The Daily - The Supreme Court Tests Its Own Limits on Guns

Episode Date: November 9, 2023

A critical gun case was argued before the Supreme Court this week. But instead of opening further freedoms for gun owners — as the court, with its conservative supermajority, did in a blockbuster decision last year — justices seemed ready to rule that the government may disarm people under restraining orders for domestic violence.Adam Liptak, who covers the Supreme Court for The Times, explains why.Guest: Adam Liptak, who covers the Supreme Court for The New York Times and writes Sidebar, a column on legal developments.Background reading: The Supreme Court seemed likely to uphold a law disarming domestic abusers.But a decision on the case is not expected until June.What has the Supreme Court said on guns?For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. A critical gun case was argued before the Supreme Court this week, one of the few in modern history. But instead of opening further freedoms for gun owners, the court, with its conservative supermajority, seemed ready to set a limit. Today, my colleague Adam Liptak explains. It's Thursday, November 9th. So, Adam, we've just had oral arguments in a very important gun case. And you previewed it for us in October. And it was going to be one of those tests of just how far to the right this court was going to go. So I've been watching your reporting, saw the case come up,

and I wanted to give listeners a real sense of what the answer to that question might be. So let's dig into it. Remind us why this case is so important. So this case is important on two levels. First level, very important. Second level, even more important. The very important question the court is looking at is, can the government make it a crime for someone to have a gun if they're the subject of a domestic violence restraining order? The presence of

firearms combined with domestic strife is a recipe for lethal violence. So the answer to that question, very important. Even more important, though, is the way the court is going to approach that question, because not long ago, in 2022, it announced a new Second Amendment standard by which to judge all kinds of gun control measures, one that is rooted in history. one that is rooted in history. Right. And this is, of course, the Bruin decision, which we've talked about a bunch on the show, this kind of revolutionary decision that really threw all of the cards up in the air because this historical requirement seemed to make it much harder to put new limits on guns.

So it was really a big win, potentially, for gun rights advocates. It sure looked that way. What the court told us last year is that in judging whether a gun control measure is constitutional or not, courts are supposed to look at the founding era and see if there were analogous restrictions back then, whether in the 1700s there were regulations that addressed, say, domestic violence or whatever. And the court said, it doesn't have to be a perfect match, but it has to be analogous. And that, even as I say it, it's hard to put your finger on exactly what that means. So using that historical test has caused both confusion and a mountain of work for lower court judges who are not historians, you know, who are meant now to, you know, find parchment documents written in quill pen that may or may not match up with some contemporary law. It's what one judge called a game of historical where's Waldo of trying to find restrictions that more or less match up to contemporary restrictions. And just in the year after

Bruin, courts have more than two dozen times struck down gun control laws because they couldn't find historical analogies. Right. Okay, so that's the landscape that the courts have been navigating for the past year, a big effect with this new standard. Which brings us to the case argued this week. I remember when we last talked about it, the guy at the center of the case was pretty unsympathetic. Remind us of the details. So the case is called United States v. Rahimi. It concerns a young man named Zaki Rahimi, who a few years ago physically assaulted his girlfriend. She seeks a restraining order.

A judge grants the restraining order, saying that Rahimi is likely to commit violence again. And that restraining order also tells him that he can't have guns. And if he is found possessing a gun, that would be a federal crime. But that doesn't stop Rahimi from committing a string of gun crimes. In one case, he takes a shot at a fellow driver in a road rage incident. In another, after someone is talking trash about him in social media, as he put it, he shoots a gun into that person's house. Huh.

After a friend's credit card was declined at a Whataburger fast food restaurant, he takes out a gun and fires several shots into the air. Luckily, nobody was killed during these incidents, but Zaki Rahimi was a one-man crime spree. And so these incidents draw the attention of law enforcement. The authorities search his home. They find guns. They find a copy of the restraining order that says he can't have guns.

And he's charged with the federal crime of possessing guns while being subject to a domestic violence restraining order. And he's convicted. And he gets a pretty stiff prison sentence. So he challenges that ruling in federal court. And gun rights groups do not love this because he's the least sympathetic possible protagonist in a Second Amendment case. And the lower courts initially ruled against Rahimi, said he could be prosecuted. So he loses in a district court, he loses in the appeals court.

But then Bruin happens. Rahimi goes back to the appeals court. And the appeals court under Bruin takes a fresh look at this question and concludes, wait a second. We can't find a historical analog that closely matches up to domestic violence. And therefore, they rule for Rahimi and they strike down the law as unconstitutional. Okay, so this is a clear example of the legal earthquake we were talking about, right? Like the historical standard was actually used to overturn the law that Rahimi had been jailed under. Right, so the Biden administration takes the case to the Supreme Court. They're probably delighted in one sense that they have

such a sympathetic case to take to the court. And the justices accept the case as they almost always do when a lower court has struck down a federal law. I think the justices think that if anyone's going to be striking down federal laws as unconstitutional, it ought to be the Supreme Court and not lower courts. Okay, so that's how the case shot up to the Supreme Court. And that brings us to the oral arguments that you heard this week. So you were there, Adam. Tell me how they began. So the Biden administration took the case to the court and they get to go first. General Proligar. Mr. Chief Justice, and may it please the court, guns and domestic abuse are a deadly combination.

They're represented by Elizabeth Prelogger, the Solicitor General of the United States, the Justice Department official whose job it is to argue cases before the Supreme Court. And she talks to the justices very much in the language of Bruin, in the language of history. Like Heller and McDonald, Bruin recognized that Congress may disarm those who are not law-abiding, responsible citizens. That principle is firmly grounded in the Second Amendment protects law-abiding and responsible citizens and gives them a right to keep and bear arms. And she bears down on that phrase. This case focuses on the not responsible citizens principle. She says she's not focused in this case on law-abiding, but she is focused on responsible. focused in this case on law-abiding, but she is focused on responsible. And initially,

there's some resistance to that, particularly from the chief justice. Responsibility is a very broad concept. I mean, not taking your recycling to the curb on Thursdays. He thinks that responsible is too vague a phrase. He says, well, what if I don't take out the recycling? I suppose I'm not responsible. What if I get in a fight at a ballgame? I suppose I'm not responsible. What seems irresponsible to some people might seem like, well, that's not a big deal to others. So what is the model? And she says… So I want to be really clear that we're not using the term not responsible to describe colloquially anyone who you might describe as demonstrating irresponsibility in many of those contexts that you just described in your hypotheticals.

It's actually a kind of a term of art. Intrinsically tied to the danger you would present if you have access to firearms. It's actually a way of talking about whether people are dangerous or not. Responsible people are not dangerous people. And if you can show that someone is dangerous, there are general laws from the founding era that allow the government to disarm people who was guilty, say, or even had a restraining order, that domestic violence is dangerous. OK, so someone who poses a risk of domestic violence is dangerous. So in other words, to bring this back to the historical standard set by Bruin, rather than finding some exact one-to-one law in the books about domestic violence from way back when, Prelugger is basically saying it was clear that there were laws stating the general principle that dangerous people should not have guns. And we can apply that principle to domestic violence cases in the present day.

Right. To rely on founding era laws, but at a high level of generality. So they're not talking about domestic violence as such, but they're talking about you can disarm dangerous individuals. And that mode of argument by Prelogger seemed to really work with most of the conservative justices. Do you think the level of generality, I take your point, you've got surety laws, you've got a fray laws, you've got a lot of historical evidence. Because they could rule in favor of the law and against Rahimi without doing damage to their general project of making the Second Amendment be a subject of a history test. Okay, so interestingly, some of the conservative justices are coming around on the case. But what about Clarence Thomas, who's, of course, the most conservative justice and actually wrote the

majority opinion on Bruin? So, Sabrina, Clarence Thomas and, to a large extent, the other most conservative justice, Samuel Alito, seemed not to really like where this was going. What if someone, this is a civil action, I think we could agree on the, if these were criminal proceedings. we could agree on the, if these were criminal proceedings. They're not convinced that there's enough due process in abbreviated civil domestic violence hearings. If this were a criminal proceeding, then you would have a determination of what you're talking about. Someone would be convicted of a crime, a felony assault or something.

But here you have something that's anticipatory or predictive, where a court, a civil court, is making the determination. And I think they were nervous that this great project of Bruin might be undermined by the eventual decision in the Rahimi case. And what about the liberal justices? I mean, I'm assuming that they were pretty happy to have the center of the court agreeing with the Biden administration on the case. Well, the liberal justices, of course, are happy to sustain most gun control laws, to sustain most gun control laws, and they will vote for the government and against Rahimi. But they also use the argument and might like to use the case to make a broader point.

Can I ask you a question about that, though? I guess I'm trying to understand whether we can really be analyzing this consistent with the Bruin test. To question whether this history-based standard makes any sense. I'm just trying to understand how the Bruin test works in a situation in which there is at least some evidence that domestic violence was not considered to be, you know, subject to the kinds of regulation that it is today. subject to the kinds of regulation that it is today. So Justice Katonji Brown Jackson, for instance, was asking a series of questions about, well, why are we looking at the founding era to begin with? What's the point of going to the founding era? I mean, I thought it was doing some work, but if we're still applying modern sensibilities, I don't really understand the historical framing.

uh, sensibilities, I don't really understand the historical, uh, framing. The work that history... So liberal justices are saying, hey, conservatives, we agree this law should stand, but we disagree that it's a narrow case. Like, we feel this leads to a broader question, which is the whole historical standard is kind of wrong. Right. So there's disagreement about how you get there, what rationale you use to uphold this law on domestic violence. But there's seeming consensus that the answerices, perhaps with the exception of Alito and Thomas, seem persuaded by Prelogger. So what is the lawyer representing Rahimi and the gun rights side of the case argue? I mean, it sounds like he's going to have a pretty uphill battle. Right.

Mr. Wright? Thank you, Mr. Chief Justice, and may it please the court. Rahimi is represented by a federal public defender named Matthew Wright. He argues second. And by the time he gets up, his central argument has been cut out from under him. It feels like what the government is doing is looking down the dark well of American history and seeing only a reflection of itself in the 20th and 21st century and saying, that's what history shows. 20th and 21st century and saying that's what history shows. I think he was prepared to argue that there's no analogous ban from the founding era and therefore he wins. Right. That argument

undermines so much in the first half of the argument left him a little unfocused and a little unsure about how to answer a series of questions from the justices about the implications of his position in other settings. Do you think that the Congress can disarm people who are mentally ill? Setting aside an enumerated powers problem, so they're in the District of Columbia or something like that. And his answers... That's the honest truth, Mr. Wright. I feel like you're running away from your argument. ...did not satisfy many of the justices. I mean, is that the position you really want to take? So it was a different tone in the second half of the argument.

I'm so confused, because I thought your argument... Where you had a less assured performance by someone who does not appear to be a appellate specialist. And there was a very telling exchange. To the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you? The chief justice said, well, you agree that your client is dangerous. Your Honor, I would want to know what dangerous person means.

Well, I mean, someone who's shooting, you know, at people, that's a good start. That's fair. I'll say this. You know, at that point where the Chief Justice of the United States is saying your client is dangerous because he goes around shooting at people, you have an uphill fight ahead of you. Right, right. at people, you have an uphill fight ahead of you. Right, right. So by the end of the argument, you had one very assured performance, one that was the opposite of that performance, and a host of open questions about how they're going to rule in this particular case and how that ruling will impact gun laws in countless other cases. We'll be right back.

So, Adam, you've described a pretty lopsided day in court with the Solicitor General laying a framework that most of the justices agreed with. What's your sense of how the court's going to rule? Gorsuch, Barrett, and Kavanaugh, and the Chief Justice, Republican appointees, but by the standards of this Supreme Court, relatively moderate. And they will probably try to write a decision as narrow as they can upholding this law and kicking every other question about it down the road. The liberals, Kagan, Sotomayor, and Jackson, will agree that the law should be upheld, but they will almost certainly say, hey, it's time to rethink whether this new construct, this new test from Bruin, makes any sense at all. And then on the far right side of the court, Justices Thomas and Alito will either dissent or issue a grudging concurrence in which they will try to make the point that they meant what Justice Thomas said in Bruin,

that unlike other parts of the Bill of Rights, this is a part of the Bill of Rights that should be understood purely as a historical matter. But Adam, if that's how the decision is written, is this actually that narrow of a ruling? I mean, you'd mentioned that the middle-of-the-road conservative justices were kind of agreeing to this principle idea that Prilogar was suggesting. So it seems like that could actually open the door for gun control groups to try to do all sorts of new stuff, like no need to find a historical twin anymore. It will depend a lot on how it's written. People will make use of it as best they can. But you're right to say that to the extent you're going to be able to discern general principles,

not dead ringers, not historical twins, that moves it away from the conservative legal movement's way of thinking about the Constitution, which is an effort to unearth its original meaning, and more in the way liberals like to think about the Constitution as a living document that sets out general principles that succeeding generations can use to address contemporary problems. It's almost as if Preligar has sort of moved the goal line on the standard, right? I mean, in fairness to Justice Thomas, in his opinion in Bruin, he did say that there are two kinds of analogies. There's one that is a reasonable fit, and there's the other that, as he said, is a twin, a dead ringer. And he said you only need the reasonable fit.

But what that reasonable fit is, and how broad the principles you can draw on from history, this will be a challenge for whoever writes the majority opinion, almost certainly a conservative, for whoever writes the majority opinion, almost certainly a conservative, because they will both have to adopt parts of the Solicitor General's argument, but also not go too far in opening the door to all kinds of general principles that would sustain all kinds of gun laws. So let's talk about what this case might mean for the future of gun laws in this country. If the court rules in the way that you've indicated that it might, what does that mean for the future of Bruin and how the court considers gun regulation? Well, Bruin's not going anywhere, Sabrina, and the history test is not going

anywhere. And there's a ton of litigation. There are all kinds of laws. Let me give you a couple of cases that are already at the Supreme Court. Petitions seeking review have been filed in these cases, and they present, I think, harder questions than Rahimi does. One asks whether a federal law that disarms felons, people who've committed serious crimes, is constitutional in every application. And the guy bringing the case says, I made a false statement to obtain food stamps 30 years ago. That shouldn't prohibit me from having a gun. And you're probably going to search the historical records in vain to find people lying about food stamps in the founding year. Similarly, there's a federal law that disarms people who use illegal drugs.

And someone who uses marijuana fairly heavily, but maybe no different than a social drink or drinks, has brought a case to the Supreme Court, having won in the lower courts, saying he should not be disarmed because he's got a pot habit. So on their face, they're much more sympathetic cases for the gun rights advocates. Right. The bottom line is just because Rahimi loses, as he probably will, doesn't mean these other people will lose. There are countless cases in the lower courts challenging all kinds of gun laws, and not only who can have guns, but also you can ask questions about where can you bring your gun? Can you bring it to a school? Can you bring it to

a courthouse? Can you bring it to the post office? Can you bring it to Yankee Stadium? And then a third category, what kinds of guns? So-called assault weapons, open question. Machine guns, probably not. Handguns? Apparently, yes. I mean, there's a million questions here. Right. And this Rahimi case may have actually been a bridge too far. But what you're saying is there are a lot of other cases out there and a lot of other legal questions to be answered that may not, in the minds of this 6-3 conservative court, be taking it too far. Right. And it'll be very interesting to read, probably not till June, how exactly they grapple with the history test in Rahimi in a way

that rules against Rahimi, but tries not to do substantial damage to their larger project of looking to history to decide whether gun laws are constitutional or not. Adam, you know, it strikes me that this is all very new, right? I mean, we're in this new era of Second Amendment interpretation. The court is now going to hear all of these new cases that figure out the details of what the right to bear arms actually means in practice. You're quite right, Sabrina.

Remember, it was only in 2008, for the first time in the history of the republic, that the Supreme Court recognized an individual right to keep and bear arms. It's a very new individual right. Then the court basically went silent for more than a decade until 2022 in Bruin, announcing this new test. Now we have the first application of the new test. So that's kind of three major Second Amendment cases, and that's characteristic. The court has been explaining and refining the First Amendment for many decades. We're just at the beginning of the road for the Supreme Court to start to tell us what exactly is meant by the rights conferred by the Second Amendment. And this Rahimi case will be a big step in the direction of trying to grapple with and understand this constitutional right.

Adam, thank you. Thank you, Sabrina. We'll be right back. of actors reached a tentative deal with entertainment companies in Hollywood on a contract. The agreement includes pay increases, health care funding, and agreements on how AI will be used. It comes more than a month after the Writers Guild of America negotiated its own deal and clears the way for the $134 billion American movie and television business to swing back into motion. And Secretary of State Antony Blinken said Wednesday that the Gaza Strip should be unified with the West Bank under the Palestinian authority once the war ends, the strongest signal yet from the Biden administration about what it would like to see at the end of Israel's fight against Hamas in the enclave. Blinken offered no details about how such an arrangement might be implemented, but restoring the Palestinian Authority, which administers parts of the West Bank, to power in Gaza would

not be easy, even if Israel managed to end Hamas's rule. Today's episode was produced by Rob Zipko, Will Reed, and Muj Zaydi. It was edited by M.J. Davis-Lynn and Patricia Willards. Contains original music by Marianne Lozano and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wonder League. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.