Takeaways from the Supreme Court’s decision upholding the domestic violence gun ban

The Supreme Court handed down its most significant gun control ruling in two years on Friday, upholding a federal law that bars people who are the subject of domestic violence restraining orders from owning weapons.

With conservatives and liberals joining the 8-1 majority, the decision was a major win for gun safety groups and victims of domestic violence. It limited a controversial standard the high court’s conservatives had set down in 2022 that required gun prohibitions to have a connection to history to survive constitutional scrutiny.

But the majority opinion from Chief Justice John Roberts also left unanswered key questions about when the government may disarm non-violent criminals.

The case centered on a 1994 law that bars people who are the subject of domestic violence restraining orders from possessing guns. A Texas man, Zackey Rahimi, was convicted for violating that law following a series of shootings.

Here’s a look at some key takeaways from the decision.

Looking to history with guns

Two years ago, in New York State Rifle & Pistol Association v. Bruen, the Supreme Court said that to survive a challenge, gun laws must have some connection to the nation’s history and tradition. That sent lower courts scurrying into historical analyses to figure out if modern gun laws had some connection to the 18th Century.

But Friday, the majority said that lower courts don’t have to identify exact replicas of a historic law in order to uphold modern gun restrictions. It’s enough to be in the ballpark.

“When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote.

The law at issue in the case “is by no means identical to these founding era regimes, but it does not need to be. Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition” of historic laws.

Conservatives tinkering with test

While the decision was 8-1, the fact that there were five concurrences – three by conservative Donald Trump-appointed justices who had previously signed on to the Bruen opinion – shows that the court’s conservative wing is still tinkering with the test that was laid out in two years ago.

Roberts’ opinion said that lower courts were misunderstanding what the majority had said in that ruling. But Justice Ketanji Brown Jackson, a member of the court’s liberal wing, suggested it was the high court’s fault for not providing clarity for lower courts to follow.

Justices Neil Gorsuch and Brett Kavanaugh, both of whom were nominated by Trump, were defensive of Bruen, with each emphasizing that a historical approach is preferable to what they described as a “policy”-based approach that lower courts had been taking to gun laws in the past. Prior to Bruen, courts often engaged in a test that balanced a government’s public safety goals against the claimed infringement on the Second Amendment right.

Kavanaugh spent several pages laying out how courts should weigh historical examples of gun laws from the pre-founding era to ones that were passed after the Constitution was ratified, while asserting that the “first stop” should be looking at the Supreme Court’s precedents.

Justice Amy Coney Barrett, a conservative who has been raising concerns about the Supreme Court’s approach on history in recent cases, penned a brief concurrence criticizing how some lower courts were looking for near-identical historical gun laws when examining modern regulations.

“Imposing a test that demands overly specific analogues has serious problems,” Barrett wrote. “It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’”

Thomas’ lone dissent

As the court’s majority sought to rein in some of the confusion created by Bruen, Justice Clarence Thomas, the author of that opinion, was left by himself to deliver a forceful defense of the court’s ruling in 2022.

The history and tradition test Thomas put forth in that opinion paved the way for Rahimi’s victory at a lower court while also perplexing some jurists who saw it as an unworkable framework for examining the nation’s gun laws. The conservative 5th US Circuit Court of Appeals concluded that Bruen required a similar law in the nation’s history and that, without it, the prohibition must fall.

But on Friday, Thomas said the “court’s directive was clear” in Bruen: Gun laws need to be “consistent with the nation’s historical tradition of firearm regulation” to withstand legal scrutiny.

The law Rahimi’s case, he wrote, would fall under that framework. Thomas said that the government had failed to point to “laws before, during, and after our nation’s founding” that were similar to the one the court upheld Friday.

Rahimi, Thomas said, “is a member of the political community, (who) falls within the Second Amendment’s guarantee.”

“The question is whether the government can strip the Second Amendment right of anyone subject to a protective order – even if he has never been accused or convicted of a crime,” Thomas wrote. “It cannot.”

How the decision affects Hunter Biden

By focusing on Rahimi’s “dangerous” conduct, the high court did not foreclose a series of other challenges to federal disarmament laws already pending at the Supreme Court, including one related to Hunter Biden’s felony gun case.

One of those cases that has been appealed to the justices centers on a Mississippi man who is challenging a federal law that makes it a crime to own a weapon while being an “unlawful user of or addicted to” illegal drugs. The 5th Circuit sided with the man last August, saying the nation’s history and tradition did not support that restriction.

What the high court ultimately does with that case will be closely watched because it is the same law at issue in Biden’s gun case in Delaware.

Biden has already raised the 5th Circuit case, US v. Daniels, in an attempt to throw out his own case. The judge who oversaw his trial denied that effort and Biden was later convicted of violating that law and two other federal firearms laws. His lawyers are expected to mount another challenge to the constitutionality of the law in a post-conviction appeal.

Friday’s opinion did not “doom” Biden’s challenge, said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, but it did not appear to “materially assist” the arguments that the president’s son is making.

The fact that the ruling was an 8-1 decision shows that, in some ways, it was the easiest kind of case the Roberts court could encounter under the Bruen test handed down two years ago. The justices were convinced that the federal ban on alleged domestic abusers possessing guns survived Rahimi’s challenge because there were historical analogues in Founding-era gun laws that targeted “dangerous” conduct.

Other gun challenges on the way

In addition to the Daniels case, the high court is juggling several other potentially significant Second Amendment cases.

One deals with a Pennsylvania man’s challenge to a federal law prohibiting felons, including those who are non-violent, from possessing firearms. The man at the center of that case was convicted of welfare fraud after he lied on a form to obtain food stamps.

The majority rejected an argument raised by the Biden administration that people who are not “responsible” could also be barred from owning guns. Solicitor General Elizabeth Prelogar presented that argument with an eye toward several other challenges pending to similar federal gun prohibitions that involve non-violent criminal activity.

But Roberts wrote that “responsible” is a vague term and that the “question was simply not presented.”

Other cases waiting in the wings at the high court deal with challenges to Illinois’ ban on “assault weapons” and New York’s regulations on carrying concealed firearms.

The court may decide in the coming days if it will hear oral arguments in those cases.

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