lawrota.com

The U.S. Supreme Court, led by Justice Clarence Thomas, is reconsidering its 2022 landmark decision that established a new standard limiting the constitutionality of gun regulations. Thomas, an originalist, insists on interpreting the Second Amendment based on historical context, asserting that gun regulations must align with the nation’s “history and tradition.” However, this approach faces criticism for overlooking the historical context, especially regarding issues like domestic violence and women’s rights. The court’s recent review of the case United States v. Rahimi indicates a potential shift, as justices seem reluctant to fully embrace the “history and tradition” standard, recognizing its limitations and flaws. The case involves a challenge to a federal law barring individuals under domestic violence restraining orders from possessing guns. While Thomas and Justice Samuel Alito may remain skeptical of the law, a majority of the court appears inclined to uphold restrictions on gun ownership for those deemed dangerous, particularly in cases involving domestic violence.

The case involves Zackey Rahimi, subject to a protective order after assaulting his then-girlfriend. The law in question, 18 U.S.C. § 922(g)(8), was contested post the 2022 Bruen decision, asserting that gun restrictions must align with historical traditions. The U.S. Court of Appeals for the 5th Circuit, referring to Bruen, nullified Rahimi’s conviction, emphasizing the absence of a well-established historical analogue supporting the law.

Representing the government, Solicitor General Elizabeth Prelogar argued against the destabilizing consequences of the 5th Circuit’s decision. She contended that Bruen acknowledged Congress’s authority to disarm non-law-abiding citizens based on historical examples, such as loyalists during the Revolutionary War, felons, and drug addicts. Some justices probed Prelogar on defining a “responsible” or “law-abiding” citizen, with Chief Justice Roberts questioning the broad concept of responsibility. Justice Barrett acknowledged the danger of domestic violence but queried how the government establishes the peril of other behaviors. Justice Jackson criticized the “history and tradition” test, highlighting its exclusionary nature.

Representing Rahimi, J. Matthew Wright faced skepticism from the justices. Chief Justice Roberts implied Rahimi’s dangerousness, and Justice Kagan interpreted Wright’s position as demanding a historical regulation akin to the current law. Justice Alito questioned whether individuals, aside from felons, could be barred from owning firearms at home. Wright’s responses led to confusion among the justices, and Justice Kagan suggested he was avoiding the implications of his argument. Justice Kavanaugh raised concerns about the potential impact on the federal background check system, indicating that a ruling in Rahimi’s favor could allow those under domestic-violence protective orders to buy firearms without restriction.