New Supreme Court Case a Test for Carrying Guns in Malls, Parks

The outcomes of several lawsuits aiming to broaden where gun owners can carry their weapons could hinge on how the US Supreme Court decides an upcoming case about the rights of domestic abusers.

The high court in June agreed to hear the case of Zackey Rahimi, who argues his Second Amendment rights were violated by a law that prohibits an individual under a domestic violence restraining order from owning a firearm.

When the Supreme Court rules on Rahimi’s case, it will be the court’s first opportunity to clarify its decision in New York State Rifle & Pistol Ass’n v. Bruen, a 2022 case that sent shockwaves through the lower courts over how it instructed judges to adjudicate challenges to gun laws.

“The case outcomes are highly unpredictable. We’re getting different courts going in different directions on the exact same questions,” said Adam Winkler, a professor of law at UCLA specializing in gun policy.

In Bruen, the Supreme Court concluded that the Second Amendment establishes a right to carry a handgun outside the home. But it also supplanted the common practice of judges balancing an individual’s right to carry with the state’s interest in public safety.

Instead, Bruen says it’s the government’s burden to show that a law restricting access to guns is “consistent with the Nation’s historical tradition of firearm regulation.” Parties do this by presenting analogous laws from the 18th and 19th centuries to demonstrate how the modern law at issue does or doesn’t adhere to how the Second Amendment was understood shortly after it was adopted.

“The court in Bruen adopted this new test because it said it would be more manageable, less likely to be manipulated by judges, and provide clarity to the Second Amendment,” Winkler said. “It hasn’t done any of those three things in practice.”

Seeking Clarity

Lawrence Solum, a constitutional law professor at the University of Virginia, owed this volatility to judges’ lack of clear guidance from the Supreme Court about how closely a challenged gun law must resemble a historical analogue for it to pass Bruen‘s test. In lieu of guidance, courts have had to make judgment calls, which vary from case to case.

“We don’t have a test that is likely to produce the same outcomes if it’s applied by different judges with different views about gun control,” Solum said. “A pro-gun control judge might say, ‘Of course, this is analogous,’ and an anti-gun control judge—one who is more sympathetic to the right to bear arms—would say ‘No, this is not a close analogy.’”

That’s not necessarily a new phenomenon post-Bruen, according to Josh Blackman, a constitutional law professor at the South Texas College of Law. “Before Bruen, you had Heller for a decade, and the courts did whatever they wanted. I’m not sure it’s worse than the previous state, but it creates a problem.”

Laws that prohibit gun possession in designated “sensitive places” have faced these disagreements acutely.

Chief Judge Renée Marie Bumb of the US District Court for the District of New Jersey ordered the state to stop enforcing provisions that prohibit gun possession in parks, libraries, bars, and more, after finding the government’s historical examples of such restrictions insufficiently analogous to modern regulations. Her injunction has since been stayed, pending the state’s appeal to the US Court of Appeals for the Third Circuit.

Whereas in New York, a similar “sensitive places” legal challenge received the opposite reception. Gun owners appealed to the US Court of Appeals for the Second Circuit in July after a district court denied their preliminary bid to block the state’s ban on carrying firearms in places of worship. Separate challenges to “sensitive places” bans are ongoing in New York, California, and Hawai’i.

There aren’t many early American gun laws limiting firearms from sensitive places, Winkler said. That leaves a lot of unknowns for judges trying to determine which laws pass constitutional muster.

“The court did not make crystal clear what counts as a sensitive place. Is a place sensitive because there are children there? Is it sensitive because there is money there?” Winkler said. “The Supreme Court’s really put lower courts in a bind.”

Upcoming Decision

Rahimi doesn’t concern sensitive places legislation, but experts anticipate the Supreme Court might use the case to clarify how similar a gun law must be to its historical counterpart for it to pass Bruen‘s test.

“The court has an opportunity with Rahimi to provide some more guidance about what the history and tradition analysis should look like, whether it has to be an exact analogue to historic firearm regulation or an analogue that is in the spirit of historic regulations,” Melissa Murray, a professor of constitutional law at New York University, said. “I think that’s really what the lower courts have been struggling with.”

Under an exact match regime, Murray said that the government might struggle to defend the law in Rahimi, because domestic violence wasn’t prosecuted as a crime until the late 20th century. “The law actually licensed men to batter their female partners with impunity. That changes, but if we’re looking purely at the history, you’re not going to find comparable regulations.”

Should the Supreme Court side with Rahimi, wide swathes of existing gun legislation—including sensitive places laws—could be implicated.

“So many circumstances in contemporary life were not circumstances that would have been contemplated or known at the time the Second Amendment was ratified,” Murray said. “Linking our understanding of fundamental rights to 1789, a time when only white men were engaged in the process of making laws, really shuts out a lot of individuals.”

“We’re looking for historic analogues to domestic violence disarmament laws,” she said. “We’re not going to find that because it didn’t exist.”

The Office of the Federal Public Defender represents Rahimi.

The case is United States v. Rahimi, U.S., No. 21-11001, set for argument 11/7/23.