Court watchers expect the Supreme Court to give more guidance on gun control laws and the Second Amendment after many courts struck down restrictions to allow drug users, felons and domestic violence offenders to possess firearms.
Various courts have issued more than 400 gun control rulings since the Supreme Court struck down a New York law last year that required people to show a need to carry a firearm, according to an analysis by the Giffords Law Center to Prevent Gun Violence.
In the majority opinion in New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas said a firearms law must be consistent with the history and traditions of gun ownership since the nation’s founding to comply with the Second Amendment.
The country’s murky history with gun owners has left some courts scrambling to interpret and apply the Bruen standard, court watchers say.
“Lower courts are visibly struggling with the court’s new historical tradition approach. That doesn’t bode well for the rule of law,” said Steven Schwinn, a law professor at the University of Illinois Chicago. “It would be nice to get some clarification from the court.”
“A lot of courts are looking for more guidance. Certainly, people on the left are screaming a lot,” said Curt Levey, president of the Committee for Justice. “I think very slowly, over the years, the court will probably add some guidance.”
Domestic violence
The Supreme Court announced Wednesday that it will hear oral arguments on Nov. 7 in United States v. Rahimi, its first post-Bruen case. The court will determine whether people under domestic violence restraining orders can possess firearms.
Zackey Rahimi launched the Second Amendment dispute. He received a domestic violence restraining order after an ex-girlfriend accused him of assault. He also was suspected of involvement in a series of shootings around Arlington, Texas. When officers swooped in with a search warrant, they found a rifle and a pistol in his home.
Federal prosecutors charged Mr. Rahimi with possessing a firearm while under a restraining order. He challenged the indictment.
The 5th U.S. Circuit Court of Appeals rejected Mr. Rahimi’s initial challenge but reversed its decision on a subsequent challenge after the Bruen ruling. The appellate court panel rejected the federal government’s argument that historical records showed that dangerous people were prohibited from possessing firearms.
The circuit judges said the situation would have been different had Mr. Rahimi been convicted of a violent crime. They said a civil restraining order doesn’t preclude Mr. Rahimi from the constitutional right to bear arms.
Gun rights supporters hailed the ruling as a victory.
Gun control advocates said it created a dangerous situation for lower courts trying to unravel the federal Gun Control Act. The law bars gun possession or purchase by felons, fugitives, illegal immigrants, the mentally ill, drug users, and those convicted of domestic violence or are subject to a court restraining order after stalking, harassing or threatening a partner.
The Supreme Court will likely rule by the end of June.
Andrew Willinger, executive director at the Duke Center for Firearms Law, noted that district courts have ruled on the domestic violence issue and have upheld the gun ownership restriction, which conflicts with the 5th Circuit decision.
“I don’t want to downplay the importance of the intersection of guns and domestic violence … but in terms of that specific provision of federal criminal law that is being challenged in the Rahimi case, it is just not being used very often,” Mr. Willinger said.
Mr. Levey predicts that the justices will reverse the 5th Circuit and rule that courts can disarm people subject to domestic violence restraining orders.
“I suspect that the court will uphold the regulation,” he said. “Wokeness almost requires it to be upheld.”
He said Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, who occupy the ideological middle of the court, may worry about allowing domestic violence offenders to handle guns.
“I don’t think they are going to want to be seen striking down a domestic violence law. The question is: Are they going to say anything broader?” Mr. Levey said.
Convicted felon
The 3rd U.S. Circuit Court of Appeals ruled in June that former felon Bryan Range can legally possess a firearm. Mr. Range pleaded guilty to making a false official statement on a Pennsylvania food stamp application in 1995 and was sentenced to three years of probation.
The felon-in-possession federal law, U18 U.S.C. § 922(g)(1), bans gun ownership for those convicted of a crime with more than one year of punishment.
The 3rd Circuit ruling applied only to Mr. Range, but it marked a major Second Amendment limit on the federal ban for felon gun ownership. Mr. Range was unable to buy a firearm before the court decision.
The 3rd Circuit’s en banc ruling noted that the government could not show that barring Mr. Range from owning a firearm was consistent with any restrictions dating back to the nation’s founding.
The ruling conflicts with another circuit court decision on gun rights and the felon-in-possession law.
A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld the felon-in-possession law against Edell Jackson, who challenged a ban on possessing a firearm after he served time in prison for selling a controlled substance in Minnesota.
The 8th Circuit reasoned that the Supreme Court ruling in District of Columbia v. Heller in 2008, which recognized the right to keep and bear arms, should not be taken to “cast doubt on longstanding prohibitions on the possession of firearms by felons.”
The Bruen ruling, the 8th Circuit said, reaffirmed that the Second Amendment right is “subject to certain reasonable, well-defined restrictions.”
Such circuit court divisions generally invite Supreme Court review, but the justices have not said whether they will hear a case on the felon-in-possession law.
Mr. Willinger said the high court could move to analyze Second Amendment rights on a case-by-case basis.
“It is entirely possible that what the Supreme Court says in the Rahimi case will shed some light on where it is going in terms of the felon possession ban,” he said.
Drug user
A federal court judge in Oklahoma ruled in February that an indictment against Jared Michael Harrison over possessing a firearm while under the influence and in possession of marijuana ran afoul of the Second Amendment.
A federal grand jury indicted Mr. Harrison in August 2022 on charges of violating federal law 18 U.S.C. § 922(g)(3), which prohibits users of unlawful substances from gun possession.
Mr. Harrison succeeded in challenging the indictment. U.S. District Judge Patrick Robert Wyrick, a Trump appointee, reasoned that there wasn’t a historical record for barring people like Mr. Harrison from Second Amendment rights.
Judge Wyrick noted that Mr. Harrison was suspected of involvement in a shooting in Texas but said he could have been jailed and kept from possessing a firearm in public if the state deemed him dangerous.
“None of this is to say that the government cannot play a role in protecting the public from dangerous persons possessing firearms. It can, and it should,” the judge wrote. “The Constitution, after all, permits pre-trial detention, and such detention would be a highly effective means of furthering the government’s interest in protecting the public from a gun-toting Harrison.”
Age restriction
In March, the 11th U.S. Circuit Court of Appeals upheld an age restriction challenge over a Florida law barring anyone younger than 21 from buying a gun. The law was enacted in 2018 after the Marjory Stoneman Douglas High School massacre in Parkland.
A three-judge panel reasoned that Reconstruction-era laws restricted 18- to 20-year-olds from buying pistols. That decision was later vacated, and the full 11th Circuit Court is expected to hear the case.
A federal judge in Texas earlier ruled the other way over a state law barring 18- to 20-year-olds from obtaining licenses to carry handguns. In August 2022, after the Bruen decision, the judge said that restriction ran afoul of the Second Amendment because it limited the right to self-defense outside the home.
“Based on the Second Amendment’s text, as informed by Founding Era history and tradition, the court concludes that the Second Amendment protects against this prohibition,” said Judge Mark Pittman, a Trump appointee.
Texas planned to appeal the decision but ultimately backed off.
Immigration
Whether the Second Amendment applies to illegal immigrants has been tested in the wake of Bruen.
In United States v. Sitladeen, a Canadian wanted on a murder charge cited the Second Amendment in challenging his arrest with more than 60 guns in Minnesota.
In April, the 8th U.S. Circuit Court of Appeals declined to accept the Canadian citizen’s challenge after determining his status as an illegal immigrant.
Like other precedents before Bruen, the court determined that he was not part of “the people” as protected in the text of the Second Amendment.
The University of Illinois’ Mr. Schwinn said the Bruen analysis hasn’t changed how most courts have handled Second Amendment cases involving noncitizens.
“Most cases seem to hold that unlawfully present noncitizens are not part of ‘the people’ for the purpose of the Second Amendment, and therefore enjoy no Second Amendment rights. But at least one circuit has held that at least some unlawfully present noncitizens do enjoy Second Amendment rights. The Supreme Court hasn’t ruled on this, though,” he said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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