Chemerinsky: Supreme Court once again will consider the scope of gun rights
Erwin Chemerinsky. Photo by Jim Block. Adjacent image from Shutterstock.
On Nov. 7, the Supreme Court will hear oral arguments in United States v. Rahimi. It is an enormously important case about the scope of Second Amendment rights and also about how the Roberts Court is approaching interpreting the Constitution.
From 1791, when the Second Amendment was written, until 2008, not once did the Supreme Court declare unconstitutional a federal, state, or local gun regulation. In the handful of cases about the Second Amendment, the court always said that it was about protecting a right to have firearms for militia service.
But in June 2008, in District of Columbia v. Heller, the court declared unconstitutional an ordinance that prevented owning or possessing a handgun. In a 5-4 decision, with the majority opinion written by Justice Antonin Scalia, the court held that the Second Amendment protects a right of an individual to have handguns in the home for the sake of security. The court did not prescribe a test or level of scrutiny to be used in evaluating gun regulations.
The court did not decide another case about the meaning of the Second Amendment for 14 years until New York State Rifle and Pistol Association v. Bruen in June 2022. The court, in a 6-3 ruling, declared unconstitutional a New York law that had been on the books for over a century that prohibited having a gun in public without a permit and that required a person to show cause, a safety need, for having such a permit.
Justice Clarence Thomas wrote the majority opinion and said that a gun regulation would be allowed only if it was of a type that was historically permitted. He wrote, “To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
In other words, unlike all other rights in the Constitution, the usual levels of scrutiny are not applied; it does not matter under this approach whether there is a compelling government interest and no other way to achieve it. The court said that a gun regulation is constitutionally permissible only if it was historically allowed. The court expressly rejected any balancing of the government’s interests in regulating guns with a claim of Second Amendment rights. Justice Thomas wrote “the Second Amendment is the very product of an interest balancing by the people and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.”
United States v. Rahimi
Zackey Rahimi physically abused his girlfriend while they were in a parking lot. When he realized that a bystander had seen this, Rahimi retrieved a gun and fired at the witness. The girlfriend ran away from Rahimi and he later called her and threatened to shoot her if she told anyone about the assault. Subsequently, a court in Texas, after a hearing, issued a restraining order against Rahimi for a two-year period. Among other things, the order prevented Rahimi from threatening, harassing, or approaching his former girlfriend or her family. The order also prohibited Rahimi from having a firearm and informed him that such possession would be a federal felony. A federal statute – 18 U.S.C. 922(g)(8) – prohibits the possession of firearms by a person subject to a restraining order in a domestic violence case.
Rahimi was later the suspect in a number of crimes where a firearm was used. The police obtained a search warrant and on searching Rahimi’s home found a number of guns and ammunition. He was indicted for violating the federal statute forbidding those covered by a protective order in a domestic violence case from having a gun.
Rahimi asked the federal district court to declare the federal law unconstitutional. After it ruled against him, Rahimi pled guilty and was sentenced to 73 months in prison followed by three years of supervised release.
On appeal, the United States Court of Appeals for the Fifth Circuit declared the federal statute unconstitutional. The Fifth Circuit explained that there were not such laws disarming domestic abusers in 1791 when the Second Amendment was adopted and that makes this law unconstitutional under the Supreme Court’s approach prescribed in Bruen. The Fifth Circuit stated there is “no tradition— from 1791 or 1866—of prohibiting gun possession … for people … subject to civil protective orders.”
Both the United States and Rahimi focus on historical arguments in their briefs to the Supreme Court. The United States contends that “American legislatures have long disarmed individuals whom they have found to be dangerous, irresponsible, or otherwise unfit to possess arms” and that “Section 922(g)(8) fits within that history and tradition because it disarms persons who are not law-abiding, responsible citizens.”
Rahimi, by contrast, stresses, as did the Fifth Circuit the absence of laws in 1791 that prohibited possession of firearms by those under restraining orders in domestic violence cases. Rahimi says that “[f]ollowing the process laid out by Bruen, the outcome here is straightforward.’ Section 922(g)(8) severely punishes conduct protected by the plain text of the Second Amendment.” He says that the governments approach gives “Congress carte blanche to disarm and punish the exercise of a fundamental, enumerated right.”
The case is likely to be enormously important in clarifying how the court applies its test from Bruen. At what level of abstraction is the historical analysis to be done? Rahimi says that the focus is on whether in 1791 there were laws preventing possession of guns by those under restraining orders in domestic violence cases. But the United States says that is the wrong question; rather the inquiry should be whether there were restrictions on dangerous people having guns.
Also, there is the question of whether the court will adhere to what it said in Bruen and pay no attention to the government’s interest in keeping people under restraining orders from having guns. Toward the end of its brief, the government argues, “Congress may disarm persons subject to protective orders even if the Founders did not.” In 1791, there was little protection against domestic violence and restraining orders were non-existent. Should this determine the meaning of the Second Amendment in 2023?
The court’s decision will matter greatly as to the constitutionality of countless other gun regulations. Are federal and state laws prohibiting convicted felons from having firearms constitutional? Can the federal government and state governments prohibit “ghost guns,” guns without serial numbers? Can the government ban types of weapons – AR 15s and large capacity ammunition magazines – that did not exist in 1791?
Beyond the Second Amendment, there is the question of whether Bruen’s strictly originalist approach, rejecting any consideration of the government’s interest, will spread to other areas of constitutional law. It is a dramatic departure from how the court has approached rights and equal protection at least since the late 1930s.
Ultimately, United States v. Rahimi will provide a crucial sense of how far the court will go in protecting gun rights and how much it will adhere to a purely originalist approach to the Second Amendment and perhaps the Constitution.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.