Justice Clarence Thomas, one of the Supreme Court’s leading conservatives, found himself standing alone when the court handed down a major gun decision Friday.
Thomas broke with his eight colleagues, who all voted to uphold a federal gun ban for people under domestic violence restraining orders, a decision that handed a win to the Biden administration and gun control groups.
It’s a striking change for Thomas, who authored the Supreme Court’s expanded Second Amendment test two years ago, known as Bruen, that was at the center of Friday’s case.
That test requires gun regulations to fit within the nation’s historical tradition of firearm regulation. Chief Justice John Roberts, joined by seven of his colleagues, said Friday the domestic abuser gun ban could be compared to a tradition of disarming people who pose a credible safety threat.
“The question is whether the Government can strip the Second Amendment right of anyone subject to a protective order — even if he has never been accused or convicted of a crime. It cannot,” Thomas responded in his 32-page dissent, nearly twice as long as Roberts’s majority opinion.
“The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence,” he continued, referring to the statute at issue, adding that he believed the government had not “borne its burden.”
President Biden’s Justice Department defended the law by pointing to surety and affray laws.
Thomas wrote that “neither is a compelling historical analogue,” insisting the majority didn’t reckon with “vital differences” when it reached the opposite conclusion.
In a separate concurring opinion authored by Justice Sonia Sotomayor, she called Thomas’s opinion “the strictest possible interpretation of Bruen.”
“It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal,” Sotomayor wrote, joined by fellow liberal Justice Elena Kagan.
The case follows several landmark Supreme Court decisions that expanded gun rights over the past 15 years, with the dispute marking the justices’ first plenary Second Amendment case since it established the Bruen test.
A Texas man’s challenge of his conviction under the domestic violence gun law had forced the justices to consider the limits of their recent expansion and clarify the test for lower courts that have voiced confusion.
That man, Zackey Rahimi, was placed under a restraining order after he dragged his girlfriend, with whom he has a child, in a parking lot and attempted to shoot a witness. Rahimi later participated in a series of five shootings, court filings show, and was indicted on the gun charge after police searched his home and found a rifle and a pistol.
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