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Supreme Court hears major test of 2nd Amendment gun rights


The Supreme Court on Tuesday confronts a major test of the 2nd Amendment and its protection for gun rights, including whether they extend even for people who are subject to a domestic violence restraining order.

At issue is the broader question of whether modern gun control laws may deny firearms to potentially dangerous people, including felons and drug addicts.

The court’s conservatives strongly support the 2nd Amendment, and last year Justice Clarence Thomas wrote an opinion for a 6-3 majority that threatens many of the nation’s gun laws enacted since the 1960s.

Thomas said the government may not deny an individual’s right to bear arms unless it can “affirmatively prove” the restriction is “consistent with this nation’s historical tradition.”

Few gun laws can meet that test because there were few legal restrictions on guns in early American history.

Relying on Thomas’ opinion, the 5th Circuit Court of Appeals in New Orleans struck down the 1994 federal law that takes away the firearms of persons who have been judged to pose a “credible threat” to an intimate partner or their children.

“Doubtless,” the appellate judges said, the law was well-intended and “meant to protect vulnerable people in our society,” but that is not sufficient.

They ruled for Zackey Rahimi, a Texas man who had grabbed an ex-girlfriend and tried to force her into his car. She escaped and sought protection from the courts after he threatened to shoot her. He was later involved in five shooting incidents after a Texas state judge had put him under a restraining order that required him to give up his guns.

When police went to arrest him, they found two guns in his home, and he was charged with violating the court order.

But the 5th Circuit overturned his conviction and struck down the law as unconstitutional. “While hardly a model citizen, [Rahimi] is nonetheless among the people entitled to the 2nd Amendment’s guarantees,” wrote 5th Circuit Judge Cory T. Wilson.

On Tuesday, the court hears the Biden administration’s defense of the law in the case of U.S. vs. Rahimi.

The oral arguments may give hints as to whether the court’s conservatives remain united behind Thomas’ history and tradition approach to the 2nd Amendment.

In the past, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh said they believe the 2nd Amendment permits “a variety of gun regulations.” And Justice Amy Coney Barrett said dangerous people may be denied guns.

In her appeal, U.S. Solicitor Gen. Elizabeth Prelogar wrote “the 2nd Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.”

She noted the court’s conservatives had repeatedly described the Constitution as protecting the “right of an ordinary law abiding citizen” to have a gun for self- defense. However, “from the earliest days of the republic to modern times, legislatures have disarmed individuals who could not be trusted with firearms,” she said.

States enforce these restraining orders, she said, and at least 48 states authorize taking away guns from people who are judged to pose a danger to a domestic partner. However, if the high court ruled the federal law violates the 2nd Amendment, its decision would likely void the state laws as well.

Prelogar said the need for the law was obvious. “Firearms and domestic strife are a potentially deadly combination,” she wrote, quoting a 2009 opinion by Justice Ruth Bader Ginsburg. Studies have shown the “presence of a gun in a household with a domestic abuser increases the risk of homicide five-fold,” Prelogar wrote.

Arguing for Rahimi is J. Matthew Wright, a federal public defender from Amarillo, Texas. In his legal brief, he said Thomas’ opinion “makes this an easy case …. The founders never intended to grant Congress the power to say who could keep arms.”

At stake in the outcome of the case are some California gun laws.

In 1999, California was among the first states to forbid not just the purchase of a new gun, but also the possession of any firearms by a person under a temporary restraining order, according to the bipartisan California Legislative Women’s Caucus.

In response to the 2014 mass shooting in Isla Vista that left six dead, California was “the first in the United States to allow immediate family members of a person threatening violence to petition for the [restraining] order,” the group added in a friend-of-the court brief.

It objected to the court’s focus on “originalism” and early American history to decide the fate of the nation’s modern gun laws.

“The fact that women were not able to legislate, let alone vote, when this country was founded must not shackle current women legislators from enacting reasonable, limited and effective laws to address the scourges of domestic violence and mass shootings,” the group said.



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