If Monday's argument was twisty and a bit hard to focus on, Tuesday's argument was the equivalent of a fast paced Dan Brown novel - easy to read and understand, and very entertaining. While there were certainly complex legal rules and principles at play in this argument, the underlying issue was quite simple - can the federal government make it a crime to possess a firearm in violation of a domestic violence restraining order?
Of course, if we're dealing with guns and the law, we're talking the Second Amendment. The once sleepy field of Second Amendment law got turned on its head back in 2008 when the Supremes decided District of Columbia v. Heller, an opinion that for the first time established that the Second Amendment protects an individual's right to bear arms rather than protecting some sort of collective right associated with militia service. The Supremes - and the lower federal courts - have spent the last 15 years trying to law out the contours of what that right actually protects. Most recently, the Court in 2022 decided New York State Rifle & Pistol Association v. Bruen, laying out what is effectively the new test of Second Amendment constitutionality:
This case, then, asks whether prohibitions on firearm possession as applied to individuals who have had a domestic violence restraining order entered against them meet the "historic tradition" test. The government lost in the 5th Circuit Court of Appeals, so Solicitor General Elizabeth Prelogar was up first, and she was ready to go. In her opening argument, the Solicitor General made the stakes very clear, forcefully arguing that "guns and domestic abuse are a deadly combination" and advocating the position that "Congress may disarm those who are not law-abiding, responsible citizens."
Justice Thomas, who generally asks the first question these days, immediately seized on this to try to establish that the government was using an overbroad, amorphous classification, directly asking what "law-abiding and responsible" means. This exchange allowed Prelogar to establish that there are essentially two prongs under which the government could disarm individuals in relation to domestic abuse restraining orders - the "law-abiding" prong which allows the removal of guns from anyone with a felony conviction; and the "responsible" prong. Under questioning from numerous Justices, Prelogar essentially conceded the point that "responsible" means "dangerous," but that the term "responsible" tracks how the Supreme Court has talked about this issue in the past, and more closely tracks the realities of the situation. After all, someone who is mentally ill might be "dangerous" in the sense that they could potentially represent a greater risk of harm to themselves or others with a firearm depending on the nature of their illness, but they wouldn't be culpable. They aren't dangerous in the sense that you would normally classify someone as dangerous - there is just a heightened risk that they could become dangerous in the wrong situation. As a result, the government argues that the term "responsible" more accurately reflects the classifications being used in the enforcement of the statute.
I was particularly taken with how the Solicitor General handled the question of whether this classification meets the historical tradition of firearm regulation, as is required by the Bruen decision. While there are not analogous domestic violence laws in the Founding era, the SG argued that to properly apply Bruen you don't need a specific regulation that is directly on point - the decision itself said that wasn't necessary. What you do need is evidence that there was a principle that you can consistently apply, and this is where "dangerousness" comes in. It has always been an accepted tenet of firearms regulation in the United States that dangerous individuals could be denied access to guns, provided due process protections were met. The same applies to individuals who have been found - after appropriate due notice is provided - to be a domestic abuse threat. The underlying principle - not the specific regulation - is what the government says the Court should be looking at in determining whether a restriction that implicates the Second Amendment is constitutional, and this provision clearly meets that test.
Justice Jackson raised perhaps the best question in the entire argument, and did so repeatedly in trying to establish the vacuousness of the "historic tradition" test from Bruen. She pointed out quite clearly that 200+ years ago in the Founding Era, there really was no such thing as domestic abuse legislation (Justice Kagan touched on this as well but not nearly to the level or with the precision of Justice Jackson). How, then, could you expect to look at the history and tradition of firearm regulations for this question, unless you want to be stuck with the public policy decisions of 200+ years ago? While it is unlikely that conservative Justices will turn on a test that was just articulated a year ago and which follows their base instincts so closely, they may well be convinced by this line of argument to issue a more narrow provision that acknowledges the ability of Congress to address domestic abuse situations - perhaps even by adopting Solicitor General Prelogar's standard.
Meanwhile, the Respondent/Defendant's lawyer did not do a particularly good job in his argument. It was disjointed, contradictory, and his questions were often non-responsive to what he was being asked. At one point Justice Kagan even told him point blank that she believed he was evading answer questions because he knew how bad his argument's were and didn't want to acknowledge it to the Court That's a definite "ooof" if I've ever heard one!
Finally, a lot of the argument today was taken up with questions about the facial challenge that was being considered by the Court and a to what extent that changed the analysis from what the Court would do if there was an "as-applied" challenge. The answer is indeed that there is a difference, because for a facial challenge all the Court has to do is determine that there are some contexts where the statute is Constitutional. If they do so, that is the end of the story. The Respondent in this case repeatedly acknowledged that violent behavior could lead to appropriate sanctions, including the loss of one's powers to possess a firearm. While Justice Alito tried to take the argument away from this basis by delving into details that might be a challenge for the government, and counsel for the Respondent regularly pushed into questions about due process which were not relevant to the question presented, several Justices brought it back to the nature of the challenge, including Justices Gorsuch and Sotomayor who essentially blocked off Alito's line of questioning and reinforced that the detailed questions he was asking would be better left for a future case that centered on those issues.
While I think Justices Thomas and Alito - and probably Justice Roberts as well - are deeply sympathetic to the anti-regulation side on Second Amendment questions, I actually think the logical need for this law is strong enough that they'll all join the majority as long as the opinion at least gives lip serving to holding on to the "historic traditions of firearm regulation" test. Expect one of them to author this one as well. As a result, I'm looking for a 9-0 decision, but probably with a very narrow, limited ruling on behalf of the governmental position.
Of course, if we're dealing with guns and the law, we're talking the Second Amendment. The once sleepy field of Second Amendment law got turned on its head back in 2008 when the Supremes decided District of Columbia v. Heller, an opinion that for the first time established that the Second Amendment protects an individual's right to bear arms rather than protecting some sort of collective right associated with militia service. The Supremes - and the lower federal courts - have spent the last 15 years trying to law out the contours of what that right actually protects. Most recently, the Court in 2022 decided New York State Rifle & Pistol Association v. Bruen, laying out what is effectively the new test of Second Amendment constitutionality:
This case, then, asks whether prohibitions on firearm possession as applied to individuals who have had a domestic violence restraining order entered against them meet the "historic tradition" test. The government lost in the 5th Circuit Court of Appeals, so Solicitor General Elizabeth Prelogar was up first, and she was ready to go. In her opening argument, the Solicitor General made the stakes very clear, forcefully arguing that "guns and domestic abuse are a deadly combination" and advocating the position that "Congress may disarm those who are not law-abiding, responsible citizens."
Justice Thomas, who generally asks the first question these days, immediately seized on this to try to establish that the government was using an overbroad, amorphous classification, directly asking what "law-abiding and responsible" means. This exchange allowed Prelogar to establish that there are essentially two prongs under which the government could disarm individuals in relation to domestic abuse restraining orders - the "law-abiding" prong which allows the removal of guns from anyone with a felony conviction; and the "responsible" prong. Under questioning from numerous Justices, Prelogar essentially conceded the point that "responsible" means "dangerous," but that the term "responsible" tracks how the Supreme Court has talked about this issue in the past, and more closely tracks the realities of the situation. After all, someone who is mentally ill might be "dangerous" in the sense that they could potentially represent a greater risk of harm to themselves or others with a firearm depending on the nature of their illness, but they wouldn't be culpable. They aren't dangerous in the sense that you would normally classify someone as dangerous - there is just a heightened risk that they could become dangerous in the wrong situation. As a result, the government argues that the term "responsible" more accurately reflects the classifications being used in the enforcement of the statute.
I was particularly taken with how the Solicitor General handled the question of whether this classification meets the historical tradition of firearm regulation, as is required by the Bruen decision. While there are not analogous domestic violence laws in the Founding era, the SG argued that to properly apply Bruen you don't need a specific regulation that is directly on point - the decision itself said that wasn't necessary. What you do need is evidence that there was a principle that you can consistently apply, and this is where "dangerousness" comes in. It has always been an accepted tenet of firearms regulation in the United States that dangerous individuals could be denied access to guns, provided due process protections were met. The same applies to individuals who have been found - after appropriate due notice is provided - to be a domestic abuse threat. The underlying principle - not the specific regulation - is what the government says the Court should be looking at in determining whether a restriction that implicates the Second Amendment is constitutional, and this provision clearly meets that test.
Justice Jackson raised perhaps the best question in the entire argument, and did so repeatedly in trying to establish the vacuousness of the "historic tradition" test from Bruen. She pointed out quite clearly that 200+ years ago in the Founding Era, there really was no such thing as domestic abuse legislation (Justice Kagan touched on this as well but not nearly to the level or with the precision of Justice Jackson). How, then, could you expect to look at the history and tradition of firearm regulations for this question, unless you want to be stuck with the public policy decisions of 200+ years ago? While it is unlikely that conservative Justices will turn on a test that was just articulated a year ago and which follows their base instincts so closely, they may well be convinced by this line of argument to issue a more narrow provision that acknowledges the ability of Congress to address domestic abuse situations - perhaps even by adopting Solicitor General Prelogar's standard.
Meanwhile, the Respondent/Defendant's lawyer did not do a particularly good job in his argument. It was disjointed, contradictory, and his questions were often non-responsive to what he was being asked. At one point Justice Kagan even told him point blank that she believed he was evading answer questions because he knew how bad his argument's were and didn't want to acknowledge it to the Court That's a definite "ooof" if I've ever heard one!
Finally, a lot of the argument today was taken up with questions about the facial challenge that was being considered by the Court and a to what extent that changed the analysis from what the Court would do if there was an "as-applied" challenge. The answer is indeed that there is a difference, because for a facial challenge all the Court has to do is determine that there are some contexts where the statute is Constitutional. If they do so, that is the end of the story. The Respondent in this case repeatedly acknowledged that violent behavior could lead to appropriate sanctions, including the loss of one's powers to possess a firearm. While Justice Alito tried to take the argument away from this basis by delving into details that might be a challenge for the government, and counsel for the Respondent regularly pushed into questions about due process which were not relevant to the question presented, several Justices brought it back to the nature of the challenge, including Justices Gorsuch and Sotomayor who essentially blocked off Alito's line of questioning and reinforced that the detailed questions he was asking would be better left for a future case that centered on those issues.
While I think Justices Thomas and Alito - and probably Justice Roberts as well - are deeply sympathetic to the anti-regulation side on Second Amendment questions, I actually think the logical need for this law is strong enough that they'll all join the majority as long as the opinion at least gives lip serving to holding on to the "historic traditions of firearm regulation" test. Expect one of them to author this one as well. As a result, I'm looking for a 9-0 decision, but probably with a very narrow, limited ruling on behalf of the governmental position.