Justices Alito and Thomas Unsurprisingly Argue That Domestic Abusers Have the Right to Own Guns

On Tuesday, the Supreme Court heard arguments over whether a Texas man under a domestic violence restraining order has a Second Amendment right to own guns. We’re in this hell because the court decided in June 2022 that modern gun laws are unconstitutional unless there’s a historical basis for them—meaning, would a bunch of 18th-century white guys agree with it or not?

United States v. Rahimi is one of the biggest cases of this Supreme Court term and Justices Clarence Thomas and Samuel Alito sounded very concerned that courts are stripping away a fundamental right from men who judges agree are abusive, while the other justices sounded very skeptical of the argument. But since it’s a blockbuster case, we likely won’t get a decision until late June 2024, which is when the court typically rules on the biggest appeals—regardless of when they were first argued. So we have a good seven months to worry about it.

Here’s the backstory: Zackey Rahimi’s ex-partner got a two-year restraining order against him in February 2020 after a 2019 incident in which he dragged her by her hair into his car in front of their child. When he saw that a bystander witnessed it, he pulled out a gun and fired at them. The woman escaped, but he later called her and threatened to shoot her if she told anyone about the assault. As part of the protective order, a Texas state court judge suspended Rahimi’s gun license—but not only did he contact his ex and go to her house, he also continued to keep guns. In November 2020, he was arrested after shooting at another woman and charged with aggravated assault. After three more shooting incidents, police searched his home and found multiple guns. A grand jury indicted him of violating a 1994 federal law that bans people under protective orders from owning guns; it’s punishable by up to 10 years in prison. Rahimi was initially sentenced to a little over six years in prison followed by three years of supervised release.

Then, in June 2022, Justice Clarence Thomas wrote an earthquake opinion saying that restrictions on gun ownership are unconstitutional if they didn’t have a historical analog. (That case was N.Y. State Rifle & Pistol Association v. Bruen.) After that ruling, the ultraconservative 5th Circuit Court of Appeals declared that laws preventing people subject to domestic violence restraining orders from possessing guns are unconstitutional. In effect, because the Framers didn’t address domestic violence, modern lawmakers can’t either. Rahimi has been in county jail as the appeals process plays out, and he said in a handwritten letter this summer that he no longer wants to own guns. But that hasn’t stopped gun rights groups like the National Rifle Association from lining up behind him and submitting friend-of-the-court briefs urging SCOTUS to strike down the 1994 law.

Domestic violence groups have made the stakes crystal clear with their amicus briefs, noting that removing guns from domestic abusers saves lives. And according to gun safety group Everytown, 70 women are shot and killed every month by current or former partners. In her opening comments, U.S. Solicitor General Elizabeth Prelogar—the person tasked with defending the law—made the same point. Prelogar said that the court recognized in a 2014 case that “all too often, the only difference between a battered woman and a dead woman is the presence of a gun.” Prelogar said the U.S. does have a long tradition of disarming people who are considered a danger to society. She also noted that domestic violence wasn’t considered a problem at the time of the founding, but that shouldn’t prevent governments from passing laws against it now. After all, modern laws ban guns in schools even though there isn’t a historical analog.

The three liberal justices all seemed like they’d vote to uphold the law and even Justices John Roberts, Amy Coney Barrett, and Neil Gorusch sounded like they disagreed with the arguments that Rahimi’s federal public defender was making.

But Justice Thomas and Alito were concerned that it’s too easy for state courts to take guns away from people accused of domestic violence but not convicted of a crime. “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,” Thomas said. “But here you have something that’s anticipatory or predictive, where a civil court is making the determination.” Justice Alito then posed a hypothetical showing he’s much more worried about people’s right to possess a gun than the dangers that gun could pose to others. “If the person [under the restraining order] thinks that he or she is in danger and wants to have a firearm, is that person’s only recourse to possess the firearm and take their chances if they get prosecuted?” Alito asked.

It’s horrifying to think about these arguments coming from the same Justices who voted to overturn Roe v. Wade—and Alito wrote that opinion himself. Homicide is the number one cause of death for pregnant people. Domestic violence hotlines have seen a spike in calls since the fall of Roe. We’ve seen stories in the last year of men shooting their partners because they did or didn’t get abortions.

If the Supreme Court eventually rules against Rahimi and strikes down the appeals court decision, it will be a win—but that doesn’t mean the court is suddenly reasonable, it just means their 2022 Bruen decision was so nuts that they have to put guardrails on it. It’s still absurd that this case even made it to the court in the first place.