The U.S. Supreme Court is hearing arguments on whether a federal statute, forbidding those under domestic violence restraining orders from possessing firearms, violates the Second Amendment. In a recent paper published in the Notre Dame Law Review, two former clerks to conservative justices have argued that the court’s recently adopted historical analog test doesn’t necessitate the overturning of such a statute, even if no similar law existed in the 1800s. They claim that the flexibility of this test has been commonly overlooked. This becomes the court’s first gun rights case after its ruling in the New York State Rifle & Pistol Association Inc. et al. v. Bruen et al, which broadened the range of the Second Amendment and introduced the historical analog test for ascertaining the constitutionality of a statute.
Since the landmark Bruen ruling, approximately 30% of the 312 civil and criminal cases that have cited the decision have resulted in the quashing of gun control provisions. These include a Fifth Circuit panel’s ruling which overturned the domestic violence order-related prohibition of the 18 U.S.C. Section 922(g)(8), in an appeal brought by Texas resident Zackey Rahimi.
However, according to the paper’s authors, many courts, including the Fifth Circuit, have misunderstood the historical analog test explained by Justice Clarence Thomas in Bruen. They posit that the Supreme Court can use the principles underlying similar historical laws to uphold at least some of today’s firearm possession bans for people under domestic violence restraining orders.
Regarding Rahimi’s case, in particular, the authors believe that the historical tendency of the nation to instate laws to promote public safety can support a ruling that the federal firearm prohibition for persons subject to domestic violence orders is constitutional. However, they question the section of the statute that activates the prohibition as soon as a court order is established, irrespective of whether any factual findings indicate a “credible threat” from the subject.
The Supreme Court’s forthcoming interpretation of the Bruen test in Rahimi’s case will set a critical precedent. It will also guide lower courts on its proper use and have implications for gun laws affecting felons and drug users as well as those subjected to domestic violence orders. The case is United States v. Zackey Rahimi, case number 22-915, in the Supreme Court of the United States.