In a case with ramifications for Wisconsin law, SCOTUS has agreed to determine the extent of its recent decision in Bruen, which mandated a new form of historical analysis for firearm restrictions impinging on citizens’ 2nd Amendment right to possess guns for self-defense.
Whether 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.
In 2022, Justice Thomas authored the opinion of the Court in Bruen, in which, thanks to a dominant conservative super-majority seemingly able to rewrite US Constitutional law on the fly, he was finally able to impose his unique form of originalism on American gun regulations. Under Thomas’ reading of the Second Amendment, firearm possession by individual citizens for the purpose of self-defense is presumptively lawful. In order to justify any government regulation of that right, the government must demonstrate that the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” The practical upshot is that government lawyers now need to search through laws in existence at the time of the nation’s founding in order to identify sufficient historical analogs which will permit them to enforce laws in the year 2023. To say that this is a controversial, some would say objectively bad, rule is an understatement.
Enter Rahimi, who is the subject of a Texas domestic violence restraining order. Following some other very bad behavior, police ultimately linked him to the possession of a gun, contrary to 18 U.S.C. 922(g)(8), which makes it a violation of federal law for individuals subject to certain kinds of domestic violence restraining orders to possess a firearm. The Fifth Circuit Court of Appeals ultimately concluded that this statute was inconsistent with Bruen and hence unconstitutional. Now SCOTUS will have a second opportunity to address the Bruen test and determine whether Congress in fact has the power to take away guns from individuals who a court has concluded pose a “credible threat” to partners who have already suffered domestic violence from that same person.
This case should be closely watched by Wisconsin practitioners, as it will have an obvious impact on Wisconsin citizens who are subject to domestic abuse restraining orders. In addition, Wisconsin also has its own procedure for confiscating firearms from those subject to domestic abuse restraining orders with criminal punishment available for those who defy such orders. § 813.1285(8)
This case creates all kinds of interesting tensions for gun rights advocates; one only needs to do a quick Google search to see how incredibly divisive and controversial the Fifth Circuit’s decision is. Yet, Justice Thomas and the other members of the conservative majority have so far appeared unconcerned with public opinion. This case is therefore a good test to see how committed the Court is “really” committed to its strict formulation of the Bruen test or whether some moderating influences will win out after all.