Supreme Court upholds federal gun ban for those under domestic violence restraining orders

The Supreme Court Friday upheld a federal law that bans guns for those subject to domestic violence restraining orders (DVROs) in the first major test of the Second Amendment at the high court this term.

In an 8-1 opinion authored by Chief Justice Roberts, the court's majority said, "[W]e conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." Justice Clarence Thomas was the lone dissenter.

Both liberal and conservative justices agreed with the Biden administration that there was a history and tradition of keeping firearms from dangerous persons, despite the lack of any specific ban that may have been in place when the Constitution was enacted in the 1790s.

The case, U.S. v. Rahimi, is first major test of the Second Amendment since a high court ruling in 2022 expanding rights of law-abiding citizens to carry handguns outside the home for protection, and could have major implications for several gun-rights measures working their way through the legal system and in state legislatures.

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The conservative majority in that case known as "Bruen" said gun regulations must be consistent and analogous with "the Nation's historical tradition of firearm regulation" in order to withstand present-day constitutional scrutiny.

It could also affect current cases that deal with whether current and former drug users can similarly be denied gun ownership – like that of Hunter Biden. The president's son plans to challenge his conviction this month for lying on a federal registration form in 2018 about his addiction when buying a firearm.

The case before the court stemmed from a lawsuit that involves a Texas man, Zackey Rahimi, who – under a DVRO – argued he still had a right to keep a gun for self-protection. Rahimi was charged with separate state offenses that began with the 2019 physical assault of his ex-girlfriend and later another woman by use of firearms.

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 A Texas court in a civil proceeding found Rahimi had "committed family violence," then granted his former girlfriend a protective order that included suspension of Rahimi's gun license. Court records show he was warned gun possession under the protective order would be a federal offense.

After repeatedly violating the order, including approaching the victim and threatening her, Rahimi was also accused of firing a gun in public in five different locations within a span of weeks. Police then searched his residence and found handgun, rifle, and ammunition.

While contesting some of the allegations against him, he pleaded guilty to a violation of federal law for later possessing a handgun despite an earlier restraining order, but then appealed.

The 5th Circuit U-S Court of Appeals ruled for Rahimi, saying the federal restriction was unconstitutional since there was no historical analog justifying the burden on individual self-defense rights.

 A major question was whether there was a precise analog now to the 18th century legal concept of domestic violence and gun rights-- that would give modern day legislatures and courts the discretion to limit gun possession for those deemed dangerous or irresponsible.

Friday's decision in the DVRO case was narrow in scope, focusing only on whether the Second Amendment protects those considered a danger to society.

"When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect," the Chief Justice wrote for the majority. 

"Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, [the statute] fits comfortably within this tradition," he wrote.  

Six justices filed separate concurrences, agreeing with the outcome, but offering separate thoughts on the scope of the majority opinion—signaling some concerns with Roberts’ reasoning laid out in the majority opinion.

Those were Justices Sonia Sotomayor – supported by Elana Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson.

Thomas wrote a long dissenting opinion. 

"The question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime. It cannot," he said. 

"The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence. The Government has not borne its burden to prove that [the statute] is consistent with the Second Amendment’s text and historical understanding.

 "The Framers and ratifying public understood ‘that the right to keep and bear arms was essential to the preservation of liberty,'" he continued. 

"Yet, in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more. I respectfully dissent," he said.