The Supreme Court hears arguments Tuesday in a case that could invalidate the federal law barring guns for anyone who is the subject of a domestic violence court order. If the federal law falls, so would similar laws in most states, and other important gun laws.

The case is the next chapter in the high court's new Second Amendment doctrine.

How the case got to the court

Sixteen months ago, the conservative court majority broke sharply with the way gun laws had been handled by the courts in the past. In a landmark decision, the six-justice majority ruled that in order to be constitutional, a gun law has to be analogous to a law that existed at the nation's founding in the late 1700s.

Since then, Second Amendment advocates have brought all manner of challenges to state and federal gun laws across the country, plunging the lower courts into conflicting conclusions about how precise the analog has to be. Tuesday's case is the first to test of how far the conservative court wants to go, and how precise the analog has to be. At issue is the federal law that makes it a crime for anyone subject to a domestic violence court order to possess a gun.

The defendant in the case, Zackey Rahimi, is something of a poster child for why Congress passed the law in 1994. In 2019 he assaulted his girlfriend in a parking lot, and after realizing that a bystander saw the assault, he fired a gun at the witness, and threatened to shoot his girlfriend if she told anyone. Two months later, a Texas court granted her a protective order, suspended Rahimi's gun license, and warned him that possession of a gun while the order remained in effect is a federal felony.

Rahimi repeatedly violated the court order, threatened another woman with a gun and fired a gun in five different locations in a period of one month—incidents that ranged from shooting a gun repeatedly at another driver after a collision, to firing multiple shots in the air after a fast-food restaurant declined a friend's credit card. When police searched his residence, they found a pistol, a rifle, magazines, ammunition, and a copy of the protective order.

He pleaded guilty to charges of violating the federal gun law and was sentenced to six years in prison. But he continued to press his constitutional challenge, and ultimately the Fifth Circuit Court of Appeals ruled that the law is unconstitutional because there was nothing like it in the 1790s. The federal government appealed, contending that there is a long historical tradition in this country of disarming people who are dangerous.

The legal arguments

Former Deputy Solicitor General Michael Dreeben, who was in charge of the Justice Department's criminal appeals docket for 24 years, says there is a good reason there is no precise analog from the 1700s.

"At the Founding, domestic violence was not considered to be a serious problem that warranted legal intervention. Women were viewed more or less as property of their husbands," he says. "The second feature of changed dynamics is that firearms are now the weapon of choice in domestic violence conflicts in a way that was not true at the founding." Those realities, the government argues, justify a more "nuanced" analog to the 1700s.

"I think there's a certain whistling past the judicial graveyard, if you will," says Jerry Beard, a former assistant federal defender in Texas, who served in the office that is representing Rahimi.

"The government is throwing spaghetti at the wall hoping something sticks," he says, adding that "the government is basically saying, 'We don't like this test... we want something else.'"

"If they cannot point to an analog, they're in trouble, Beard observes. "The statute is probably unconstitutional and presumptively is."

Dreeben counters that the court has always adjusted its doctrine to fit modern times. There were no phones or tracking devices at the Founding, for example, but the court still outlawed wiretaps and GPS tracking devices without a warrant.

Dreeben calls the information available today about domestic violence and guns "shocking," noting that "in 2019 70 women were shot and killed by a domestic partner each month. Nearly a million women have been shot at," and that "domestic assaults that involve guns are 11 times more likely to cause death than assaults without guns."

He points out that women aren't the only victims in these cases. Domestic violence with a gun is a leading cause of death for children. More than half of all mass shootings are perpetrated by people with a record of domestic violence. And finally, he says, domestic violence calls result in the highest number of police fatalities, almost all of them involving guns.

But Clark Neilly, Senior Vice President of Legal Studies at the Cato Institute, replies that Zackey Rahimi had not been convicted of any crime when he was first stripped the the right to have a gun by a state court judge in Texas and then sentenced to prison for having guns.

"The biggest problem with this law is that it allows somebody to be dispossessed of their firearms on the basis of a state domestic violence order without any showing that they actually engage in domestic violence," Neilly says.

ACLU Legal Director David Cole, however, has a narrower view; he thinks this statute is constitutional as written because it requires that the protective order include a finding of dangerousness and in this case Rahimi was found to be a danger to his wife. But Cole points out a different flaw in the government's argument. "The notion that any right is limited to law abiding, responsible citizens seems to me really odd," he says. "You don't have to be a law abiding responsible person to have First Amendment rights, Fourth Amendment rights, Fifth Amendment rights."

Consequences of the court's action

Beard agrees, posing a rhetorical question: What about a college student who smokes a joint? Is he or she a law abiding, responsible citizen? he asks.

He contends that the government knows that if it loses this case, the next laws to fall could well be those that bar all convicted felons from having guns. "What about someone who commits a felony, even 25 years ago that did not implicate violence," Beard asks. "Have they now been dispossessed of their Second Amendment rights for the lives?"

Dreeben sees the dangers as far more imminent if the court strikes down the law banning guns for those covered by domestic violence protective orders.

He says that a decision invalidating the federal law "will rip a hole" in the National Instant Criminal Background Check System, which requires protective orders of the type that Rahimi had, to be entered into the system so they can serve as flags to deny the purchase of firearms.

According to statistics compiled by the FBI, nearly 13,000 gun sales each year are blocked because of a history of domestic violence.

More generally, Dreeben says, a decision against the federal law could cast doubt on an a network of prohibitions enacted by state and local governments that have been shown to be even more effective because of their greater breadth.

That's "a tad dramatic" replies Beard, whose former colleagues are on the other side in Tuesday's case. "I have more confidence in the court than perhaps the government does."

Tuesday's Supreme Court arguments should give some further hints of the the justices' thinking in the case. Two of the court's newer members, Brett Kavanaugh and Amy Coney Barrett, both wrote dissenting opinions when they served on lower courts, stressing the importance of the Second Amendment right to bear arms.

In 2019, Barrett dissented when the Seventh Circuit Court of Appeals upheld the law banning convicted felons from possessing guns. The basis of her dissent was that the felon who brought the case had been convicted of a non-violent crime. And Kavanaugh wrote a 52-page dissent in 2011 when the D.C. Circuit Court of Appeals upheld a ban on "assault weapons" and magazines for more than 10 rounds of bullets, plus broad registration requirements. Tellingly, at the time the two judges in the majority were conservatives, both appointed by Republican presidents.

My, how times have changed!

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