Since the 1990’s, people who have been convicted of domestic violence or who are the subject of a protective order are barred from possessing firearms. This has become one of the main ways that we help protect survivors of intimate violence and stalking from gun violence. These measures help keep dangerous weapons out of the hands of people whose behaviors have put people at risk of harm. Indeed, in an era characterized by the gradual loosening of state and local authority to regulate firearms and firearm possession, courts, victims, and attorneys have relied on this framework. Survivors can be assured that their assailants are barred from the legal possession of deadly weapons, and violent offenders can face substantial criminal penalties for violating these provisions.
The Supreme Court is currently considering a challenge to this status quo. Oral arguments on the subject were heard on Tuesday, November 7th. The case is United States v. Rahimi, and the challenger is a convicted felon subject to a protective order arising from his conviction for domestic and family violence against his then-girlfriend. He is currently incarcerated, and his federal public defender challenged the constitutionality of his conviction. After surprising many by finding a receptive audience before the Fifth Circuit Court of Appeals, many interpreted the Supreme Court as somewhat dubious about his argument this week.
This case turns on the relatively new principle the Supreme Court, first elaborated in the Court’s ruling in New York State Rifle & Pistol Association v. Bruen, in 2022. There, the Court reasoned that a regulation on the right to bear arms must have some historical analog or antecedent in the regulatory framework and legal tradition of the United States circa 1780 and would otherwise violate the Second Amendment. This verdict created a substantial amount of confusion among lower courts, which struggled to identify a clear holding they could rely on to determine broader legal questions concerning the regulation of firearms. This has left the state of firearm restrictions without clear limits.
Although many advocates for survivors of intimate violence remain understandably worried that six Supreme Court Justices decided to grant cert on this specific issue, the tenor of Tuesday’s oral argument is encouraging and suggests that these protective measures might remain in place. Breaking from the recent trend of Supreme Court decisions which drastically curtail the power of government to regulate firearm possession, the Justices seemed more skeptical towards Rahimi’s case. Justices Roberts and Kavanaugh both expressed concerns that finding for Rahimi would upend a defensible regulatory regime and potentially endanger a great many people.
Justice Thomas was characteristically silent through this oral argument.