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Supreme Court Showdown Over Gun Rights

This case will likely shape the future of the Second Amendment.

Zackey Rahimi was convicted of the federal crime of possessing a firearm while being subject to a protection-from-abuse order. The Supreme Court hears his case Tuesday, Nov. 7, the first significant one on gun rights since the landmark New York State Rifle & Pistol Association v. Bruen. The Court’s ruling here may profoundly influence all ongoing Second Amendment lawsuits.

The new case is United States v. Rahimi, arriving at the Supreme Court from the Fifth Circuit Court of Appeals. Rahimi is no sympathetic plaintiff. He was a drug dealer who beat his girlfriend and was involved in multiple shootings. A Texas state court granted the girlfriend a restraining order, which included terms that Rahimi not possess firearms. He violated the order when police found guns in his home while executing a search warrant for other crimes. That made him eligible for prosecution under a federal law prohibiting the possession of firearms by subjects of domestic violence restraining orders.

Yes, even villains have rights. When Rahimi was convicted, he was subject to a civil court order. Is that a sufficient basis for removal of what the Supreme Court has ruled is a fundamental right?

Paper Tiger or Protective Right?

GettyImages-1236038464 (1) Justice Clarence Thomas

Justice Clarence Thomas (Photo by Drew Angerer/Getty Images)

The Supreme Court issued its ruling on Bruen in June 2022. That 6-3 decision held that the right to keep and bear arms includes a broad right to have guns, including outside one’s home. Justice Clarence Thomas wrote the Court’s opinion, the full implications of which have yet to be decided. 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.

Bruen has been seen to prohibit laws impinging on Second Amendment rights if no analog to them existed at the time of the founding. Gun rights proponents celebrated the ruling for finally putting teeth back into the Second Amendment. The Bruen decision caused the Fifth Circuit to reverse itself on Rahimi’s indictment, finding the federal law he was convicted of violated his Second Amendment rights. Then, the Biden administration successfully sought this appeal to the Supreme Court.

Good for Me, Good for Thee

The federal law in question, 18 U.S.C. § 922(g)(8), says people can’t have guns if they are subject to a domestic violence civil court order preventing them from using violence, harassing, stalking, or threatening an intimate partner or partner’s child. The order has to include either a finding of a “credible threat” to physical safety or explicitly prohibit the use of violence. And it requires a court to issue any order only after giving the subject notice and a chance to appear. If those conditions are present, then the federal ban is triggered.

GettyImages-1696136442 SCOTUS - gun rights

(Photo by Celal Gunes/Anadolu Agency via Getty Images)

The Court’s composition has been unchanged since the Bruen ruling. A deluge of cases has been brought since then, and this is the first to make it to the Supreme Court. The judicial system is stuffed with cases challenging all manner of individual gun laws, such as here in Rahimi, and entire swaths of legislation enacted in Bruen’s wake, often by blue states struggling to somehow lawfully prevent people from keeping arms at hand. This case was brought not by the NRA or another pro-gun group but by Rahimi’s public defender. Interest is intense because this ruling has a strong likelihood of controlling much ongoing litigation.

Will the Court draw a bright-line rule suggested by its decision in Bruen? Will the lanes for permissible imposition on the right to keep and bear arms be narrow or broad? Oral arguments present the best preview of what Justices may think about their precedent in the area.

Read More From Scott D. Cosenza, Esq.

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