U.S. solicitor defends gun bans for dangerous people; courts dealing with Bruen ruling want clarity

The Biden administration asked the Supreme Court on Tuesday to preserve gun control laws that deny firearms to people deemed dangerous even if they have not been convicted of a felony, saying intimidation has long been accepted as a valid reason to restrict Second Amendment gun rights.

In a closely watched case testing new limits of state gun ownership restrictions, Solicitor General Elizabeth Prelogar said the situation has become messy after recent Supreme Court rulings. She pleaded with the justices to deliver a firm statement clarifying that legislatures do have the power to block certain people from obtaining firearms.

“The constitutional principle is clear: You can disarm dangerous persons,” Ms. Prelogar said.

The case before the justices involved Zackey Rahimi. Prosecutors said he had a history of reckless shootings but no convictions on his record. After a tense encounter with Rahimi, an ex-girlfriend obtained a protective order from the state of Texas. Under federal law, that meant he was barred from possessing a gun.

Afterward, Rahimi was involved in five shootings and was convicted of illegal gun possession.

A federal appeals court upheld the conviction initially but reversed itself after the Supreme Court delivered its landmark ruling in the Bruen case in 2022. Bruen reaffirmed Americans’ fundamental right to own a gun and forbade any restrictions that clashed with what those in the nation’s earliest days would have deemed acceptable.

Bruen has also prompted other courts to question laws prohibiting drug users or even felons from possessing guns.

Confusion after a decision

Several justices decried the “confusion” in the year and a half since the ruling.

“I am just trying to understand how the Bruen test works,” said Justice Ketanji Brown Jackson, who joined the court just after the Bruen decision was handed down.

J. Matthew Wright, the public defender who argued on behalf of Rahimi, didn’t help matters Tuesday. At one point, he seemed to argue that Congress had no historical precedent to fully disarm citizens, but he stopped short of saying a conviction was required to take away Rahimi’s guns.

Justice Elena Kagan said Mr. Wright’s position would undermine what most people consider reasonable government gun control.

“It 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’s so obvious that people who have guns pose a great danger to others and you don’t give guns to people who have the kind of history of domestic violence that your client has, or to the mentally ill,” she said.

Mr. Prelogar said some lower courts are adhering to Bruen with rulings that gun prohibitions shouldn’t apply to armed career criminals, drug traffickers and those who have obliterated the serial numbers from their guns.

She tried to give an off-ramp from Bruen. She told the justices that they should make clear that courts can look to general principles rather than finding an exact match in the historical record dating back to the 18th century. She said the test should be whether someone “presents an unusual danger beyond the ordinary citizen.”

Ms. Prelogar said the nation’s founding years offer plenty of examples, such as prohibitions on gun possession by the intoxicated, the mentally ill and those who remained loyal to Britain during the Revolutionary War.

“Legislatures are best positioned to make these kinds of judgments about dangerousness,” she said.

Complicating the arguments were the particulars of the case. Prosecutors described Rahimi as a violent drug dealer with a string of unhinged shootings. According to the record, Rahimi shot at the home of one man who “started talking trash” online, shot at another man after a traffic collision, fired a gun in a neighborhood with children present, and shot at another driver in a road rage incident.

Prosecutors said Rahimi used his gun to threaten his ex-girlfriend and later another woman.

Chief Justice John G. Roberts Jr. said there was no doubt Rahimi qualified as “a dangerous person.” He defined the term for Rahimi’s attorney at one point as “someone who’s shooting, you know, at people, that’s a start.”

Despite the slew of allegations lodged against him, Rahimi did not have any convictions when he was placed under a protective order. The case for denying him the right to buy a gun turned on a civil proceeding.

Recent laws under fire

The domestic violence prohibition has been on the books since 1994, when Congress enacted a law banning firearms for anyone subject to a court-issued protective order, in addition to convicted felons, dishonorably discharged veterans, illegal immigrants, unlawful drug users, fugitives and those found to be mentally infirm.

Mr. Wright said denying guns is a long-held practice for felons but not for other categories of people covered by more recent laws.

He said the prohibition from possessing a firearm at home goes beyond the Founding Fathers’ intentions.

“The behavior that’s protected is the keeping of arms,” Mr. Wright said. “This is someone who’s keeping a firearm in his own home.”

He said civil court proceedings for protection orders are often “one-sided.” Persuading a judge to issue a protective order, he said, requires a lower standard than criminal courts’ beyond a reasonable doubt.

“My client was unrepresented,” he told the justices. “They made a one-sided proceeding that is short, a complete proxy for a total denial of a fundamental and individual constitutional right.”

Ms. Prelogar said domestic violence cases are particularly tricky when guns are involved.

“I was struck by the data showing that domestic violence calls are the most dangerous type of call for a police officer to respond to in this country,” she said. “Guns and domestic abuse are a deadly combination.”

The Bruen decision, which struck down long-standing New York state restrictions, has spawned hundreds of lower court decisions analyzing the 2022 ruling. Most challenges to gun control laws have failed, but court watchers have seen enough successful challenges to wonder whether the justices need to be more precise.

Justice Jackson said Bruen may present a bigger problem.

She said those in the early days of the United States didn’t take domestic violence as seriously as it is considered today, so it doesn’t make sense to look for an analogous prohibition on gun rights at the time. She also pointed out that, because of the system in place at the time, slaves and American Indians were automatically excluded from gun rights.

“I’m a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts,” she said. “Isn’t that a flaw with respect to the test?”