Advocates: Next SCOTUS gun rights decision will clarify N.Y. laws

BY KATE LISA NEW YORK STATE
PUBLISHED 7:11 PM ET JUL. 10, 2023

Advocates on both sides of the gun rights debate are preparing for the next battle in interpreting Second Amendment rights and its potential impact on state laws.

Justices on the U.S. Supreme Court will hear arguments this fall to decide if a 1994 federal statute prohibiting anyone actively subject to a domestic violence restraining order from having firearms is constitutional. It comes after a Fifth U.S. Circuit Court of Appeals panel threw out the conviction of Texas man Zackey Rahimi, who was convicted of possessing firearms while under such a restraining order.

Judges cited last year's Supreme Court ruling and decided though Rahimi discharged his weapon in public five times in two months while subject to the order, it did not invalidate his constitutional right to bear arms under the Second Amendment. The court argued no similar laws in U.S. history confiscated guns from people who were violent against their spouse or partner.

"If you were married to a man and he abused you, you had every right to beat your wife, as long as you didn't leave permanent marks," said SUNY Cortland political science professor Robert Spitzer. "That was the legal standard 200 years ago."

Spitzer has written five books on gun control and is an expert on national gun policy; he's skeptical the Supreme Court will completely strike down the nearly 30-year-old federal statute.

"I think the country could not tolerate such a decision," he added. "I think the court would have a hard time coming up with five votes on behalf of that decision."

Throughout the 17th, 18th and 19th centuries, colonies and U.S. states had laws where a person found hunting in the wrong place at the wrong time could have their firearms taken away, Spitzer said.

"So would that provide a valid historical analogue to modern domestic violence laws? To me, the answer would clearly be yes," he said.

Spitzer added he'll be surprised if the court upholds the domestic violence law is unconstitutional under the Second Amendment with the modernized national view of abuse — pointing to several studies linking more violent domestic abuse outcomes to gun ownership.

Abusers with access to firearms are five times more likely to kill their partners, according to a control study published in the American Journal of Public Health.

About 4.5 million American women alive today, or 1 in 27, have had an intimate partner threaten them with a gun, according to an article in the National Library of Medicine.

"Time and time again, evidence shows that when a domestic abuser has access to a gun, the likelihood that their intimate partner will end up being shot and killed is extremely high," said Rebecca Fischer, executive director of New Yorkers Against Gun Violence. "However, the courts are, you know, wondering whether or not they can actually take that evidence into account."

Advocates like Fischer who fight for stricter gun control laws in the state say the highest court's decision will be pivotal in future analysis of gun laws across the nation. Last year, the Supreme Court overhauled a long-standing New York law in New York State Rifle & Pistol Association, Inc. v. Bruen and ruled Americans have the right to carry a firearm in public for self-defense. State lawmakers returned days later to strengthen New York's Red Flag Laws, which allow police to seize firearms of someone who is posing a danger to themselves or other people.

Lawmakers last June also swiftly updated the state's concealed carry law limiting the public places where guns could be taken, and stricter requirements to obtain a concealed carry permit.

"The decision will not only have implications for individuals who are threatened by intimate partners and have suffered from domestic abuse, but it also could have implications on how courts analyze gun laws and whether or not gun laws across the country are still considered constitutional under the Second Amendment," Fischer said.

SCOTUS' next gun rights decision, not expected until late spring 2024, will likely reinvigorate challenges to the state's emboldended Red Flag Law. A federal lawsuit is pending against the updated concealed carry law.

Advocates fighting to protect Second Amendment rights, like state Rifle & Pistol Association Executive Director Tom King, say the stricter law can lead to the confiscation of a person's firearms without legal due process.

"Your firearms are taken away without ever having gone to a judge — there's no search warrants, no nothing," King said Monday. "They come in, and they take your firearms. It's no different than if somebody came in and they said, 'We heard you were speeding,' and they come in and take your car away. I mean, where does it end?"

King is hopeful about the Supreme Court's review of the 1994 federal domestic violence statute, arguing the current rule is too broad. He says each person's case should be reviewed separately instead of the way the federal domestic violence law paints every person with the same brush.

"I think that each case has to be looked at individually," he said. "And I think that's what the Supreme Court is doing right now."

Advocates on both sides of the discussion agree on a single point: The Supreme Court's decision will help clarify last year's gun rights ruling, and define the new standards for judges across the nation when deciding on legal challenges to existing firearm restrictions.

"This new decision will provide some clarity on how to analyze gun laws that, right now, courts are all over the map in terms of how to interpret Bruen," Fischer said. "...If they find a law, if they utilize a law that is comparable to the federal laws that qualifies is historical and fits within the new framework of analysis, then that will give courts going forward more guidance on what type of historical laws should be applied to uphold gun laws in the future."

King is confident law-abiding gun owners in the state will be ready to comply with the court's final decision — regardless of the outcome.

"They are the highest court in the land," he said. "Whatever decision the Supreme Court makes, I will live with and I'm sure the gun owners will live with, unlike Gov. Kathy Hochul, who couldn't live with the Bruen decision."

Lawmakers passed a series of bills before the end of session groups like New Yorkers Against Gun Violence pushed hard for, including to expand the state's victims' compensation law, the Grieving Families Act and a measure to increase Medicaid reimbursement for violence prevention programs.

Hochul has until the end of the year to decide to sign them into law. She has not shared her position on the legislation or if she intends to sign the measures, Fischer said.