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Guest Essay
By Linda Greenhouse
Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
Ever since the Supreme Court agreed in June to hear the government’s appeal of a particularly noxious Second Amendment ruling, I had been curious to see which “friends of the court” might emerge on the gun-rights side.
Supporting the lower court’s judgment figured to be a delicate task. The United States Court of Appeals for the Fifth Circuit, interpreting the Supreme Court’s sweeping and destabilizing 2022 Bruen gun rights decision, declared unconstitutional a federal law that prohibits a person subject to a court-issued restraining order for domestic violence from owning a gun. There was no analogous prohibition when the Second Amendment was adopted, the Fifth Circuit panel declared, and so under the Bruen decision’s history-is-all-that-counts reasoning, there could be none today.
Granted, the current Supreme Court majority has already turned the Second Amendment into a runaway train, but this new case, United States v. Rahimi, to be argued on Tuesday, may tell us whether the train has jumped the tracks entirely.
A state court in Texas granted Zackey Rahimi’s ex-girlfriend, the mother of his child, a two-year protective order prohibiting him from possessing a firearm after he assaulted her in a parking lot in 2019 and threatened to kill her if she told anyone. Under the 1994 federal law now at issue, Section 922(g)(8), it was a crime for Mr. Rahimi to possess a gun, which the protective order warned him about. But in December 2020 and January 2021, he went on a shooting spree, leading the police to get a warrant to search his home. They found a pistol and a rifle — and a copy of the protective order.
Mr. Rahimi pleaded guilty and received a more than six-year prison sentence for the federal crime of possessing a gun while under a restraining order for domestic violence. He challenged the law’s constitutionality under the Second Amendment and lost. But then the Supreme Court decided the Bruen case, holding that regardless of the rationale for a particular firearms limitation, none can stand unless the government can point to a “relevantly similar” regulation in existence in the late 18th century. The Fifth Circuit then withdrew its initial opinion and, finding Section 922(g)(8) now unconstitutional, vacated Mr. Rahimi’s conviction.
Anticipating the Supreme Court showdown, I tried to put myself in the place of a Second Amendment enthusiast but found it hard to imagine a less appealing context for making a pro-Second Amendment argument. Obviously, the federal public defender who won Mr. Rahimi’s case would defend the Fifth Circuit’s judgment; that’s his job. But was there anyone else who would urge the justices to rule that a law enacted with strong bipartisan support almost 30 years ago with the goal of protecting women from lethal violence by their intimate partners could no longer be enforced?
The answer to my question was not what I expected. While Mr. Rahimi’s side of the case attracted 22 amicus curiae briefs, a modest but respectable number, something was missing. Two things, in fact.
The first was elected officials. There were none. The contrast with the Bruen case two terms ago was stark. Bruen was a challenge to New York’s strict gun-licensing law. The organization challenging the law, the New York State Rifle & Pistol Association, drew nearly 50 briefs that collectively represented hundreds of individuals and organizations. Notable among them were a brief signed by 176 members of the House of Representatives and another joined by 25 senators. Arizona and 25 other states filed a brief. Gov. Greg Abbott of Texas filed one in his own name. There were elected officials on the other side as well, 152 senators and House members on a brief supporting New York’s law.
This time, while 174 senators and representatives have their names on briefs urging the court to overturn the Fifth Circuit, the silence on the other side speaks volumes. Where was Mr. Abbott, who proclaimed proudly in his Bruen brief, “Some stereotypes are true: ‘The people of Texas are now, and ever have been, emphatically an armed population.’” Where was Senator Ted Cruz of Texas and 24 other senators, whose brief in Bruen argued that modern “legislatively asserted interests” should play no part in justifying a limitation on gun rights? Could it be that these politicians, never known to shy away from heated rhetoric and bold moves — Mr. Cruz voted in January 2021 against certifying Pennsylvania and Arizona’s electoral votes — lost their nerve in the Rahimi case? Is the case that toxic even in gun-loving Texas?
And that brings me to the second missing ingredient in the briefs supporting Rahimi: the Second Amendment itself. I don’t mean that the Second Amendment is missing from every brief; a brief from the Foundation for Moral Law and signed by, among others, Roy S. Moore, the former Alabama chief justice who founded the organization, calls the Fifth Circuit’s decision “a thorough and faithful application of the founders’ original understanding of the Second Amendment’s right to bear arms.” He declared that “the founders who ratified the Constitution on behalf of their respective states would never have tolerated such a restriction.”
But a number of other briefs in support of Mr. Rahimi, after mentioning the Second Amendment in passing, pivot quickly to what they present as a separate ground for striking down Section 922(g)(8): due process. The Cato Institute, a libertarian organization that played a prominent role in the litigation that led the Supreme Court to declare an individual right to gun ownership in the 2008 Heller decision, argues in the first section of its brief that “Section 922(g)(8) fails to ensure that gun owners receive sufficient predeprivation process before their Second Amendment rights are suspended.” While the law requires that gun owners receive notice and the opportunity to participate in the hearing that will determine the consequences of the protective order, it does not provide a lawyer or set a specific standard of proof.
That is not surprising, the Cato brief notes, because when Section 922(g)(8) was enacted, there was no recognized right to individual gun ownership in the first place. The National Rifle Association asserts in its brief that “the court would not allow any other fundamental right (voting, worship, search and seizure, interstate travel, parenting and procreating, marriage, speech, self-incrimination, trial by jury, etc.) to be deprived through such minimal process.”
Other briefs in support of Mr. Rahimi take issue with the nature of protective orders themselves. They are too easy to get and don’t require specific findings of dangerousness, several criminal defense organizations argue; moreover, they can be used as bargaining chips in divorce cases. These briefs play off a concurring opinion in the Fifth Circuit’s Rahimi decision by Judge James Ho, who described civil protective orders as “a tempting target for abuse,” too often issued automatically by family-court judges in the absence of evidence of a real threat of violence.
When I first read Judge Ho’s opinion, I regarded it as an odd digression from the matter at hand, namely how to interpret and apply the Second Amendment. But so many briefs cite the opinion that I now see it — and the due process argument that it relates to — as a possible route for justices who want to strike down Section 922(g)(8) without shouldering the opprobrium that Mr. Abbott, Mr. Cruz and other absent officeholders apparently are seeking to avoid by their silence. Does even this trigger-happy Supreme Court want to be seen as stripping from women in mortal danger from their intimate partners whatever safety this 29-year-old law has provided? Maybe a justice or two in the six-member Bruen majority would rather be seen in the Rahimi context as standing up for due process rather than for domestic abusers.
Research shows that the presence of a gun in the hands of an abuser makes it five times as likely that a female victim will be killed. That inconvenient fact will remain a fact even for a court more attentive to life in 1791 than death in 2023.
Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”
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