Justice Brett Kavanaugh, who signaled in a concurring opinion in Bruen that he might be willing to uphold certain gun restrictions in future cases, also pointedly observed on Tuesday that domestic-violence protection orders are part of the federal background check process. “According to the government, under your argument, that system could no longer stop persons subject to those domestic violence protective orders from buying firearms,” he told Wright. While Wright disagreed, Kavanaugh did not appear to buy it. “So it’s possible the government’s correct in what it says?” he added after the lawyer’s explanation.
Prelogar, perhaps sensing that the justices were leaning in her direction, pointed to other troubling post-Bruen rulings in the lower courts in her rebuttal. Among them was a ruling by one court that invalidated the federal ban on gun ownership for people with felony convictions. “I think that those are clearly untenable results,” Prelogar argued. “They are profoundly destabilizing, and Bruen doesn’t require them. Once the court corrects the misinterpretation of Bruen, then I think the constitutional principle is clear. You can disarm dangerous persons. And under that principle, Section 922(g)(8) is an easy case.”
That the court took up the Rahimi case so quickly after it decided Bruen could be seen as a sign that the justices thought some clean-up was in order. The Supreme Court rarely takes the opportunity to revisit one of its landmark rulings so quickly, often preferring to let it percolate in the lower courts first. While oral arguments are an imperfect predictor of final outcomes, the justices gave no signs on Tuesday that they would let the post-Bruen fallout go on.