(WASHINGTON) — A majority of Supreme Court justices on Tuesday appeared inclined to uphold a 30-year-old federal ban on firearms for people under domestic violence restraining orders.
At the same time, during oral arguments in the case U.S. v. Rahimi, several conservative justices seemed to seek a narrow ruling that would reaffirm a generally expansive view of the Second Amendment.
The case comes at a time when firearms are a leading factor in intimate partner violence nationwide. A woman is five times more likely to die from a domestic abuse situation if a gun is involved, according to the Johns Hopkins Center for Gun Violence Solutions.
The law in question requires state and federal courts to submit restraining orders to the national criminal background check system, which in turn blocks an attempted gun purchase. More than 77,000 gun sales have been denied under the law since 1998, according to the FBI.
Zackey Rahimi, a Texas drug dealer who was indicted for gun possession in violation of a restraining order obtained by his girlfriend, is challenging the ban as lacking historical precedent. A federal appeals court agreed with him and said the law should be struck down.
Last year, the Supreme Court’s conservative majority said only laws that have roots in American history and tradition can deprive citizens of a firearm. The Rahimi case is the first major test of the newly-promulgated standard.
“The government is looking down a dark well of American history and only seeing a reflection of itself,” Rahimi attorney Matthew Wright told the justices.
As hundreds of domestic violence survivors and gun safety advocates rallied outside the Court, U.S. Solicitor General Elizabeth Prelogar vigorously defended the law as consistent with the nation’s long history of keeping guns from people who are not law-abiding or responsible.
“It’s an easy case,” Prelogar said. “The constitutional principle is clear. You can disarm dangerous persons.”
She said the law guards against a “profound harm” to women, the general public and law enforcement officers — and that Congress and legislatures in 48 states have embraced that view.
“I was struck by the data showing that armed domestic violence calls are the most dangerous type of call for a police officer to respond to in this country,” Prelogar told the justices. “And for those officers who die in the line of duty, virtually all of them are murdered with handguns.”
Justices Brett Kavanaugh and Amy Coney Barrett appeared to show support for the law. Both suggested that — even if there is not a “historical twin” for a law banning guns for people subject to domestic violence restraining orders — “dangerousness” of a person has long been a basis for gun restrictions.
The court’s liberal justices, who have been highly critical of the “history and tradition” test for gun restrictions, slammed the fact that the ban on guns for domestic abusers is even in question before them.
“I’m a little troubled. We have a history and tradition test that requires a culling of the history where only some people’s history counts,” said Justice Ketanji Brown Jackson.
Justice Elena Kagan pressed Rahimi’s attorney in seeming disbelief of what he was arguing.
“Do you think that the Congress can disarm people who are mentally ill, who have been committed to mental institutions?” Kagan asked Wright.
“There’s definitely a tradition for restricting sale or provision of weapons to the mentally ill,” Wright responded, “so I think ‘maybe’ is the answer to the tradition.”
Kagan accused Wright of ignoring the sweeping implications of his case.
“The implications of your argument are just so untenable,” she said. “Your argument applies to a wide variety of disarming actions, bans, what have you, that we take for granted now because it’s so obvious that people who have guns pose a great danger to others and you don’t give guns to people who have the kind of history of domestic violence that your client has or to the mentally ill.”
Several conservative justices, however, voiced concerns about the law’s potential to deprive non-violent Americans of their gun rights for an extended period of time — and without adequate due process.
“We’re told … that there are situations in which a family court judge who has to act quickly and may not have any investigative resources faces a he/she said situation, and the judge just says, ‘Well, I’m going to issue an order like this against both of the parties,"” said Justice Samuel Alito.
Prelogar disputed that it’s a common occurrence.
Justice Clarence Thomas worried the implications of upholding the law might be too broad: “What if someone is considered ‘not responsible’ for not storing their firearms properly?” he said.
Chief Justice John Roberts appeared to echo some of those concerns.
“Responsibility is a very broad concept,” Roberts said. “I mean, not taking your recycling to the curb on Thursdays. I mean, if it’s a serious problem, it’s irresponsible. Setting a bad example, you know, by yelling at a basketball game in a particular way. It seems to me that the problem with responsibility is that … what seems irresponsible to some people might seem like, well, that’s not a big deal to others.”
Prelogar said the standard for “responsible” citizen should be “dangerousness” with respect to the use of firearms.
The justices will vote on the case and spend the upcoming months drafting a decision, which is expected for release by the end of June.
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