Supreme Court oral arguments on major Second Amendment case

Gun safety and domestic violence prevention organizations gather outside of the Supreme Court before oral arguments are heard in United States v. Rahimi on November 7 in Washington, DC.

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. 

Los Angeles County Sheriff, Alex Villanueva, speaks beside an image of a seized semi-automatic weapon as he briefs the media after the arrest of a 13-year-old boy who allegedly threatened to carry out a shooting at Animo Mae Jemison Charter Middle School, in Los Angeles, California, on November 22, 2019.

California bans on assault weapons and high-capacity magazines are two of the more notable laws blocked or overturned as a result of the 2022 Supreme Court’s Bruen ruling.

Last month, US District Judge Roger Benitez ruled that the assault-weapon ban impedes on residents’ Second Amendment rights and has no historical precedent.

The state argued the law aims to prevent mass shooters from gaining access to assault weapons. But Benitez countered many of the banned firearms are also commonly used by “law-abiding” citizens for self-defense.

In September, Benitez blocked the California ban on high-capacity magazines on similar grounds.

“There is no national tradition of prohibiting or regulating firearms based on firing capacity or ammunition capacity.”

The state is appealing the decisions.

Several of the conservative justices pressed Solicitor General Elizabeth Prelogar on her argument that “responsible” and “dangerous” mean the same thing in the context of disarming some citizens.  

“General, would you just briefly define what you mean by law abiding and responsible?” Conservative Justice Clarence Thomas asked.  

“Of course, Justice Thomas. So, I would break that into its two constituent components with respect to those who are not law-abiding … And tradition shows that that’s defined by those who have committed serious crimes defined by the felony level punishment that can attach to those crimes,” she replied.  

“This case focuses on the not responsible citizens principle. And in this context, we think that history and tradition show that applies to those whose possession of firearms would pose an unusual danger beyond the ordinary citizen with respect to harm to themselves or harm to others,” Prelogar added.  

The solicitor general is equating the two terms because part of her argument is centered on the idea that even if there’s not a clear history in the US of disarming people subject to domestic violence restraining orders, there is a history of keeping guns away from people who could pose a danger to others – that is, irresponsible individuals.   

Thomas wrote the Bruen decision last year that changed the way lower courts must look at gun control laws, establishing that that firearms regulations must be consistent with the nation’s “historical tradition.”

Solicitor General Elizabeth Prelogar kicked off Tuesday’s oral arguments by delivering a brief argument in defense of the federal gun law at the center of the case. 

“Congress designed (the gun law) to target the most dangerous domestic abusers,” she told the justices in her opening statement. “The Fifth Circuit profoundly erred in reading this Court’s decision in Bruen to prohibit that widespread commonsense response to the deadly threat of armed domestic violence.” 

Going to the new standard of a historical analogue when it comes to the Second Amendment that the court imposed last year, Prelogar said the 5th Circuit erred by striking down the law blocking domestic abusers from obtaining firearms.

Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett.

Two justices to watch on Tuesday, because of their ability to tip the outcome of the case, are Justice Brett Kavanaugh, who wrote a concurring statement in the 2022 Bruen dispute, and Chief Justice John Roberts, who signed on to it.

Although Kavanaugh fully joined the majority opinion written by Justice Clarence Thomas significantly boosting gun rights, Kavanaugh emphasized in his separate statement that such rights are not unlimited.

Kavanaugh then quoted a key portion of the justices’ earlier decisions on gun rights, saying, “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Another justice who may take a prominent role in the new case is Amy Coney Barrett, to whom both sides have tried to appeal in their written briefs. They have quoted lines from a 2019 opinion she wrote when still on a federal appellate court. She observed then that legislatures have disarmed “dangerous people who have not been convicted of felonies.” (Rahimi had been subject to a domestic violence restraining order, not yet convicted.) But Barrett also in 2019 stressed the importance of being true to the text of the Second Amendment and providing limiting principles for any gun regulation.

In the 2022 Bruen case, Barrett wrote a concurring statement focused on interpreting the original meaning of the Second Amendment and warned against “freewheeling reliance” on more recent historical practice.

When the Supreme Court enhanced the Second Amendment right “to keep and bear arms” in 2022, the justices said a gun regulation could be upheld only if it had some historic analogue.  

But deciding whether current regulation is consistent with an ancient law is no easy task. The new court doctrine, rooted in country’s 18th century founding, has proved especially thorny in cases involving modern dilemmas.

The controversy on Tuesday gives the justices their first opportunity to clarify how exactly centuries-old tradition should be interpreted and what types of analogues will suffice. 

The law being challenged prohibits anyone subject to such a domestic-violence protective order from possessing a firearm. The 5th US Circuit Court of Appeals earlier this year declared the prohibition “an outlier that our ancestors would never have accepted.” 

But groups focused on preventing domestic violence, along with those seeking to help clarify the new approach to gun regulation, are urging a more nuanced reading of the 2022 case of New York State Rifle & Pistol Association v. Bruen. 

The high court’s resolution of the dispute involving Zackey Rahimi will influence what measures the government can take to prevent gun violence, particularly in domestic situations.

A Texas state court, reviewing evidence of Rahimi’s attack on his girlfriend in an Arlington, Texas, parking lot, found that Rahimi had “committed family violence” and prohibited him from approaching or threatening her. After Rahimi later became a suspect in a series of shootings, and weapons were found at his home, he was charged with violating a 1994 federal law that bars a person subject to a protective order from possessing a firearm. 

Justice Clarence Thomas, who wrote the majority opinion in the 2022 Bruen case, said that when judges confront present-day firearms regulations, “analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin.” He said that “analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” 

When judges compare regulations, the high court majority said, they should look at “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” 

More than two dozen groups seeking to prevent domestic violence argued in a “friend of the court” brief that the Bruen reasoning requires a nuanced approach. 

They observed that it wasn’t until the late 20th century that states and localities adopted laws to protect victims of domestic violence and to hold abusers accountable. But they contend that the historical pattern of laws disarming “dangerous” people can be applied to the current case. 

The collection of 27 groups, which includes the Alliance for Gun Responsibility in Washington state and the Battered Women’s Justice Project, based in Minnesota, added that, “armed domestic abusers pose an extraordinary threat to public safety. Seventy women are shot and killed each month in the United States by their intimate partner.” 

Department of Justice lawyers, defending Rahimi’s prosecution, offer an expansive analogue to laws involving people who were not “law-abiding, responsible citizens.” 

“For example, during the Revolutionary War, the Continental Congress recommended, and many States adopted, laws disarming loyalists. States in the 19th century disarmed minors, intoxicated persons, and vagrants. And Congress in the 20th century disarmed felons and persons with mental illnesses.  

“Although different statutes disqualified different groups at different times, they reflect the same enduring principle: Legislatures may disarm those who are not law-abiding, responsible citizens.” 

Rahimi’s lawyers, in their filings, insist the federal government has found no sufficient analogue for denying guns to people subject to restraining orders: “Despite casting an incredibly broad net, the Government has yet to find even a single American jurisdiction that adopted a similar ban while the founding generation walked the earth.” 

Returning to that era and the path the justices set out in the Bruen case, they may now illuminate just how close any analogue must be. 

Zackey Rahimi.

Zackey Rahimi, the Texas criminal defendant challenging a federal gun law before the Supreme Court on Tuesday, said this summer that he no longer wanted to own firearms and expressed remorse for his actions that got him in trouble with the law.

“I will make sure for sure this time that when I finish my time being incarcerated to stay the faithful, righteous person I am this day, to stay away from all drugs at all times, do probation & parole rightfully, to go to school & have a great career, have a great manufacturing engineering job, to never break any law again, to stay away from the wrong circle, to stay away from all firearms & weapons, & to never be away from my family again,” Rahimi, who is being held at a Fort Worth jail, said in a handwritten letter dated July 25.

He continued: “I had firearms for the right reason in our place to be able to protect my family at all times especially for what we’ve went through in the past but I’ll make sure to do whatever it takes to be able to do everything the right pathway & to be able to come home fast as I can to take care of my family at all times.”

Rahimi, who is challenging his conviction under a federal law that bars individuals subject to domestic violence restraining orders from possessing a firearm, is being held at the jail under separate charges stemming from a series of gun-related incidents.

In the letter, addressed to a state judge and district attorney, Rahimi said he has become “a new person” since being incarcerated several years ago and asked for a plea deal that would include a lighter sentence.

Supporters of gun rights have said that Rahimi, who has a history of violent behavior, is not the ideal person to be at the front of this Second Amendment case. Still, the dispute represents a fresh opportunity for the majority-conservative court to take another look at the Second Amendment following a landmark decision last year that expanded gun rights nationwide.

As the Supreme Court considers Tuesday whether it should overturn part of a federal gun law, it will hear opposing arguments from the Biden administration’s top lawyer and a lesser-known federal public defender representing the criminal defendant at the center of the case.  

James Matthew Wright, an attorney with the Federal Public Defender’s Office in Amarillo, Texas, will urge the justices to declare unconstitutional the federal gun law in what will be his most consequential Supreme Court case to date. 

Wright previously participated in just two cases before the high court, he said in an interview last year with the Texas Appellate Law Podcast. Though he didn’t present oral arguments in those cases – both of which dealt with criminal law – the Supreme Court ruled against his team in the first one and in favor of his team in the second. 

“Even though I wasn’t the one who was going to stand up and argue, I was filled with an odd mix of pride, anxiety, fear, excitement, and hope,” Wright wrote in a 2011 blog post after oral arguments in the first case, noting he was admitted to the Supreme Court bar the day the case was heard. 

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. 

He’s set to tell the conservative-majority court Tuesday that the gun law at issue should be struck down in light of a 2022 landmark Second Amendment case that changed the test courts must use when examining the nation’s gun laws. 

A graduate of the University of Arkansas School of Law, Wright clerked for a federal judge in Houston after school and briefly worked in private practice before becoming a public defender in Amarillo. 

Supreme Court Justice Samuel Alito and Solicitor General Elizabeth Prelogar.

Solicitor General Elizabeth Prelogar often has an uphill climb against the conservative majority, but in one of her earliest encounters with Justice Samuel Alito, at the Shakespeare Theater Company in 2016, she and Alito ended up on the same side.

The Romeo and Juliet tragedy was at the center of the mock trial as it tested a wrongful death lawsuit brought by their parents (the Montagues and Capulets) against Friar Laurence, who had secretly married the young couple then helped Juliet fake her death.   

Alito presided as the “chief justice” and Prelogar defended the Friar.

Then she delivered her closing remarks in a sonnet form, “because Iambic pentameter is exceedingly persuasive.”   

After the mock panel deliberated, Alito and the others returned to the bench to deliver their ruling. He praised the lawyers on both sides of the case. “From now on,” he quipped, “I’m going to expect all the briefs from the solicitor general’s office to be in iambic pentameter.”    

He then announced that Prelogar had prevailed in her defense of the Friar. Referring to the fact that the audience had separately taken its own vote, Alito joked, “Since this is a principality, it really doesn’t matter how the people voted.”   

Hunter Biden departs federal court after a plea hearing in Wilmington, Delaware, in July.

Tuesday’s case could impact the legal future of President Joe Biden’s son Hunter, who has been charged with another federal firearms law blocked thanks to Bruen.  

Hunter Biden is charged with breaking a law prohibiting the possession of firearms by a person who is an “unlawful user of or addicted to any controlled substance.” (He has pleaded not guilty.)

The 5th Circuit struck the law down earlier this year, relying heavily on both Bruen and its Rahimi rulings. 

Patrick Daniels was stopped in 2022 for driving without a license plate. A search of the car uncovered several marijuana cigarette butts, a loaded pistol and a loaded rifle. A federal grand jury indicted Daniels for possessing a firearm as an unlawful user of a controlled substance. The 5th Circuit held that the law is not “consistent with our tradition of gun regulation.”  

Hunter Biden’s legal team has signaled it plans to use the appeals court’s decision as part of its defense, with his attorney Abbe Lowell previously telling CNN that “the constitutionality of these charges are very much in doubt.”  

Solicitor General Elizabeth Prelogar will be at the lectern Tuesday, defending the law that prohibits persons subject to domestic violence protective orders from possessing a firearm.

Prelogar grew up in Boise, Idaho, graduated from Emory University and then Harvard Law School. As a teen, she entered state pageants and won the Miss Idaho title in 2004. She said she used the pageant scholarship money for law school.    

The early pageant work may also contribute to her ease at the courtroom lectern and economy of language, shed of the usual “ums” and “ahs” that plague many lawyers.

Solicitor General Elizabeth Prelogar.

Prelogar first became familiar with the inner workings of the Supreme Court as a law clerk to liberal Justices Ruth Bader Ginsburg and Elena Kagan.

From 2014 to 2019, Prelogar was an assistant to the solicitor general arguing less prominent cases before the justices, and was separately detailed to an investigation into Russian interference in the 2016 presidential election, under special counsel Robert Mueller. In 2021,

President Joe Biden nominated her to be US solicitor general, and the Senate confirmed Prelogar by a vote of 53-36. Only six Republicans joined Democrats to approve her.

US Supreme Court Justices pose for their official photo in Washington, DC, in October 2022.

It was only a year ago that the Supreme Court issued a landmark Second Amendment opinion that expanded gun rights nationwide and established that firearms rules must be consistent with the nation’s “historical tradition.”

Majority opinion author Justice Clarence Thomas infuriated supporters of gun control and elated advocates of gun rights but also generated confusion among lower court judges who found themselves reconsidering thousands of firearms rules.

Now, on Tuesday, the justices will gather again, in the wake of yet another mass shooting, to consider the scope of its 2022 decision in New York State Rifle & Pistol Association v. Bruen, this time in the context of domestic violence.

The Supreme Court is considering a section of federal law that bars an individual subject to a domestic violence restraining order from possessing a firearm.

The Supreme Court’s ultimate decision could impact almost every type of gun control law, including one that President Joe Biden’s own son is charged with violating.

Lower courts have cited Bruen in cases blocking laws restricting the use of concealed firearms, prohibiting guns in houses of worship and banning assault weapons.

Last month in California, for instance, a federal judge struck down an assault weapon ban the state argued was needed to prevent mass shooters from acquiring those weapons. Many of the banned guns, the judge said, are also commonly used by “law-abiding” citizens for self-defense.

“California’s answer to the criminal misuse of a few is to disarm its many good residents. That knee-jerk reaction is constitutionally untenable, just as it was 250 years ago,” Judge Roger Benitez wrote.

Read more ahead of the Supreme Court case on gun ownership here.