The U.S. Supreme Court will hear several gun cases this term that intersect with other areas of constitutional law that have been priorities for the court. From guns and the First Amendment to the constitutionality of state gun laws, the court is poised to deliver decisions with significant state impact.
Guns and Domestic Violence Protection Orders
The court has accepted several cases relating to the Second Amendment this year. Perhaps the most impactful of the group is United States v. Rahimi. At issue is “[w]hether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face.” The justices heard oral arguments on Nov. 7.
Zackey Rahimi assaulted his girlfriend, C.M., grabbing her wrist, knocking her to the ground, dragging her back to his car, and shoving her inside. C.M. fled the scene when Rahimi retrieved a gun to fire a shot after seeing a bystander. Rahimi called C.M. after the incident and threatened to shoot her if she told anyone about the assault.
A few months later, Texas issued a domestic violence restraining order against Rahimi. While that order was still effective, he became a suspect in a series of shootings. Upon searching Rahimi’s home, police found guns and ammunition. Rahimi pleaded guilty to violating a federal ban on the possession of a firearm while he was the subject of a domestic violence restraining order pursuant to 18 U.S.C. § 922(g)(8), a felony with significant prison time. The 5th U.S. Circuit Court of Appeals initially upheld his conviction. After the Supreme Court in New York State Rifle & Pistol Association Inc. v. Bruen struck down New York’s proper-cause requirement because it ran afoul of the 14th Amendment by violating law-abiding citizens’ Second Amendment rights, the 5th Circuit withdrew its former opinion and issued a new opinion vacating Rahimi’s conviction.
Under the Bruen standard, courts must determine whether “the Second Amendment’s plain text covers an individual’s conduct” (142 S.Ct. at 2129-30). If so, then the “Constitution presumptively protects that conduct,” and the government “must justify its regulation by demonstrating that it is consistent with the nation’s historical tradition of firearm regulation.” The 5th Circuit reasoned that Rahimi was still only a suspect in the additional shootings and the domestic violence restraining order was not a conviction, but rather an order pursuant to a civil proceeding. It determined that the federal statute impermissibly infringed upon Rahimi’s Second Amendment rights and that his conviction must be thrown out.
Rahimi argues that the federal statute metes out severe punishment against conduct expressly protected by the Second Amendment—the right to bear arms. He further argues that there is no tradition in the country’s history to remove firearms from individuals involved in a domestic violence incident. The government argues that no violation of the Second Amendment occurs when a court finds a person poses a credible threat of domestic violence and should therefore be temporarily prohibited from possessing firearms.
Twenty-five states, Washington, D.C., and the Northern Mariana Islands filed as amici in this case. They argue that the court should reverse the 5th Circuit’s ruling and reaffirm that states can and should be able to regulate firearm ownership by dangerous individuals pursuant to their interest in providing for the health, safety and welfare of their citizens. They further argue that a ruling for Rahimi would undermine the states’ public safety objective of protecting their citizens from domestic violence.
Gun Issues and the First Amendment
National Rifle Association v. Vullo will address whether Maria Vullo, a former superintendent of the New York state Department of Financial Services, violated the NRA’s First Amendment rights. After the Parkland, Fla., mass shooting, many companies chose to disassociate themselves with the NRA and NRA-endorsed insurance products. The department issued non-binding guidance memoranda to banks and insurance companies encouraging them to monitor their risks, including reputational risks that may arise from doing business with the NRA. The NRA claims that the guidance memos constituted regulatory threats that resulted in the NRA being dropped by its longstanding corporate insurance carrier. The 2nd U.S. Circuit Court of Appeals ruled in favor of Vullo and held that, while they cannot use their status to coerce people or other entities from refraining from protected speech, government officials have a duty to address issues of public concern. The 2nd Circuit then ruled that the NRA failed to show that Vullo had crossed a line between “attempts to convince and attempts to coerce.” This case could affect how state government employees in their professional capacity discuss controversial issues such as gun control.
Guns and the ‘Chevron Deference’
In Garland v. Cargill, a case from the 5th U.S. Circuit Court of Appeals, the court will determine the legality under federal law of bump stocks, gunstocks that make use of recoil to allow semi-automatic firearms to fire like automatics.
The case arises from the 2017 Las Vegas mass shooting in which the perpetrator used firearms modified with bump stocks to kill 61 people and wound over 400 more in 10 minutes. Under the Firearm Owners Protection Act of 1986, it is illegal to own a “machine gun,” but due to the ambiguity of the statute, there are conflicting views on whether semi-automatic firearms modified with bump stocks are covered by the ban. The Trump administration’s Department of Justice issued a final rule stating that bump stocks are covered by the machine gun ban. Under the so-called Chevron doctrine—the latitude federal judges give agencies over how to interpret a statute when a dispute arises—the court would be required to defer to the DOJ’s rule, but the court intends to reexamine Chevron this term. If Chevron is overruled, the court would have the ability to veto the rule and effectively legalize bump stocks.
There are currently two related cases pending certiorari: Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives; and Garland v. Hardin. Both concern the legality of bump stock devices. If the court grants review to either of these cases, they will likely be heard in tandem with Cargill.
Susan Frederick is NCSL’s senior federal affairs counsel.