The case of “Guns for Domestic Violence Abusers” was decided yesterday (June 21) in the Rahimi decision. As a practical matter, I am glad, as my heart goes out to the victims of domestic violence. Victims must be able to convince a judge to issue a restraining order that includes a finding that the defendant posed a physical threat to her or her child.

The case really focuses if gun ownership is a right or privilege. Fortunately, eight justices ruled upheld the regulation, ruling that handgun ownership can be temporarily suspended following for a court finding of a credible threat to the spouse or child.

The one dissenter to the case was Justice Clarence Thomas, who would have found the regulation violated criteria set down in the Bruen decision. He argued had to be sufficient “historical tradition of firearm regulation” to justify the suspension.

Both prior Supreme Court decisions (Heller (2008), Bruen (2022)) made firearm regulations more difficult. The prior decisions also split the court between liberal/moderate and conservative justices. Justice Scalia wrote the Heller decision, and was opposed by the four liberals/moderates on the bench (Breyer, Stevens, Ginsburg and Souter). The two moderates on the bench would be Justices Stevens and Souter, both nominated to the Court by Republican presidents.

Justice Thomas wrote the Bruen decision, which was opposed liberal justices Breyer, Sotomayor and Kagan.

See Wikipedia summary of Bruen:

The issue really comes down to public safety verses prior conservative interpretation of the Second Amendment in Heller and Bruen. It is not contested that there can be lawful restrictions on what can be bought or owned by the public, such as military weapons, designed specifically for mass destruction. It is just far gun restriction can go that pits liberals against conservatives.

In Heller, the dissent as written by Justice Breyer completely disagrees with the idea that the objective of the Second Amendment was to grant a general right to gun ownership. Instead, he argues it was to allow officers in the state militia (this pre-dates the standing army as we have today) to store their arms in their home. The conservatives seem to ignore the first 13 words of the amendment. (Note Judge Thomas did not do this; his opinion is exactly as shown below)

Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

One can contrast this to the First Amendment, which is an straight forward statement on what the US Congress could never do:

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How I wish our constitution could be amended just to say, gun ownership (like a driver’s license) is a privilege not a right.

As Roberts wrote in the case published yesterday (Rahimi case), historically there are many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.” Further, he wrote that the prior ruling (Bruen case) does not require a “historical twin.” Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where the provision might raise constitutional concerns. The majority opinion was joined by both liberals and conservatives.

The Rahimi case will be considered a landmark case. I can not say I honestly read all of Judge Thomas opinion. But, temporarily suspending the defendant’s right to own a gun, while he is currently under a restraining order from his spouse and child, seems like a very practical means of preventing a violent individual to commit murder. Judge Thomas seems very upset that the rights of a law-biding citizen (Mr. Rahimi) was suspended but zero concern for the victim of domestic violence who I am certain fears for her life.

Six justices added concurring opinions. I particularly liked Justice Sotomayor, who focused on why we have such regulations, to begin with:

To start, the Government has a compelling interest in keeping firearms out of the hands of domestic abusers. A woman who lives in a house with a domestic abuser is five times more likely to be murdered if the abuser has access to a gun.

So, it is one down and six to go.

Stay tuned,

Dave

Rahimi Case opinion

Note I state that Justice Thomas dissent included the full Second Amendment, Justice Gorsuch concurring opinion presents just the last 14 words. The amendment contains just 27 words in total.

I enjoyed Justice Sotomayor’s analysis of Judge Thomas dissent. She writes:

The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen. It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal.

Also she writes:

This case lays bare the perils of the dissent’s approach. Because the dissent concludes that “§922(g)(8) addresses a societal problem—the risk of interpersonal violence—‘that has persisted since the 18th century,’” it insists that the means of addressing that problem cannot be “‘materially different’” from the means that existed in the 18th century. Post, at 7. That is so, it seems, even when the weapons in question have evolved dramatically.