The Supreme Court on Friday upheld a federal law barring individuals subject to domestic violence restraining orders from possessing guns. In doing so, eight justices sent an important message: The Second Amendment’s right to bear arms is not entirely unlimited, and there are situations where the government can restrict gun possession. This may come as a surprise to many who have watched the conservative-dominated court bolster gun rights over the years — but in reality it is an attempt to keep the lower courts in check after a series of vague and harmful rulings.
How, one might ask, is there any question as to whether someone like Rahimi could be barred from possessing guns, even temporarily?
The case in question involved a man named Zackey Rahimi. The record indicates that in 2019, Rahimi grabbed his girlfriend, who is the mother of his child, and “dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard.” After his girlfriend attempted to escape, Rahimi fired shots, which may have been aimed at his girlfriend or the person who witnessed the initial assault. Rahimi’s girlfriend came forward and requested a temporary restraining order against him, which a state court judge granted.
Undeterred, Rahimi violated that order, in part by approaching his girlfriend’s home at night. In addition, police officers “identified him as the suspect in a spate of at least five additional shootings,” according to the opinion. In one example, after a restaurant declined Rahimi’s friend’s credit card, apparently “Rahimi pulled a gun and shot into the air.” Ultimately, “Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order,” in violation of federal law.
How, one might ask, is there any question as to whether someone like Rahimi could be barred from possessing guns, even temporarily? The answer is that over the last 16 years, the court made two big conclusions about the Second Amendment that have created a high, high constitutional bar for imposing gun control measures.
First, in 2008, a deeply divided Supreme Court concluded that the Second Amendment’s right to bear arms applies not just to the military, or militias as the amendment’s wording states. Justice Antonin Scalia, writing for a five-person majority in District of Columbia v. Heller, identified for the first time an “individual right to possess and carry weapons in case of confrontation.” If you want to talk about legal earthquakes, this was one, creating a constitutional right possessed by all individuals to bear arms for self-defense. In practice, this means that if the government wants to tread on that right, it needs a compelling reason to do so.
The Heller opinion did recognize that this newly discovered right can be limited. Scalia specifically wrote that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” But lower courts have been struggling ever since to determine when this individual right to bear arms can be limited. The opinion from Chief Justice John Roberts represents an important clarification of the new standards the court has created over the last 16 years. Fast-forward to 2022, when the Supreme Court weighed in on New York State Rifle & Pistol Association Inc. v. Bruen. In the 6-3 opinion, the court struck down a New York law that required people who wanted to obtain a concealed carry permit to “demonstrate a special need for self-protection distinguishable from that of the general community.” In doing so, Justice Clarence Thomas created a new test that dictates that gun regulations at the state and federal level alike can only be upheld if they are “consistent with the Second Amendment’s text and historical understanding.” This is, to be clear, a more difficult standard to satisfy than the one lower courts were using prior to 2022. The Bruen ruling’s new standard allowed lower court judges to erroneously rely on it to strike down the federal law at issue in the Rahimi case. Specifically, the 5th U.S. Circuit Court of Appeals last year concluded that Congress had “failed to demonstrate” that the Domestic Violence Offender Gun Ban, which passed in 1996, “fits within our Nation’s historical tradition of firearm regulation.” Friday’s ruling in Rahimi overturned that decision, letting the law stand and remanding the case back to the lower court. The opinion from Chief Justice John Roberts represents an important clarification of the new standards the court has created over the last 16 years. The court’s conclusion that “when an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed” should be uncontroversial. It is in effect a relatively narrow shift, focused as it is on whether people like Rahimi — who throw their girlfriends against dashboards and fire shots at restaurant workers who decline credit cards — can temporarily lose their right to possess guns under the court’s recent decisions. It remains difficult for governments to limit gun ownership and possession — but Friday’s decision affirms that “difficult” is not the same as “impossible.”
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
