The Supreme Court Tests Its Own Limits on Guns

from The New York Times I'm Sabrina. tavernes and this is the. [Music]. 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 super majority seemed. ready to set a limit today my colleague.

Adam lipac. [Music]. explains it's Thursday November. [Music]. 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 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 the. 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 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 Wares Waldo of trying to find.

restrictions that more or less match up. to contemporary restrictions and just in. the year after bruan 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 versus. rahimi it concerns a young man named. Zaki rahimi who few years ago physically. assaulted his girlfriend she seeks a. restraining order a judge grants the. restraining order saying that rahime 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 it at. a waterburger 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 Crim 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 you know 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 rahime. said he could be prosecuted so he loses. in a district Court he loses in the.

appeals court but then bruan happens. rahime goes back to the appeals court. and the appeals court under bruan 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 rahime 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 B Administration took the. case to the court and they get to go. first general. prer Mr chief justice and may it please. the court guns and domestic abuse are a. deadly combination they're represented. by Elizabeth progger 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 bruan in the language of. History like heler and McDonald bruan. recognized that Congress May disarm. those who are not law-abiding. responsible citizens that principle is. firmly grounded in the second. amendment's history and tradition. throughout our nation she draws on.

earlier Supreme Court decisions which. have used a phrase that says the second. amendment protects Law Abiding and. responsible citizens and gives them a. right to keep in be arms and she Bears. down on that phrase this case focuses on. the not responsible citizens principle. and in this she says she's not 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 uh not taking your. recycling to the curb on Thursdays I. mean if you're 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 ball game. I suppose I'm not responsible what what. seems responsible to some irresponsible. to some people might seem like well. that's not a big deal uh uh to others so. what is the 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 as demonstrating. irresponsibility in many of those. contexts that you just described in your. hypotheticals it's actually kind of a. term of intrinsically tied to the danger. you would present if you have access to. firearms and I would draw 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 are dangerous and that seems to get. a lot of traction how do you know I mean. I think there would be little dispute. that someone who was um guilty say or. even had a restraining order that. domestic violence is dangerous okay so. someone who poses a risk of domestic. violence is dangerous how does the. Govern so in other words to bring this. back to the historical standards set by. bruan rather than finding some exact. onetoone law on the books about domestic. violence from way back when pre lugger.

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. pre-. seem to really work with most of the.

conservative justices do you do you. think the level of generality I take. your point you've got shy laws you got. AR Fray laws youve got a lot of. historical evidence because they could. rule in favor of the law and against. rahime 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 bruan so Sabrina. Clarence Thomas and to a large extent. the other most conservative Justice. Samuel. Alo seemed not to really like where this. was going what if uh someone this is a. civil action I think we could agree on. the If This Were these were criminal. proceedings they're not convinced that. there's enough due process respons in.

abbreviated civil domestic violence. hearings If This Were a uh uh criminal. proceeding then you would have a. determination of what you're talking. about someone would be convicted of a. crime a felony uh assault or something. but here you have a a something that's. anticipatory or predictive where uh a. court is civil court is making the. determination just from and I think they. were service 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 and. they will vote for the government and. against rahime but they also Ed the.

argument and might like to use the case. to make a broader Point principles can I. ask you a question about that though uh. I guess I'm trying to understand uh. whether we can really be analyzing this. consistent with the bruan test to. question whether this history based. standard makes any sense I I'm just. trying to understand how the breu and. test Works um in a situation in which um. there is at least some evidence that. domestic violence was not considered to. be uh you know subject to the kinds of.

Regulation that it is today so Justice. Katan Brown Jackson for instance was. asking a series of questions about 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 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 answer has to be that the law. is constitutional. okay so it sounds like pretty much all.

of the justices perhaps with the. exception of Alo and Thomas seem. persuaded by. proger so what is the lawyer. representing rahimi and the gun right. side of the case argue I mean it sounds. like he's going to have a pretty uphill. battle right Mr R thank you Mr chief. justice and may it please the court Rahe. 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 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 um. Congress can disarm people who are. mentally ill so setting aside uh an. enumerated powers problems over there in. the District of Columbia or something. like that um and his answers the honest. truth Mr R I feel like you're running. away from your argument did not satisfy. many of the just is I mean is that the.

position you really want to take so it. was a different tone in the second half. of the argument to that 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 app. pellet. 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 I would want to. know what dangerous person means well me.

someone who's shooting uh you know at. people uh that's a good start so. so that's fair I'll say this you know at. 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 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 I. separate the court into three blocks. there's the middle of the Court the. three Trump justices Gorsuch Barrett and. Kavanaugh and the Chief Justice. Republican appointees but by the. standards of this Supreme Court relative. 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 Sodor 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 bruan makes. any sense at all. and then on the far right side of the.

Court Justices Thomas and Alo will. either descent or issue a grudging. concurrence in which they will try to. make the point that they meant what. Justice Thomas said in bruan 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 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. prar 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 prar has sort of moved.

the goal line on the standard right I. mean In fairness to Justice Thomas in. his opinion in bruan he did say that. there are two kinds of analogies there's. one that is a reasonable fit and there's. the other that is 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 this will be a challenge for.

whoever writes the majority opinion. almost certainly a conservative because. they will both have to adopt parts of. the solicor 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 bruan. 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 people who have 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 wow. that shouldn't prohibit me from having a. gun and you know you're probably going. to search the historical records in vain. to find people lying about food stamps. in the founding era right uh similarly. there's a federal law that disarms. people who use illegal drugs and and. someone who uses marijuana you fairly.

heavily but maybe no different than a. social Drinker drinks has brought a case. to the Supreme Court having one 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 rahime loses as he probably will. doesn't mean these other people will. lose there are countless cases in the. lowerer 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 63 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 rahime in a way that. rules against rahime 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 in bare arms it's a very. new individual right then the court. basically went silent for more than a. decade until 2022 in bruan announcing. this new test now we have the first. application of the new test so that's. kind of three major Second Amendment. cases in the history of the Republic. interesting by contrast in this term.

alone there are five or six significant. First Amendment cases and that's. characteristic the court has been. explaining and refining the First. Amendment for many. decades we 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 ction of trying to. Grapple with and understand this.

constitutional. right Adam thank you thank you. [Music]. Sabrina we'll be right. [Music]. back here's what else you should know. today on Wednesday the union. representing tens of thousands of actors.

reached a tentative deal with. entertainment companies in Hollywood on. a contract the agreement includes pay. increases healthc care funding and. agreements on how AI will be used it. comes more than a month after the wrers. 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 Anthony. blinkin 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 Lincoln 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. [Music].

rule today's episode was produced by Rob. zipco will Reed and muj zavi it was. edited by MJ Davis Lynn and Patricia. willins contains original music by Maran. Lozano and was engineered by Alyssa. Moxley our theme music is by Jim. brunberg and Ben lansberg of. wonderly. [Music].

that's it for the daily I'm Sabrina. tavernes see you. [Music]. tomorrow.