WASHINGTON — One court ruled that federal law cannot bar someone from owning a gun just because that person is subject to a domestic violence restraining order.
Another decided that preventing someone convicted of a nonviolent felony from owning a gun is unconstitutional.
And a third found that the federal law prohibiting people under 21 from owning firearms is unlawful.
All of these recent rulings by lower federal courts are the product of court decisions striking blows against long-standing federal gun restrictions that were issued by lower court judges in the past year after the Supreme Court, in a sweeping ruling, expanded gun rights by finding for the first time that the Constitution’s Second Amendment right to bear arms extends outside the home.
The decision by the Supreme Court's 6-3 conservative majority has led to a flurry of challenges to long-standing laws — both federal and state — and prompted some judges to find they are unlawful under the new standard. Other judges have upheld gun restrictions, creating divisions on the law across the country. It has also led to blue states passing a new wave of gun laws in the hope that they will not fall foul of the Supreme Court’s rationale.
Now the issue is back on the Supreme Court’s doorstep again, with the Biden administration asking the court to reverse the lower court ruling that invalidated the federal law barring people subject to domestic violence restraining orders from possessing firearms.
The justices are scheduled to discuss in private on Thursday whether to hear the case in what will be the first real test of how broadly the court’s conservative majority wants its 2022 ruling to be interpreted.
The new test the Supreme Court adopted in New York State Rifle and Pistol Association v. Bruen requires judges to focus solely on whether a law comports with a historical understanding of the Second Amendment.
The conservative majority, in deciding Bruen, appeared concerned that lower courts had not cast a more skeptical eye on gun restrictions after the Supreme Court's previous major gun rights ruling in 2008.
The immediate impact of Bruen seems to suggest that lower courts, which have tilted to the right in recent years because of the appointments made by former President Donald Trump, have received the message this time.
"Now we see not only more decisions more quickly, but we see decisions striking down laws not thought to raise serious Second Amendment problems in the first place," said Jake Charles, an expert on firearms law at Pepperdine University's law school.
Domestic violence claims
While gun rights activists have taken aim at state and local restrictions in the aftermath of the Supreme Court ruling, a key battleground is on a series of federal restrictions that are listed in a section of law called 18 U.S. Code Section 922.
One of those provisions — 922(g)(8) — concerns anyone "subject to a court order" in which they were found to be a threat to a domestic partner or child.
Zackey Rahimi, an accused drug dealer in Texas whose partner obtained a restraining order in February 2020, is one such person.
During an incident in an Arlington, Texas, parking lot the previous year recounted by the federal government in court papers, Rahimi was accused of knocking the woman to the ground, dragging her to his car and pushing her inside, knocking her head on the dashboard in the process. He also allegedly fired a shot from his gun after realizing that a bystander was watching.
While the protective order was in effect, Rahimi was implicated in a series of shootings, including one incident in which he allegedly fired bullets into a house using an AR-15 rifle, the federal government says.
Rahimi faced state charges for the domestic assault and another assault against a different woman.
He was prosecuted separately for violating the federal gun restriction law and, before the Supreme Court had issued its new gun rights ruling, argued that the case should be dismissed because of his Second Amendment right to bear arms.
A federal judge rejected the claim, noting that the law had previously been upheld. On appeal, the 5th U.S. Circuit Court of Appeals in New Orleans initially reached the same conclusion.
Then the Supreme Court issued the Bruen decision.
As a result, the appeals court heard additional briefing and abruptly changed course, ruling in March that because of the expansion of gun rights, the law "fails to pass constitutional muster."
It is Rahimi's case the Biden administration has asked the Supreme Court to hear, with Solicitor General Elizabeth Prelogar saying in court papers that the appeals court's ruling was "profoundly mistaken."
The decision "threatens grave harms for victims of domestic violence," she said.
Even under the Bruen standard, the law should be upheld, Prelogar said, because there is a long history of the government disarming people who are a danger to others.
Meanwhile, challenges to other provisions of federal law are gathering steam in lower courts.
Earlier this month, the 3rd U.S. Circuit Court of Appeals in Philadelphia targeted another provision, 922(g)(1), that prohibits felons from possessing guns. The court ruled that the law was unconstitutional as applied to people convicted of nonviolent crimes.
In reaching that conclusion the court said there was no historical tradition of people being disarmed after being convicted of nonviolent crimes.
Other rulings on different provisions, including ones prohibiting people under felony indictment and users of illegal drugs, from possessing firearms, have followed a similar pattern.
Both gun control advocates and gun rights supporters agree that the court should take up the Rahimi case because the Bruen case has led to such disparate results in lower courts.
"We would be thrilled to get further clarification from the court on these issues," said William Sack, a lawyer at Firearms Policy Coalition, a gun rights group.
For those favoring gun control, the hope is that there is a majority on the Supreme Court that will uphold long-standing provisions like the one at issue in the Rahimi case. To do so without overturning Bruen, they would need to find that those restrictions are consistent with the historical understanding of the Second Amendment.
The path to victory likely involves winning the votes of Chief Justice John Roberts and Justice Brett Kavanaugh.
Although both were part of the 6-3 conservative majority in Bruen, Kavanaugh wrote a separate concurring opinion joined by Roberts in which he outlined what he called "the limits of the court's decision," making it clear that the Second Amendment does allow for gun regulations.
Citing previous court rulings, Kavanaugh specifically highlighted the prohibition on the possession of firearms by felons and people with mental illnesses as an example of laws that were not under threat.
"If you add up the votes, the two of them together [Roberts and Kavanaugh] were necessary for the majority. I think everything they said will guide them when they are looking at the next case," said Janet Carter, a lawyer at Everytown for Gun Safety, a group that backs gun restrictions.
