On Tuesday, Nov. 7, the scope of gun rights was once again argued at the US Supreme Court. This time, however, the matter was not whether the right to keep and bear arms exists as a constitutional staple, but rather what that right looks like. In the wake of 2022’s landmark New York State Rifle & Pistol Association v. Bruen decision, which declared people’s right to arms outside the home is guaranteed by the Second Amendment, the question remains how to apply the new precedent. As Liberty Nation reported, the full implications have yet to be resolved: “When landmark rulings are overturned and new ones enacted, it takes a while for the law to shake out. Lower courts react, and the Supreme Court clarifies if required. That’s where Second Amendment law currently lies.”
The case at hand now is United States v. Rahimi, a lawsuit that appears destined to shape gun law moving forward from Bruen. The Court sought to determine whether an individual under a domestic violence restraining order should be prohibited from possessing firearms. Liberty Nation’s Legal Affairs Editor Scott D. Cosenza was in the Court for the arguments.
Mark Angelides: Scott, you attended the arguments in person. What was your overall impression?
Scott D. Cosenza: I hadn’t been to the Court building since before the COVID-19 pandemic, which closed it to the public. It was disappointing how locked down the facility still is these days. It may be the people’s court, but they can hardly get in the building.
MA: Explain this particular case to me, please.
SDC: May the federal government criminalize firearm possession by those with civil domestic violence protection orders against them? That’s the question the Justices will answer. The implications are exactly where they will draw the lines of interpretation after Bruen. The possible range is a watered-down right that will be stomped on by willing jurisdictions, to a right to keep and bear arms dream that would overturn many blue-state gun laws.
MA: On the Uprising podcast and Liberty Nation Radio, you’ve made the point that this case is very much a lens through which the country is looking to see how to apply the landmark Bruen ruling. Based on the Justices’ questions, does that analysis still hold true?
SDC: Yes! If anything was abundantly clear at arguments, it was the need for clarification from the Court on what Bruen means. Many commentators and “friends of the court” who filed briefs in the case consider it a central question. We should expect the opinion of the Court to address it.
MA: What arguments were advanced by Solicitor General Elizabeth Prelogar, and how effective was she?
SDC: General Prelogar argued that the civil protection order should function like a judicial finding of “unfit for possession of firearms” due to the person in question being too dangerous. She said that, historically, states have prohibited those who pose an unacceptable danger to others, including the mentally ill, from keeping guns, and the same can be said for subjects of protective orders. She was not asking for a departure from Bruen, but an inclusive reading that allows for treating a protection order like a felony conviction, for instance.
Prelogar is a superb advocate who lived up to her reputation.
MA: Did she persuade you?
SDC: No, Mark, I have practiced law in abuse court, often seeking the very type of order Mr. Rahimi was subject to. The subjects are routinely ignorant of the consequences, often have no lawyer, and, unlike in criminal proceedings, do not start with the presumption of innocence. The criminal law system is replete with deficiencies, but the imposition of the higher evidence standard coupled with the right to representation makes the distinction determinative. Allowing the removal of fundamental rights under these conditions sets the bar far too low.
MA: And what was the most persuasive argument made by Rahimi’s team?
SDC: Rahimi’s best argument – and the one that got him to the Court – is that Bruen requires a cancelation of the law. It amounts to – “Please explain to everyone that your earlier decision includes laws like this.”
MA: I think many folks who want to strengthen the Second Amendment hope the court will issue a bright-line ruling – whether or not that favors the defendant. What are the ramifications of a robust pro-gun ruling, and what if it is of weaker sauce?
SDC: The Court’s reasoning for the decision is far more critical than the outcome of this indictment – for those of us who are not Mr. Rahimi, at least. Will they announce support for the notion that current gun control laws must have some historical analog at the time of the founding? If so, there will need to be a wholesale clearance of infringing legislation in many, if not most, states, and federally, too. The obverse is a ruling dialing back Bruen, allowing for all but the most restrictive anti-gun regulations, which were present in that case, but likely not in most others. Either one could come with a win or loss at the high court for the Department of Justice’s appeal against Rahimi.