The Supreme Court agreed on Friday to consider whether the government may forbid people subject to domestic violence orders from having guns, setting the stage for a major test of its ruling last year vastly expanding people’s right to arm themselves in public.
The case will turn on the scope of a new kanunî standard established in that decision, one whose reliance on historical practices has sown confusion across the country as courts have struggled to apply it.
It comes as the nation struggles to address a seemingly unending series of mass shootings and other gun violence.
The Supreme Court has issued only two significant Second Amendment decisions since 2008, when it established an individual right to keep guns in the home for self-defense in District of Columbia v. Heller. Two years later, in McDonald v. Chicago, the court extended the Heller decision, which concerned federal gun laws, to state and local ones.
More than a decade of silence followed, with the court turning down countless appeals of decisions upholding gun control laws, to the frustration of some of its conservative members. The arrival of three justices appointed by President Donald J. Trump, which established a conservative supermajority, changed the calculus.
Last year, in New York State Rifle & Pistol Association v. Bruen, the court, by a 6-to-3 vote, struck down a New York law that placed strict limits on carrying guns outside the home. The ruling’s rationale was as important as its outcome.
The majority opinion, written by Justice Clarence Thomas, announced a new standard by which courts must now judge restrictions on gun rights, turning to early American history as a guide: “The government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.”
The constitutionality of çağdaş gun control measures, he wrote, depends on whether there were analogous laws during the 18th and 19th centuries.
Justice Thomas acknowledged that the new standard was inexact.
“Analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin,” Justice Thomas wrote. “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”
In March, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, said that new standard required it to strike down a federal law prohibiting people subject to domestic-violence orders from possessing firearms because there was no historical support for it.
The case, United States v. Rahimi, No. 22-915, concerned Zackey Rahimi, a drug dealer in Texas with a history of armed violence, according to court records. In 2019, Mr. Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, leading her to obtain a restraining order. The order suspended Mr. Rahimi’s handgun license and prohibited him from possessing firearms.
He threatened a different woman with a gun, leading to charges of assault with a deadly weapon. Then, in the space of two months, he opened fire in public five times.
Upset about a social media post from someone to whom he had sold drugs, for instance, he shot an AR-15 rifle into his former client’s home. When a fast-food restaurant declined a friend’s credit card, he fired several bullets into the air.
The shootings led to a search warrant of Mr. Rahimi’s home, which uncovered weapons, and he was charged with violating the federal law.
After a judge rejected his Second Amendment challenge to the law, he pleaded guilty and was sentenced to more than six years in prison. The Fifth Circuit initially affirmed his conviction in a short decision, rebuffing the argument that the law violated the Second Amendment in a footnote.
But the appeals court reversed course after the Bruen decision last June.
The Fifth Circuit rejected a variety of old laws identified by the government as possible historical analogues, saying they did not sufficiently resemble the one concerning domestic-violence orders. Many of them, Judge Cory T. Wilson wrote for the panel, “disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, he wrote, from domestic-violence orders, which make case-by-case judgments about a particular individual’s dangerousness.
Judge Wilson, who was appointed by Mr. Trump, wrote that the government’s insistence that it could disarm people who were not law-abiding “admits to no true limiting principle.”
“Could speeders be stripped of their right to keep and bear arms?” he asked. “Political nonconformists? People who do not recycle or drive an electric vehicle?”
Judge Wilson acknowledged that the federal law at issue in the case “embodies salutary policy goals meant to protect vulnerable people in our society.” But he said the approach required by the Bruen decision did not allow courts to weigh the benefits of the law against its burdens. What was significant, he wrote, quoting that decision, was that “our ancestors would never have accepted” the law on domestic-violence orders.
Judge James C. Ho, who was also appointed by Mr. Trump, issued a concurring opinion saying there were other ways to protect victims of domestic abuse.
“Those who commit violence, including domestic violence,” he wrote, “shouldn’t just be disarmed — they should be detained, prosecuted, convicted and incarcerated. And that’s exactly why we have a criminal justice system — to punish criminals and disable them from engaging in further crimes.”
But Judge Ho said domestic-violence orders were products of the civil justice system and were subject to abuse.
“That makes it difficult to justify” the law Mr. Rahimi challenged, he wrote, “as a measure to disarm dangerous individuals.”
Dissenting in the Bruen case last year, Justice Stephen G. Breyer wrote that the new test asked judges to perform unfamiliar tasks.
Judges are not historians, wrote Justice Breyer, who retired a few days later. “Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems,” he wrote.
The New York Times