Consider This from NPR - Gun Bans for Domestic Abusers Face a Test at the Supreme Court

Episode Date: November 8, 2023

At the Supreme Court on Tuesday, justices seemed inclined to uphold a federal law that bans anyone covered by a domestic violence court order from having a gun. But if they do that, the decision will likely be a narrow one, leaving many questions about the future of gun regulations unanswered.NPR legal affairs correspondent Nina Totenberg reports. A note to listeners, there is a graphic description of violence in this episode. Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Before we jump in, a note of caution for listeners. You're going to hear a graphic description of violence in today's episode. All of a sudden, there were three booms, and he shot three times through the door. That's Kate Ranta. She spoke to NPR's legal affairs correspondent, Nina Totenberg, about the night in 2012 that her husband, Tom Maffei, shot her in the chest and hand, almost killing her. Then he went over to my dad. And I just heard, boom. And I heard my dad grunt. I thought he killed him.

I managed to crawl to the little dining room table I had. My son was standing on the other side of it. And my ex came over and knelt down next to William. And he had the gun and he was like pointing it and like taunting me with it. And all of a sudden my son yelled, don't do it, daddy, don't shoot mommy. And it got real quiet. Ranta, her father, and her son all survived that horrific night. Maffei was eventually sentenced to 60 years in prison for attempted first-degree murder.

Eleven years later, Ranta has now filed a brief in a major gun rights case before the Supreme Court that tests the constitutionality of an important federal firearms law. The law makes it a felony for anybody subject to a domestic violence court order to possess a gun. But last year, the Supreme Court ruled that in order to be constitutional, a gun law has to be somehow comparable to a law that existed at the nation's founding in the late 1700s. Former Deputy Solicitor General Michael Drebin says there is a good reason there's no precise analog from the 1700s. At the founding, domestic violence was not considered to be a serious problem that warranted legal intervention. Women were viewed more or less as property of

their husbands. The second feature of change dynamics is that firearms are now the weapon of choice in domestic violence conflicts in a way that was not true at the founding. Drieben says that the court has always adjusted its doctrine to fit modern times. There were no phones or tracking devices at the founding, for example, but the court still outlawed wire taps and GPS tracking devices without a warrant. Today, the information about guns and domestic violence is shocking. In 2019, 70 women were shot and killed by a domestic partner each month. Nearly one million women have been shot at. And domestic assaults that involve guns are 11 times more likely to cause death than assaults without guns.

Consider this. If the federal law falls, so would similar laws in most states and potentially other important gun laws. But the court's conservative majority may look for a narrow way to uphold the law, while also signaling its support for Americans to own guns with few restrictions. From NPR, I'm Juana Summers. It's Tuesday, November 7th. It's Consider This from NPR. At the Supreme Court on Tuesday, the justices seemed inclined to uphold a federal law that bans anyone covered by a domestic violence court order from having a gun. But if they do that, the decision likely will be a narrow one, leaving many questions about the future of gun regulations unanswered. NPR legal affairs correspondent Nita Totenberg reports. From the get-go today, the justices were wrestling with the consequences of their sweeping decision last year, declaring that in order for a gun law to be constitutional,

it has to be analogous to a law that existed at the nation's founding in the late 1700s. The question today was how precise does that analog have to be? Solicitor General Elizabeth Prelogger, representing the government, contended that under the court's most recent decisions, Congress may still disarm those who are not law-abiding, responsible citizens. She said that there's no historical evidence that the Second Amendment right to bear arms was originally understood to prevent legislatures from disarming dangerous individuals. But as several justices noted, people do all kinds of irresponsible

things—driving over the speed limit, putting the trash out on the wrong day—but nobody would suggest that they lose their constitutional rights for that. Pressed by Chief Justice Roberts, Prelogar agreed that the word responsible is something of a placeholder for dangerousness. Justice Kavanaugh. No daylight at all then between not responsible and dangerous? Yes, our understanding of what history and tradition reflect is those whose possession of firearms presents an unusual danger beyond the ordinary citizen. Most of the court's conservatives seem to accept that proposition, with only Justices Alito and Thomas remaining skeptical.

Thomas was the author of last year's broad decision, a decision so sweeping and unspecific that the lower courts have interpreted it in dramatically different ways, as they forage for historical analogs. The court's liberals remained largely silent during the first half of the argument, except for Justice Katonji Brown Jackson, who clearly would have liked to revisit the court's 2022 decision. What's the point of going to the founding era? Challenging the federal law in this case is defendant Zaki Rahimi. A Texas judge granted

a domestic violence court order that stripped Rahimi of his license to carry a gun after he assaulted his girlfriend in a parking lot and then fired a gun at a bystander who saw the assault. After he continued firing guns repeatedly in public, police searched his residence, finding multiple guns, magazines, and ammunition. He was sentenced to six years for violating the federal law banning guns for those under domestic violence court orders, but the Fifth Circuit Court of Appeals, citing the Supreme Court's 2022 gun decision, ruled that the federal law deprived Rahimi of his Second Amendment right to bear arms. Today, Rahimi's lawyer, federal public defender Matthew Wright, struggled to defend that decision, telling the justices there is no law from the

founding era that is analogous to this one. There's no ban. There's no history of bans. They don't exist. Justice Kagan asked if the presence of a similar ban at the time of the founding is essential after the court's decision last year in the Bruin case. If we don't find that similar ban, we say that the government has no right to do anything. That's largely what Bruin says. Lawyer Wright also maintained that those accused of domestic violence have few protections in court prior to being slapped with a ban on guns. Justice Barrett wasn't buying that. She did submit a sworn affidavit giving quite a lot of detail about the various threats, right? So it's not like he just showed up and the judge

said credible finding of violence. Chief Justice Roberts was even more direct. You don't have any doubt that your client's a dangerous person, do you? Your Honor, I would want to know what dangerous person means. Well, I mean, someone who's shooting, you know, at people. That's a good start. That's fair. Justice Kagan followed up. Do you think that the Congress can disarm people who are mentally ill,

who have been committed to mental institutions? So I think maybe is the answer to this. I'll tell you the honest truth, Mr. Wright. I feel like you're running away from your argument, you know, because the implications of your argument are just so untenable that you have to say, no, that's not really my argument. Indeed, the court's decision in the Rahimi case will have ripple effects. It may make lower courts more hesitant to strike down laws aimed at preventing dangerous people from having guns. But as several justices observed today, this is the easy case. The harder ones lie ahead.

Among them, federal and state laws that bar convicted felons, including those convicted of nonviolent crimes, from having guns. That was NPR's Nina Totenberg. It's Consider This from NPR. I'm Juana Somers.