Supreme Court stares down key test on Second Amendment case

The Supreme Court will face a key test on the Second Amendment on Tuesday when it hears arguments in a challenge to a federal law that criminalizes gun possession for people under domestic-violence restraining orders.

But the justices’ decision on the matter stands to impact an array of pending gun law challenges in lower courts, advocates on both sides say. A broadly written opinion could even reach as far as impacting Hunter Biden’s criminal case.

Tuesday’s argument marks the justices’ first plenary review implicating the Second Amendment since last summer’s landmark expansion of gun rights in NYSRPA v. Bruen, which established an individual’s right to carry a handgun for self-defense outside the home. 

Gun laws must be “consistent with this Nation’s historical tradition of firearm regulation,” the six conservative justices ruled.

Judges then quickly struck down an array of federal and state restrictions, and gun control groups decried the new test as dangerous.

Tuesday’s session will provide the first public glimpse into the justices’ thinking against that backdrop and test the limits of the new standard.

‘Hardly a model citizen’

Tuesday’s case arose after Zackey Rahimi leveraged Bruen to challenge his conviction under the 1994 federal crime bill’s criminal gun possession ban for people under domestic-violence restraining orders.

Rahimi was placed under a restraining order after he assaulted his girlfriend and threatened to shoot her, court filings show. After police later found a rifle and a pistol at Rahimi’s home when searching it in connection with an unrelated investigation, he was indicted on the gun charge.

The Biden administration’s Justice Department brought the case to the Supreme Court after losing at the 5th U.S. Circuit Court of Appeals, calling its decision “extraordinary” and “misguided.”

“You’re gonna have a whole lot more people, who are a threat of domestic abuse, they will be able to have guns,” said Douglas Letter, chief legal officer at Brady Center to Prevent Gun Violence.

“And that’s really important, because way more women and children will die if there are guns in the house where there is domestic abuse.”

Even as the National Rifle Association and other gun rights groups voice support for striking down the statute, some of those advocates concede Rahimi — whom the unanimous 5th Circuit panel acknowledged was “hardly a model citizen” — is a favorable defendant for the Biden administration. 

But those groups argue no sufficient historical analogue exists for disarming violent domestic abusers. Some also contend the law violates individuals’ due process rights.

“Unpopular cases necessitate the strictest adherence to principle,” Gun Owners of America, joined by a coalition of other gun rights groups, wrote to the justices.

Advocacy groups on the other side would largely prefer to overturn the Supreme Court’s recent line of Second Amendment decisions.

Acknowledging the justices have no appetite to do so, however, gun control advocates have turned to longing that the court will now define the limits of its recent expansion. 

They hope that Rahimi being the face of the newest legal battle will cause hesitation among some of the Supreme Court’s conservatives, particularly Chief Justice John Roberts and Justice Brett Kavanaugh.

“If that is truly what Bruen meant, then there is a serious problem with Bruen,” Janet Carter, senior director of issues and appeals at Everytown Law, said during a case briefing call last week. “Neither text, nor history nor tradition, let alone common sense, dictates that the government is forbidden to disarm people subject to protective orders.”

Both Letter and Carter filed friend-of-the-court briefs on behalf of their organizations backing the Biden administration. Their groups and others are also planning a rally outside the court Tuesday morning.

Case could impact other gun challenges

The Supreme Court’s decision may sway the outcome of a dizzying array of Second Amendment cases.

The National Association of Gun Rights urged the justices to use the case to send a signal to lower judges who “did not” get the message of Bruen.

“Once more from the top: the right to keep and bear arms protected by the Second Amendment is not a second-class right,” the group wrote.

At the Supreme Court, several other gun cases are already waiting in the wings, including a Biden administration appeal of a 5th Circuit decision finding unconstitutional a federal law criminalizing gun possession for unlawful drug users. 

The Justice Department is urging the Supreme Court to punt consideration of the issue until after deciding Rahimi’s case, arguing they “substantially overlap.”

Notably, Hunter Biden, the president’s son, is also charged under that provision. He pleaded not guilty, and his attorneys have previewed he may mount a constitutional challenge.

The impact of Rahimi’s case will depend on how broadly the justices write their opinion, legal experts and advocates say.

“The Supreme Court, in both the Heller and Bruen decisions, left open a very large number of questions about the Second Amendment and how it is to be applied,” Letter said.

Jacob Charles, a Pepperdine University law professor who researches the Second Amendment, estimated in a new paper that judges invalidated gun laws in more than two dozen decisions in the year following Bruen.

Splits have emerged over several lingering questions about Bruen’s text, history and tradition test. Those questions include which year qualifies as a historical tradition and what level of specificity must the government show when analogizing modern gun laws. 

Some judges have expressed confusion.

“We were not trained as historians. We practiced law, not history. And we do not have historians on staff. Yet the standard articulated in Bruen expects us ‘to play historian in the name of constitutional adjudication,’” U.S. District Judge Carlton Reeves opined in June.

Judge Stephen Higginson, who sits on the 5th Circuit, similarly wrote in August: “Courts, operating in good faith, are struggling at every stage of the Bruen inquiry.”