Court loses no matter what on gun case

by Francis Wilkinson

The conservatives on the U.S. Supreme Court will have to choose between depravity and farce this term. It’s an awkward situation, with a high probability of disgrace either way, but they can’t say they didn’t ask for it.

Veteran court analysts Dahlia Lithwick and Mark Joseph Stern wrote that this term’s court docket is “an explosive brew of lawless fury aimed at the heart of modern American governance.” Fury certainly defines the case of United States v. Zackey Rahimi. The case is from the MAGA-dominated 5th Circuit Court of Appeals, which covers Mississippi, Louisiana and Texas. In its ruling, the court said authorities had no right to deprive Zackey Rahimi of his firearms on the grounds that he was under a domestic violence restraining order after having violently assaulted his girlfriend.

In 2019, Rahimi, of Arlington, Texas, threw his girlfriend to the ground before dragging her to his car, where he slammed her head against the dashboard. He later threatened to shoot her if she told anyone about the attack. The threat was credible; Rahimi had already fired his gun at a witness to the assault and later engaged in five shootings in and around Arlington over the course of a month. Yet Rahimi challenged his loss of firearms as a consequence of domestic violence. The 5th Circuit found in his favor.

The ruling is a practical endorsement of the power of men to control women through violence. But it didn’t emerge from the ether of misogyny that permeates MAGA. Instead, the 5th Circuit decision was a logical application of Justice Clarence Thomas’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which found that gun regulations can only be constitutional if they comport with historical analogues of gun laws at the first, and second, foundings, circa 1787 and 1868. As scholars pointed out when Bruen was handed down, there were no laws in either era requiring domestic abusers to surrender their firearms. Thus, the logical conclusion is that you can brutally beat your intimate partner and still keep your guns, the better to intimidate her after the blood dries.

Thomas’s Bruen opinion blatantly cherry-picked history, either ignoring the rich record of gun regulations across the nation or decreeing, based on the judicial doctrine of owning the libs, that select gun restrictions were inherently, more or less magically, less meaningful than other laws. In reality, the mishmash of conflicting state and local laws makes history treacherous ground for unambiguous stands either for or against gun rights. The historical record is complicated.

But Thomas, who began his Supreme Court career by perjuring himself before the Senate Judiciary Committee and has lately generated the most sordid Supreme Court scandal in generations, renting himself out to right-wing billionaires in return for luxury and cash, is not striving for purity. Like the high court’s embrace of Christian nationalism, its 21st century adventures in gun fanaticism have little to do with the Constitution (or history) and much to do with empowering extremist components of the Republican political coalition in their war against pluralism, democracy and modern civilization.

According to one study, domestic abusers who possess a gun are five times more likely to murder a partner. An average of 70 women are shot and killed by an intimate partner each month. Even more survive a shooting. More than 4.5 million women report having been threatened with a gun by an intimate partner.

Yet in gun world, women are expendable while firearms are precious. In an amicus brief to the Supreme Court, a coalition of gun-rights groups, including Gun Owners of America, bewail “the felony treatment the Government seeks to give to those who have committed no crimes, but merely possess firearms while suffering marital or family discord.”

Haven’t abusers suffered enough?

The gun groups also try their hand at the court’s history game, asserting in their brief that “the American Revolution was in large part precipitated by British gun control.” The revolutionaries produced an actual public document, the Declaration of Independence, which listed explicit complaints that precipitated their break with the Crown. “Gun control” wasn’t mentioned.

Of course, if manufactured history is just another shortcut to owning the libs, then the actual historical record — or Declaration or Constitution — hardly matters. Even so, it’s difficult to see how the court’s conservatives can work their way out of the Bruen bind without a bout of further shame. Either they stick with Bruen’s outlandish history guidelines, or they mumble away the ruling’s central logic. The former places the justices squarely on the side of depravity and violence. The latter suggests, hardly for the first time, that they are engaged in little more than blocking and tackling for Team Red.

Servicing a reactionary and degenerate political movement, one marked by increasingly violent rhetoric along with occasional bursts of actual violence, while still striving to uphold constitutional appearances is a difficult task. It’s harder still when three of the court’s conservative bloc accepted their nominations from the most wildly unfit and flagrantly corrupt president in history. Remarkably, the bloc’s two most embarrassing members, Thomas and Justice Samuel Alito, are not among the tainted Trump triumvirate.

Rahimi isn’t the only case likely to blast another hole in the tattered credibility of the Supreme Court. But like the gun violence that the court has so recklessly invited, it seems likely to do plenty of damage.

Francis Wilkinson is a Bloomberg Opinion columnist covering U.S. politics and policy.