Second Amendment Domestic Violence Case Awash with Amicus Briefs

As one of its final acts of the 2022/23 term last June, the United States Supreme Court granted certiorari on a case at the intersection of domestic violence and the right to bear arms enumerated in the Second Amendment. On November 7, 2023, oral argument will be presented to the SCOTUS.

Here is a link to our post introducing this seminal case. We believe United States -v- Rahimi is significant to the extent that it juxtaposes one of the clearly enumerated rights set forth in the Bill of Rights with the rising epidemic of gun violence that grips our nation; especially gun violence in domestic relationships.

The issue in the case is whether someone under a civil restraining order is disqualified to exercise their right to bear firearms under the Second Amendment. 18 U.S.C. § 922(g)(8) bars a person subject to a domestic violence restraining order from possessing a gun.

The United States is appealing the ruling of a federal judge sitting in Texas that facially invalidated a federal law prohibiting possession of a firearm by a person subject to a domestic violence restraining order. Solicitor General Elizabeth B. Prelogar asserted in the US Justice Department's petition for certiorari that "firearms and domestic strife are a potentially deadly combination".

The Solicitor General pointed to the million plus acts of domestic violence that occur annually in the United States. She argued that the ubiquitous nature of guns in the US increases the chances that violent encounters will frequently escalate to homicide. She borrowed a brusque quote from a 2014 SCOTUS decision: "All too often, the only difference between a battered woman and a dead woman is the presence of a gun."

You can tell this will be a seminal case by the number of amicus briefs filed already in the matter. An amicus curiae brief is best defined as:

Amicus curiae ("friend of the court") briefs are briefs written by individuals or groups who are not directly involved in a legal case, but have expertise or insight to offer a court to assist in making its decision.

To date, 38 amicus briefs have been lodged with the SCOTUS and counting. Some of the more notable filers include: Michigan's own Representative Debbie Dingell [D-Mich]; the American Medical Association; the US Conference of Catholic Bishops; California Governor Gavin Newsom; the ACLU; US Senator Amy Klobuchar [D-MN]; US Senator Richard Blumenthal [D-CN], along with over 169 other United States Senators and Representatives; and dozens of public interest groups across the political spectrum.

Twenty three states, including Michigan and the District of Columbia, have joined in filing an amicus brief. In their combined amicus brief, the states assert that they all have a subjeantial interest in the health, safety, and welfare of their communities, which includes protecting their respective citizens from the harmful effects of domestic violence.

For their part, Respondent Zackey Rahimi's lawyers, a collection of federal public defenders in Texas and Oklahoma, conduct a tour de force of gun legislation from the nation's "founding generation", its early Congresses, all the way through last year's SCOTUS decision in the New York State Rifle & Pistol Assn -v- Bruen case [holding New York's "proper cause" requirement to obtain a concealed pistol license restricted ordinary citizens concerned with their own self-defense from exercising their rights under the Second Amendment].

The main thrust of Rahimi's argument is that the federal law proscribing possession of a firearm while under certain types of protective orders is patently violative of the Second Amendment right to bear arms; and that the petition is historically premature to the extent that the SCOTUS's Bruen decision has not sufficiently "percolated" with the lower appellate courts.

The merits briefs have not yet been filed. So far, the filings of the parties to the suit have only dealt with whether the SCOTUS should even hear the dispute. With oral argument only a few weeks away, the merits briefs will be filed shortly.

Anything involving the Second Amendment gets Americans' attention. Elected politicians, government bodies, public interest groups all want their say on this issue; especially in this case. It will be interesting to see how the recently conservative-leaning SCOTUS will resolve this matter.

We here at Clarkston Legal have our calendars marked for the November 7th oral argument. Following the argument phase of the case, the SCOTUS will likely issue an opinion at some point prior to the conclusion of its term in June 2024.

Although this case arose from the Lone Star state, its resoultion will have implications here in Michigan and all other states. Stay tuned and we will keep you posted on this important SCOTUS decision.