'The gun argument could lose': Expert predicts 'major loss' for 2A absolutists in SCOTUS

20 June 2024

Despite the Supreme Court of the United States (SCOTUS) having a 6-3 conservative majority, one legal expert is predicting a rare win for the liberal minority in a pending decision involving the right of domestic abusers to own firearms.

According to Yale Law professor Akhil Reed Amar, the conservative majority could split in the pending United States v. Rahimicase that has yet to be decided. In a Thursday interview on CNN, Amar said the differences that became apparent between Justices Amy Coney Barrett and Clarence Thomas in a case involving U.S. trademark law could manifest again in Rahimi.

In that case, the Court will be ruling on the question of whether individuals under domestic violence-related restraining orders should be able to purchase and own firearms. On one hand, Second Amendment absolutists argue that the federal statute preventing domestic abusers from having access to guns (18 U.S.C. § 922(g)(8)) is unconstitutional and should be struck. But opponents of that argument posit that Americans bound to restraining orders pose a danger to others, and that taking away their ability to own a firearm wouldn't violate the U.S. Constitution.

"[Barrett and Thomas are] both originalists. They were both there in the Dobbs example on originalist grounds, but our audience should not be shocked if ... actually, the gun argument loses," Amar said. "Which would be the first major loss for a Second Amendment argument in the Supreme Court."

Earlier this term, SCOTUS ruled against a t-shirt designer attempting to trademark the phrase "Trump Too Small." While Justices Barrett and Thomas were in agreement, Barrett called out Thomas by name in her concurring opinion, writing that he was incorrect in his interpretation of the federal trademark statute. Amar said if SCOTUS' majority were to split in Rahimi, it could mark a significant development in how two different blocs of conservatives have manifested.

"There are three big vases for the Second Amendment: One called Heller, by Justice [Antonin] Scalia; one called McDonald, by Justice [Samuel] Alito and one called Bruen by Justice Thomas. So three conservative Republicans, three wins for the Second Amendment," he continued. "This one could be from [Chief Justice John Roberts], and actually, the gun argument could lose. It's a case about guns for people who have a history of domestic abuse and violence against their life partners."

"And don't be shocked if, in that one, Thomas loses, he might be in dissent, and Barrett will be with the chief justice," he added.

The Rahimi case has yet to be decided, and a final ruling could come tomorrow or next week. Other cases the Court has yet to decide include former President Donald Trump's claim of absolute immunity from criminal prosecution for acts carried out while in office, and a January 6 rioter's challenge of criminal charges against him.

In the latter case — Fischer, Joseph W. v. United States — a participant in the January 6, 2021 siege of the U.S. Capitol is challenging the legality of the charge of corruptly obstructing a criminal proceeding. During oral arguments, justices appeared sympathetic to the plaintiff's arguments. Should they rule in his favor, it could mean that two of the four charges in Department of Justice special counsel Jack Smith' indictment of Trump in Washington, D.C. could be struck.

Watch Amar's segment below, or by clicking this link.

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