Supreme Court oral arguments on major Second Amendment case

After roughly 100 minutes of oral arguments, the Supreme Court seemed poised Tuesday to rule in favor of a federal law that bars individuals subject to certain domestic violence restraining orders from possessing firearms, as it was used against a Texas man.

The case marked the first substantive Second Amendment case to come before the justices since they issued a landmark opinion last year expanding gun rights nationwide.

For more than an hour of arguments, the justices referred to that case with a majority of the court indicating that the law at issue falls comfortably within the nation’s historical tradition of limiting Second Amendment rights when it comes to individuals who pose a danger to society.

When the court issues its opinion expected in several months, it likely will not resolve the confusion in lower courts concerning the framework judges should use as they consider a wide variety of gun laws.

The opinion could end up being closely tied to the facts in the case at hand, making clear, at the very least that the Second Amendment does not protect those who have been found to pose a dangerous threat to society.

But the opinion may not answer lingering questions concerning defendant’s due process rights or laws banning assault weapons, or barring the possession of guns for non violent felons.

The ruling is expected by July.

Liberal Justice Ketanji Brown Jackson pointed out what she called a “flaw” in the court’s decision in a 2022 Second Amendment case that said lower courts must look to the nation’s “historical tradition” when examining gun laws.    

“I guess I'm a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts,” she told Wright.

“So what do we do with that? Isn’t that a flaw with respect to the test.” 

Solicitor General Elizabeth Prelogar ended oral arguments Tuesday by telling the justices that the court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen has produced “destabilizing consequences” for the nation’s cache of gun laws.  

Prelogar told the justices that the ruling has been wreaking havoc in courts across the country. 

"I think that it's important for the court to understand the destabilizing consequences of that reading in the lower courts. 

The solicitor general went on to point out a number of court rulings invalidating various provisions of federal gun laws.  

“Many courts now -- several district courts -- have credited as-applied challenges to Section 922 (g)(1) by armed career criminals who have multiple convictions for aggravated assault, drug trafficking, armed robbery -- clearly violent crimes -- because we don't have a sufficient historical analog disarming those subject to precisely those crimes at the founding,” Prelogar said. 

Indeed, lower courts have had to revisit the nation’s gun laws in the wake of Bruen, including the appeals court that handled the case heard by the Supreme Court on Tuesday.  

Chief Justice John Roberts drew laughs from the courtroom at one point when he led Zackey Rahimi’s attorney to concede that his client is a dangerous person.  

“Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?” Roberts asked. 

“Your Honor, I would want to know what 'dangerous person' means,” the attorney, J. Matthew Wright, began to say, before Roberts interjected. 

“That's fair,” Wright responded. 

Part of Rahimi’s history with the law includes a spate of shootings in Texas, culminating on January 7, 2021, when he fired shots in the air at a Whataburger restaurant after his friend’s credit card was declined.  

Liberal Justice Elena Kagan got right to one of the key issues in the case when she asked J. Matthew Wright, Rahimi’s attorney, whether the court must find a law in the nation’s history similar to the one at issue in order to uphold it. 

“Is that what we should be looking for and if we don't find that similar ban, we say that the government has no right to do anything?” she asked. 

“Your Honor, I think that's largely what Bruen says. However, I don't think it has to be so narrow,” Wright replied, referring to the 2022 case that said the nation’s gun laws had to be consistent with the nation’s “historical tradition.” 

“So if the government could affirmatively prove from the historical tradition of either American firearms laws, or even I would be willing to spot them the way that we have treated other fundamental constitutionally protected rights, if they could tie it to one of those historical traditions, that would be good enough under the logic of Bruen, if not the exact rule,” he added.  

Chief Justice John Roberts at one point asked Solicitor General Elizabeth Prelogar about the test the Biden administration wants the court to adopt in the case, a question that underscores how the 2022 Bruen Second Amendment case left some key questions unanswered.  

“Just to be clear, your argument today is that (the Second Amendment) doesn't apply to people who present the threat of dangerousness, whether you want to characterize them as responsible or irresponsible, whatever the test that you're asking us to adopt turns on dangerousness,” Roberts said.  

“Correct. For those who are not responsible citizens." Prelogar replied. “I do want to be clear that we think there are different principles that apply with those who are not law abiding.” 

She continued: “So, I just want to be clear, we don't think dangerousness is necessarily the standard there, although there's obviously going to be a lot of overlap. That's defined by its own history and tradition, but we do think that dangerousness defines the category of those who are not responsible.”  

Though the court could issue a broad ruling that includes a test of some sort, it could also decide the case on a much narrower ground that allows it to punt on some of the questions being explored Tuesday.  

Justice Elena Kagan, in the minority of last year’s Bruen ruling, gets to a key point that since it came down, lower courts have been confused to say the least on what it means.  

She asked Prelogar directly for “useful guidance” SCOTUS can give “about the methodology that Bruen requires be used and how that applies to cases even outside of this one?"

Prelogar suggested three things the court can do. 

First, lower courts have “embraced the idea that the only thing that matters under Bruen is regulation. In other words, you can't look at all of the other sources of history that usually bear on original meaning.” 

Second, courts don’t know how deep to go when it comes to matching historical evidence. 

“Court after court has looked at the government's examples and picks them apart to say well, taking them one by one, there's a minute difference between how this regulation operated in 1791 or the ensuing decades and how section 922 provisions operate today,” Prelogar said. 

“And I think that comes very close to requiring us to have a dead ringer when Bruen itself said that's not necessary. The way constitutional interpretation usually precedes is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right. And so we think that you should make clear the court should come up a level of generality and not nitpick, but the historical analogues that we're offering to that degree.” 

Third, the administration believes that courts are putting too much emphasis on the lack of a law from the founding-era as meaning that one can’t be imposed. 

“Courts are placing dispositive weight on the absence of regulation in a circumstance where there's no reason to think that that was due to constitutional concerns,” Prelogar said. “So for example, here we don't have a regulation disarming domestic abusers. But there is nothing on the other side of the interpretive question in this case to suggest that anyone thought you put in disarm domestic abusers or couldn't disarm dangerous people.”

J. Matthew Wright, an attorney with the Federal Public Defender’s Office in Amarillo, Texas, is now in the hot seat.

Wright represented Zackey Rahimi, the man at the center of Tuesday’s case, before both the appeals court – in which he won – and the Texas trial court in which Rahimi was convicted.