The Supreme Court’s commitment to gun rights faces a challenging test

The major gun rights case that the Supreme Court will hear on Tuesday presents the justices with a difficult problem.

They should start clearing up the confusion they created last year in a landmark decision that revolutionized Second Amendment law by saying that historical practices from long ago are all that matter in assessing the problems with gun laws . That standard has roiled the lower courts as they struggle to track down references to obscure or now-forgotten regulations.

Assessing the constitutionality of gun laws has turned into a “historical game of ‘Where’s Waldo?’” Judge Holly A. Brady of the Federal District Court in Fort Wayne, Ind., wrote December.

But this week’s case is an imperfect means of clarifying the scope of the Second Amendment.

It concerns a drug dealer from Texas with a history of armed violence, who was convicted of violating a federal law aimed at preventing domestic violence. A conservative appeals court, with a reputation for extremism, struck down that law, saying it had failed to find an appropriate historical analogy.

In other words, the case is not attractive to groups seeking to expand Second Amendment rights. And the justices will consider it as the country is still reeling from the year’s deadliest mass shooting, which left 18 people dead in Lewiston, Maine.

Since last year’s gun rights decision, New York State Rifle & Pistol Association v. Bruenjudges have complained about the nature and extent of the work this entails, which involves historical research in which they have no expertise. Unable to agree on a consistent methodology, they have taken different decisions, not only on the law on domestic violence, but also on the law on the disarmament of criminals, 18-20 year olds and users of illegal drugs.

By “adopting an inconsistent and amorphous standard, the Supreme Court has created mountains of work for district courts who must now deal with Bruen-related arguments in almost every criminal case in which a firearm is found,” wrote Judge Brady, who was appointed by President Donald J. Trump.

The Supreme Court should use the domestic violence case to explain, refine, and perhaps abandon the new standard Jacob D. Charlesa law professor at Pepperdine University.

“The court must provide more details on how the historical investigation should be conducted,” he said. “And that will tell us about the extent of the government’s ability to respond to gun violence that the founding generation simply didn’t have to deal with.”

Writing for the six-justice majority in Bruen last year, Justice Clarence Thomas said the usual ways of assessing whether a law violates the Constitution do not apply to the Second Amendment. Only history counts, he wrote.

“The government must demonstrate that the regulations are consistent with this country’s historic tradition of firearms regulation,” he wrote, meaning that the constitutionality of modern gun control measures depends on whether the government can demonstrate that in the 18th and 19th century similar laws existed. .

That test, Khiara M. Bridgeswrote a law professor at the University of California, Berkeley, last year The Harvard Law Review“has made the right to bear arms the most protected right in the Constitution.”

In a new study in The Duke Law Journal, Professor Charles examined more than 300 decisions applying the new standard in the 12 months following last year’s decision. More than two dozen rejected state or federal laws, including ones that set age limits, imposed strict licensing requirements, restricted so-called assault weapons and barred weapons from sensitive areas.

Other studies have found that judges’ partisan preferences are associated with their likelihood of overturning post-Bruen gun regulations.

“On average, judges appointed by Republican presidents are 1.8 times as likely to grant relief as judges appointed by Democratic presidents.” a new study to be published in the Virginia Law Review found online. The research was conducted by Erik Ruben from Southern Methodist University, Rosanna Slim of the RAND Corporation and Ali Rohani-Rahbar from the University of Washington.

This means a shift, according to a preliminary analysis Lee Epstein And Rebecca Brown from the University of Southern California and Mitu Gulati from the University of Virginia.

They found that in the fourteen months before Bruen, Democratic and Republican appointees rejected Second Amendment claims at statistically the same rate. After Bruen, they found, Democrats voted against Second Amendment challenges 94 percent of the time, compared to 66 percent of the time for Republicans.

“If the court in Bruen set out to limit judicial discretion,” Professor Epstein said, “it may have missed its mark.”

The new Supreme Court case began in 2019, when Zackey Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, prompting her to get a restraining order. A judge ruled that Mr Rahimi had “committed family violence” and that such violence was “likely to occur again.”

The order suspended Mr Rahimi’s firearms license and banned him from possessing firearms. But Mr. Rahimi blatantly ignored the order, court records show.

He threatened another woman with a gun, leading to charges of assault with a deadly weapon. He then opened fire in public five times in two months.

For example, angry about a social media post from someone he had sold drugs to, he shot an AR-15 rifle into his former client’s home. When a fast food restaurant declined a friend’s credit card, he shot several bullets into the air.

The shootings led to a search warrant at Mr.’s home. Rahimi, which uncovered weapons, and he was charged with violating a federal law that makes possession of guns a crime for people subject to a domestic violence order.

After a judge rejected his Second Amendment challenge to the law, he pleaded guilty and was sentenced to more than six years in prison. The United States Court of Appeals for the Fifth Circuit initially upheld his conviction a short decisionrejecting in a footnote the argument that the law violated the Second Amendment.

But the court of appeal reverse course after the Supreme Court ruled on Bruen, striking down a variety of old laws identified by the government as possible analogues, saying they were not sufficiently similar to those relating to domestic violence.

The Fifth Circuit is dominated by Republican appointees and has issued a series of aggressively conservative rulings that have received a frosty reception from the Supreme Court, which is itself quite conservative, on issues such as immigration, abortion pills, dealings with social media companies and so-called ghost stories. guns. Some of the Supreme Court’s rulings were provisional, but… the overall picture is one of an appeals court that is out of step with the judges.

In other gun law cases, judges have questioned the wisdom of looking to the distant past to address contemporary problems.

“An honest search for an ‘American’ tradition of gun regulation is particularly challenging, given that well over half of the U.S. population—including women, blacks, and others—has generally been barred by law from political participation. at the time of the passage of the Second Amendment. and decades after,” Judge Mark A. Goldsmith of the Federal District Court in Detroit, appointed by President Barack Obama, wrote in February.

About 30 states have laws similar to Mr. Rahimi’s.

A recent report of the RAND Corporation examined available research and found “moderate evidence” that those laws “reduce the overall number of homicides and firearm-related homicides of intimate partners.”

The federal law at issue in this case United States v RahimiNo. 22-915, is not often used, and it is rarely the only charge when it is.

The New York Times found just 63 federal cases nationwide in the past five years in which people had been indicted on charges of possessing a gun while under a domestic violence protection order, including Mr. Rahimi. In only 20 of those cases, prosecutors have charged a person solely with possessing a gun while under a protective order.

But the law also has a deterrent effect, both by discouraging domestic violence that is subject to a ban on gun ownership and by playing a role in background checks. Since 1998, when federal background checks began, more than 77,000 attempts have been denied by people who were victims of domestic violence and were banned from purchasing firearms.

In defending the law, the Biden administration relied on broad language in previous decisions, saying the Second Amendment protects only “law-abiding, responsible citizens” and adding that there was nothing unusual about disarming dangerous people in the era of its founding.

Mr Rahimi’s lawyers responded that the government’s historical analogies were too extensive.

“Despite casting an incredibly wide net, the Administration has yet to find a single U.S. jurisdiction that passed a similar ban while the founding generation walked the earth,” the letter said.

Kim Barker reporting contributed.