by 500%,” according to a brief filed by the California Legislative Women’s Caucus.

“Bruen itself says it’s possible that regulation of weapons may still evolve,” said Yale law professor Reva Siegel, who also filed an amicus brief in support of the government.

Three Justices

The amici appear to be eyeing Roberts, Kavanaugh, and Barrett, according to Amy Swearer, a senior legal fellow at the conservative Heritage Foundation. They would join the court’s three liberals who are likely to side with the government.

Swearer said the three conservatives may be looking to uphold the integrity of the Second Amendment while at the same time allowing for what gun control supporters call common-sense gun laws.

She said arguments raised in the briefs could provide an off ramp for Roberts, Kavanaugh, and Barrett, who have previously written that longstanding gun regulations should still be constitutional.

The “Second Amendment is neither a regulatory straightjacket nor a regulatory blank check,” Kavanaugh wrote in a concurring opinion, joined by Roberts, in Bruen.

Some of the amicus briefs in Rahimi would give those justices “significant wiggle room” in analyzing history, while still protecting a robust Second Amendment right.

It’s an attempt by gun control advocates “to eke out a narrow victory for gun control,” UCLA’s Winkler said.