After Bruen: Interview Giffords Law Center’s Chief Counsel Adam Skaggs

Last year, Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association, Inc. v. Bruen made consistency with historic firearms legislation a test for today’s gun laws. In March, the Fifth Circuit made that ruling the basis for its decision in United States v. Rahimi – which says that barring someone under a domestic violence restraining order from having a gun violates their Second Amendment rights. 

Giffords Law Center, a Fund for a Safer Future grantee, joined more than a dozen gun violence and domestic violence prevention groups in an amicus brief advocating for the rejection of the Fifth Circuit’s Rahimi decision. We talked to Giffords Chief Counsel Adam Skaggs about why he thinks the Supreme Court will take the opportunity Rahimi offers to clarify Bruen – and why grounding today’s gun law in 200 year-old historical precedents is so dangerous.

The facts in United States v. Rahimi are pretty remarkable – can you walk us through them?

Rahimi, the defendant, was subject to a domestic violence restraining order, which made it illegal for him under federal law to possess a firearm. Despite that, he had a gun and was involved in a series of shootings and inappropriate uses of firearms. But he was arrested and prosecuted for illegal possession of a gun based on his disqualification as a result of the restraining order. 

He contested the charges, arguing that the Second Amendment protected his right to have a gun and that it was unconstitutional to prohibit someone from having a gun based on the domestic violence restraining order. That went up to the Fifth Circuit, which is the Court of Appeals that covers Texas, Louisiana, and Mississippi, and a three-judge panel said it was unconstitutional, that this law violated the Second Amendment. 

That’s obviously just dangerous as a matter of basic policy. To get a restraining order, you have to have a hearing with the opportunity to contest the idea that you’re a danger to your family, a child or partner — in this case it was his ex-girlfriend. And for the federal prohibition to kick in, you have to have had a hearing where you had an opportunity to contest the allegations. The judge found that he posed a threat, and issued the restraining order. 

This is not a categorical prohibition on guns for some group deemed to be a threat. This is about specific individuals based on specific conduct – tailoring a prohibition on gun possession to those specifically found to be dangerous. 

So this is a narrowly-tailored regulation, with substantial due process for the defendant. What was the Fifth Circuit’s rationale for striking it down?

They said they were applying this new methodology that the Supreme Court issued in a decision in a case last year called the New York State Rifle & Pistol Association v. Bruen. That was a case about New York standards for getting a permit to carry a concealed weapon. But in addition to striking down New York’s “proper cause” requirement for concealed carry, the majority opinion by Justice Thomas announced a new methodology for the Supreme Court hearing Second Amendment challenges.

In particular, the Court said going forward, when somebody files a Second Amendment challenge to a law, courts have to look to history and tradition – and they have to essentially throw out social science and statistics about whether a particular law reduces gun violence or saves lives. That doesn’t matter. The only thing that matters is whether there is a history of regulating guns in a particular way, in this case, prohibiting people subject to restraining orders from having guns. 

And in a very literal kind of analysis, the three judges on the Fifth Circuit said, well, you know, they didn’t have domestic violence laws in the 18th or 19th century. There was no hundreds-year-old tradition of taking guns away from domestic abusers, therefore they said this law cannot stand. 

Other courts looking at the same issue have said, well, it may be that they didn’t specifically have domestic violence restraining orders, but there were laws that disarmed people who were found to be or were assumed to be dangerous, not trustworthy enough to have firearms. This is a modern identification of a particular type of person that is a danger, but it’s consistent with other types of laws in history. But the Fifth Circuit says that because domestic violence prohibitions are a relatively new type of law, they’re no good. 

It’s bizarre. Usually courts hold government’s gotten it right when they’ve tailored it no more broadly than necessary. You want the solutions addressed as precisely as you can to the problems they seek to address as opposed to being overinclusive. But here, because they’re trying to be cute and, you know, distinguish this historical tradition – the government doesn’t get any credit for having crafted this much more precisely focused law. Indeed, the opposite is true. 

What’s next – and what’s at stake?

The Department of Justice has appealed the case up to the Supreme Court. I think it’s a very important case because the court’s either going to say, yeah, they got it right – we can only follow the laws that were passed multiple generations ago when Black people didn’t have the vote, women didn’t have the vote. Think about the idea of saying the only kinds of laws that are permissible today are the same kinds of laws that were passed by legislators that were elected only by land-owning white men. That’s a radical and horrible prospect. Or the Supreme Court can say, no, you got it wrong: Fifth Circuit, it may be true that they didn’t have domestic violence laws in 1791, but they had other laws that disarmed dangerous people. And therefore, this is consistent with that tradition of gun regulation and the domestic violence law is constitutional. 

It will also give the Court an opportunity to clarify for the lower courts exactly how to think about Second Amendment cases, exactly how they should perform this analysis and how they should analogize to historical precedent. The problem is when judges have to look to history and tradition, it’s susceptible to cherry-picking, and gives judges all the leeway in the world to reach the outcomes they want to reach. Historians will tell you that history often says contradictory things, teaches different lessons. That’s why we were weighing in on this issue before Bruen was decided saying it was a terrible idea. 

I think we’ll find out whether they’re going to take the case toward the end of June. I think they’re going to take the case and I think they’re going to reverse the Fifth Circuit. I think there are going to be five votes to uphold the domestic violence prohibition, to say this law is constitutional and the way you’re applying the history was wrong. I also am somewhat skeptical that they’ll be able to do that in a way that will bind the lower court judges to do it properly. But I’ve been wrong plenty of times in the past, so take that with as many grains of salt as are appropriate!

There’s another case that is being briefed in front of the Supreme Court right now, Cargill v. Garland, which has to do with the federal regulation regarding bump stocks. So we could, for the first time in recent memory, have two big gun cases in front of the Supreme Court next year.

Interview edited for length and clarity.