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The most fascinating class of Supreme Court oral arguments generally tend to be those that effectively raise the question “Erm, why are we here again?” And by virtually all accounts, arguments on Tuesday in what should have been the blockbuster gun rights case of the year, United States v. Rahimi, bogged down in various iterations that boiled down to: Why was the decision in Bruen—the 2022 case that changed the test for gun regulations—so stupid? Why is originalism so stupid? Why is the gun rights position in this case so very, very stupid? This was because, as Jay Willis explained in Slate, the winning argument in this case at the U.S. Court of Appeals for the 5th Circuit—that you can’t find any corollary law showing that the Founding Fathers would have taken guns away from domestic abusers—stemmed directly from Bruen’s impossible demand that every modern gun regulation must provide a direct historical analog. That position was always untenable, and now the Supreme Court’s conservatives are—once again—going to have to go back and mop up their own mess.
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The result in Rahimi will be yet another “Oopsie, our bad” ruling that does nothing more than boop the most unhinged elements of the conservative legal movement, while still leaving the state of American gun regulation laws uncertain. We’ve all heard this song before, particularly in recent voting rights and abortion cases. Still, there is a lesson here about how the Supreme Court will slowly back away from the gun violence cliff of its own making in the most minimalist way possible.
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The most notable aspect of the Rahimi arguments was its gauzy abstraction. Unlike some of the court’s recent cases in which there is no lower court record and thus no facts, Rahimi included a good deal of underlying factual information about the life and questionable times of one Zackey Rahimi, his months of reckless shooting-at-stuff, his threats, and his actual violence. Unlike the purely speculative harms that became the bulk of the case in, say, 303 Creative, the web designer case from last spring that didn’t even have parties on both sides of the decision to withhold professional services, Rahimi comes with actual facts.
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A state court granted Rahimi’s then girlfriend and the mother of his child a restraining order in February 2020, after he dragged her into his car following an argument, then smashed her head on the dashboard, then shot at a bystander who had witnessed the assault. The court records show all this, and the proceedings below detail his subsequent five shootings in the span of several weeks that followed. Under a federal law, he was no longer allowed to have a gun. He kept his guns. The 5th Circuit panel that determined that, after Bruen, Rahimi couldn’t be deprived of his weapons, and that the law that did as much was unconstitutional on its face, sniffed merely that Rahimi, “while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees.” The Supreme Court thus inherited the problem of an unrepentant, armed domestic abuser who looks a lot like every other unrepentant armed domestic abuser, and its own recent jurisprudence that surely implies, Yeah, why not?
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Yet with a handful of mild exceptions, the arguments at 1 First St. on Tuesday morning steered clear of old Zackey Rahimi. Only after Justice Samuel Alito implied that when a woman seeks a protective order in a domestic violence setting, the results tend to be “he said, she said” situations concluding in restraining orders against both parties, and only after Justice Clarence Thomas suggested that there existed only a “very thin record” in the present case did it become necessary for the remaining justices to intervene with actual facts from the actual record. As Justice Amy Coney Barrett was forced to remind her colleagues, who were at that point just parroting gun industry talking points, Rahimi’s girlfriend “did submit a sworn affidavit giving quite a lot of detail about the various threats. It’s not like he just showed up and the judge said ‘Credible finding of violence.’ ”
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But why stick to the facts when you can imagine better ones? So, despite the fact that Rahimi was not making a procedural argument about the unfairness of the civil restraining order process, both Alito and Thomas magicked up these objections. Despite the fact that there was a lower court’s finding that Rahimi was in fact a danger to his girlfriend and child, they coughed up hypotheticals that raised the issue of how generally unfair it is for courts to take away guns in a civil proceeding. As Thomas put it, “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. But here you have something that’s anticipatory or predictive, where a civil court is making the determination.” Alito—unsurprisingly—fretted more about the rights of the poor beleaguered gun owner than the woman he terrorizes: “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?”
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Jay Willis
The Supreme Court’s Big Gun Case Was Humiliating for the Justices
Read More In other words, the inversion process is now fully realized. The MAGA justices not only invent records in cases that have no facts. They also ignore the record in the cases that actually have them. Why consider the implications of actual gun violence when you can live in the imaginary world of good guys with guns suffering the indignities of legal restrictions?
Blessedly, at least on this occasion, there was no general agreement from the other conservative justices that pretending Zackey Rahimi right out of existence would yield better results. “You don’t have any doubt that your client is a dangerous person, do you?” Chief Justice John Roberts finally asked J. Matthew Wright, Rahimi’s attorney. Wright mulishly insisted that he would “want to know what dangerous person means.” Roberts, thus unable to ignore the actual facts of the case before him, supplied a plausible definition: “It means ‘someone who is shooting at people.’ … That’s a good start.”
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There was uneasy laughter in the chamber when Roberts said that, and Wright conceded it. In the current era, uneasy public laughter is often the signaling mechanism that lived reality has pierced a hypothetical John Wayne film festival being screened in D.C. Bruen was an interesting and failed lab experiment about deriving historical analogs from an imagined archive of founding documents. So, always follow the uneasy laughter—that tends to be where the people who end up as mass shooters and domestic abusers reside.
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“Someone who poses a risk of domestic violence is dangerous,” Barrett pronounced, conclusively, to the immense relief of the reality-based community on Tuesday. The result in the final Rahimi opinion will likely flow from that conclusion, which was shared by the chief justice and Justice Brett Kavanaugh (as well as, of course, the three progressive justices). But the fact that the bulk of the 90-minute legal debate in Rahimi was untethered both from the established facts of this case and from the gun violence data in the many amicus briefs filed reveals that this is still a conservative supermajority that remains more interested in debating whether and when a justice of the peace can seize a musket from a white dude than considering whether disarming violent abusers is a good idea.
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It’s critical not to miss the connection between these oral arguments and Tuesday’s other major news event in U.S. political and civil life. Shortly after oral arguments in Rahimi, a whole lot of people showed up at the polls to indicate that they are still absolutely furious that Sam Alito and his tunnel-visioned buddies evinced no interest in the lived economic, emotional, and medical lives of half the population when they reversed Roe v. Wade a year and a half ago. Democracy, it would seem, is less interested in establishing the correct level of abstraction for determining cunning historical analogs than in continuing to move through the modern world, alive. As embarrassing as the arguments in Rahimi proved to be, they also seem to signal that there are, for the moment at least, no longer five votes for the proposition that voters will shrug away violence and misogyny because, like, #history. From this court, that’s the best you can hope for. For this court, that’s a big retreat from the smug, wrong certainty that was Bruen.
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