{"id":8644,"date":"2023-11-08T11:45:06","date_gmt":"2023-11-08T11:45:06","guid":{"rendered":"https:\/\/lendingsensibly.com\/politics\/conservative-supreme-court-majority-must-figure-out-if-it-can-limit-gun-rights-of-domestic-abusers\/"},"modified":"2023-11-08T11:45:07","modified_gmt":"2023-11-08T11:45:07","slug":"conservative-supreme-court-majority-must-figure-out-if-it-can-limit-gun-rights-of-domestic-abusers","status":"publish","type":"post","link":"https:\/\/lendingsensibly.com\/?p=8644","title":{"rendered":"Conservative Supreme Court majority must figure out if it can limit gun rights of domestic abusers"},"content":{"rendered":"
\n

\n When the Supreme Court significantly enhanced\u00a0Second Amendment rights last year, the conservative majority said gun regulations could be upheld only if they had a historical analogue tracing to America\u2019s founding in the late 18th\u00a0century.\n <\/p>\n

\n But what of a law that strips gun rights from people subject to domestic violence protective orders \u2013 when domestic violence wasn\u2019t recognized as a serious problem back then?\u00a0Not until the\u00a0late\u00a020th\u00a0century\u00a0did states widely\u00a0adopt laws to protect victims of domestic violence and to hold abusers accountable.\n <\/p>\n

\n Faced with that reality during oral arguments on Tuesday, some of the justices appeared willing to try\u00a0to clarify\u00a0their 2022 milestone ruling\u00a0that has confounded lower court judges\u00a0and led to a raft of decisions invalidating firearms laws.\n <\/p>\n

\n The problem of domestic abuse was in the air as much as any constitutional theory during the 90-minute session. And the nature of the case may guarantee not only that the federal government prevails but also wins some flexibility for judges searching for historical analogues in Second Amendment disputes.\n <\/p>\n

\n To be sure, the conservative majority did not appear ready to abandon its core emphasis on the history and tradition that led to the Second Amendment in 1791. Rather, some of the justices who joined last year\u2019s decision seemed to accept the federal government\u2019s arguments that lower court judges were at odds over how to follow it, with many too rigidly interpreting the court\u2019s mandate regarding the amendment\u2019s original meaning.\n <\/p>\n

\n The question now, however, is whether a majority can provide sharper guidance on this second round.\n <\/p>\n

\n One of the most quoted \u2013 but open-ended \u2013 lines from Justice Clarence Thomas\u2019 opinion last year in New York State Rifle & Pistol Association v. Bruen was that\u00a0\u201canalogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.\u201d\n <\/p>\n

\n Earlier this year,\u00a0the conservative 5th\u00a0US Circuit Court of Appeals, relying on the Bruen reasoning,\u00a0found no\u00a0valid\u00a0analogue for the\u00a0gun prohibition on people subject to domestic-violence orders, declaring it \u201can outlier that our ancestors would never have accepted.\u201d\n <\/p>\n

\n Appealing that ruling,\u00a0Solicitor General Elizabeth Prelogar argued on Tuesday that\u00a0\u201cGuns and domestic abuse are a deadly combination,\u201d adding that\u00a0\u201cas this court has said, all too often, the only difference between a battered woman and a dead woman is the presence of a gun.\u201d\n <\/p>\n

\n Prelogar argued that the valid analogue in this case would be 18th\u00a0century practices that kept guns away from people considered dangerous or \u201cnot responsible \u2026 \u00a0like the mentally ill or minors.\u201d She said 48 states have laws like the federal government that \u201ctemporarily disarm\u201d people subject to domestic violence restraining orders.\n <\/p>\n

\n She\u00a0said\u00a0the court\u00a0need not \u201cbreak new ground here,\u201d but rather make clear the wide variety of historical sources and evidence judges can use when determining the scope of Second Amendment firearms rights.\n <\/p>\n

\n \u201cWe think that you should make clear the courts should come up a level of generality and not nit-pick the historical analogues that we\u2019re offering to that degree,\u201d she said.\n <\/p>\n

\n At least three of the justices from the majority in the 2022 decision appeared\u00a0open to\u00a0Prelogar\u2019s analogue of \u201cdangerousness.\u201d\n <\/p>\n

\n \u201cSo you\u2019ve invoked the consensus among the states, the tradition of dangerousness, and I don\u2019t think you\u2019d get a lot of push-back because this is violence after all, domestic violence,\u201d said Justice Amy Coney Barrett said, as she raised concerns about situations that would fall outside that \u201cheartland.\u201d\n <\/p>\n

\n Justices Neil Gorsuch and Brett Kavanaugh also seemed inclined toward Prelogar\u2019s arguments.\n <\/p>\n

\n Chief Justice John Roberts, who was also part of the Bruen majority, challenged her reference to laws covering people who are \u201cnot responsible,\u201d saying that could be \u201cextremely broad.\u201d But Roberts also sharply questioned the lawyer defending Zackey Rahimi in a way that again put a spotlight on the alleged domestic violence.\n <\/p>\n

\n \u201cYou don\u2019t have any doubt that your client\u2019s a dangerous person, do\u00a0you?\u201d Roberts asked lawyer J. Matthew Wright.\n <\/p>\n

\n \u201cYour Honor, I would want\u00a0to know what \u2018dangerous person\u2019 means at the moment,\u201d Wright responded.\n <\/p>\n

\n \u201cWell, it means someone who\u2019s shooting, you know, at people,\u201d\u00a0Roberts said. \u201cThat\u2019s a good start.\u201d\n <\/p>\n

\n
\n <\/source><\/source><\/source><\/source><\/picture>\n <\/div>\n<\/div>\n

\n A Texas state court, after hearing evidence that Rahimi assaulted his girlfriend in an Arlington, Texas, parking lot and fired his gun at a witness, prohibited him from approaching or threatening the girlfriend and her family.\n <\/p>\n

\n When Rahimi later became a suspect in a series of shootings, and weapons were found at his home, he was charged with violating the 1994 federal law that bars a person subject to a protective order from possessing a firearm.\n <\/p>\n

\n The pending dispute, United States v. Rahimi, drew dozens of friend of the court briefs from organizations seeking clarity on the Bruen case, including many from advocates trying to prevent domestic violence. Those groups argued that\u00a0the Bruen rationale lets judges take a nuanced approach to contemporary measures\u00a0\u2013\u00a0even if there\u2019s no exact historical analogue from the founding era.\n <\/p>\n

\n Today, advocates for the prevention of domestic violence say,\u00a0on average, 70 women are shot and killed each month in the US by their intimate partner.\n <\/p>\n

\n Prelogar highlighted such statistics, as she told the justices,\u00a0\u201cA woman who lives in a house with a domestic abuser is five times more likely to be murdered if he has access to a gun. And it\u2019s not just the harms in the home. It extends to the public and to police officers as well.\u201d\n <\/p>\n

\n Justice Samuel Alito, a consistent critic of the current administration\u2019s positions, voiced greater concern for people who may be subject to restraining orders.\n <\/p>\n

\n He questioned whether someone might face an order without \u201cany finding of dangerousness\u201d and then be barred from possessing a gun.\n <\/p>\n

\n \u201cNow suppose someone is later prosecuted for violating that provision,\u201d he asked Prelogar, \u201cwould it be a defense for that person to say that the state law in question did not require such a finding and, in fact, there was no such finding in my case?\u201d\n <\/p>\n

\n Prelogar brushed back the scenario, essentially saying it would not interfere with the federal prosecution.\n <\/p>\n

\n \u201cWe are told in some of the amicus briefs,\u201d Alito later said, \u201cthat there are situations in which the family court judge who has to act quickly and may not have any investigative resources faces a \u2026 he said\/she said situation, and the judge just says: \u2018Well, I\u2019m going to issue an order like this against both of the parties.\u2019 Do you agree that that occurs?\u201d\n <\/p>\n

\n \u201cNo,\u201d Prelogar responded. \u201cI think that that is largely a mischaracterization of what is happening in the state courts day in and day out.\u201d\n <\/p>\n

\n Wright, representing Rahimi, seemed aware of the difficulty of his\u00a0case and the cold reception from most of the justices,\u00a0especially to the\u00a0claim in his brief\u00a0that,\u00a0\u201cThe government has yet to find even a single American jurisdiction that adopted a similar ban while the founding generation walked the earth.\u201d\n <\/p>\n

\n \u201cSo is that what we should be looking for?\u201d asked Justice Elena Kagan, who dissented in the Bruen case. \u201cAnd if we don\u2019t find that similar ban, we say that the government has no right to do anything?\u201d\n <\/p>\n

\n \u201cI think that\u2019s largely what Bruen says,\u201d Wright answered, but then added, \u201cI don\u2019t think it has to be so narrow.\u201d\n <\/p>\n

\n He further equivocated\u00a0when Kagan asked if Congress could \u201cdisarm people who are mentally ill, who have been committed to mental institutions.\u201d\n <\/p>\n

\n \u201cI\u2019ll tell you the honest truth, Mr. Wright,\u201d Kagan\u00a0said. \u201cI feel like you\u2019re running away from your argument, because the implications\u00a0of your argument are just so untenable that you have to say,\u00a0\u2018No, that\u2019s not really my argument.\u2019\u201d\n <\/p>\n

\n As liberal Kagan continued, she addressed Wright. But she might have been subtly speaking to her colleagues who signed the Bruen decision.\n <\/p>\n

\n \u201cIt just seems to me that your argument applies to a wide variety of disarming actions, bans, what have you, that we take for granted now because it\u2019s obvious that people who have guns pose a great danger to others and you don\u2019t give guns to people who have the kind of history of domestic violence that your client has or to the mentally ill or what have you. \u2026 You seem to be running away from it because you can\u2019t stand what the consequences of it are.\u201d\n <\/p>\n<\/p><\/div>\n

Read the full article here<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

When the Supreme Court significantly enhanced\u00a0Second Amendment rights last year, the conservative majority said gun regulations could be upheld only if they had a historical analogue tracing to America\u2019s founding in the late 18th\u00a0century. But what of a law that strips gun rights from people subject to domestic violence protective orders \u2013 when domestic violence wasn\u2019t recognized as a serious problem back then?\u00a0Not until the\u00a0late\u00a020th\u00a0century\u00a0did states widely\u00a0adopt laws to protect victims of domestic violence and to hold abusers accountable. Faced with that reality during oral arguments on Tuesday, some of the justices appeared willing to try\u00a0to clarify\u00a0their 2022 milestone ruling\u00a0that<\/p>\n","protected":false},"author":1,"featured_media":8645,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[43],"tags":[],"class_list":["post-8644","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics"],"yoast_head":"\nConservative Supreme Court majority must figure out if it can limit gun rights of domestic abusers | LendingSensibly<\/title>\n<meta name=\"description\" content=\"When the Supreme Court significantly enhanced\u00a0Second Amendment rights last year, the conservative majority said gun regulations could be upheld only if\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" 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