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February 2, 2023
Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
A Fifth Circuit panel handed down today another big post-Bruen ruling declaring that the Second Amendment renders unconstitutional a federal prohibition on firearm possession for certain disfavored individuals. The ruling today in US v. Rahimi, No. 21-11001 (5th Cir. Feb. 2, 2023) (available here), gets started this way:
The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.
Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022). Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen. The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one. Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.
Here are a few of many notable passages from the opinion:
Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581. Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal....
The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id. As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.
Some (of many) prior recent related posts:
- By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements
- Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?
- Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement
- District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
- Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
- Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
- Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim
- New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
- Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
- Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen
- En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen
UPDATE: This AP article about the Rahimi ruling provides a bit more context concerning the decision and also includes an official reaction from US Attorney General:
The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm. Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”
Seeking "further review," I suspect, will involve the Department of Justice first requesting en banc consideration of this panel decision in the Fifth Circuit. If that does not happen, I would expect DOJ would then seek Supreme Court review. Interestingly, were SCOTUS to take up this case (or any similar ones) anytime in 2023, we could reasonably expect another major Second Amendment ruling in the run up to the 2024 election.
February 2, 2023 at 11:57 PM | Permalink
Comments
How dare Congress infringe my constitutional right to possess what I need to shoot my spouse in the event she should recover from the last beating I gave her.
Posted by: anon | Feb 3, 2023 12:00:15 PM
Convict, then take away rights all you want.
Posted by: federalist | Feb 3, 2023 12:15:24 PM
This just goes to show how stupid Merrick Garland is. What an ass.
Posted by: federalist | Feb 3, 2023 5:39:51 PM
federalist calls Trump a "great president" and calls Garland an ass. Disconnect here? In any event, federalist, congrats on winning the chutpah prize of the new year!
Posted by: anon | Feb 3, 2023 6:50:20 PM
federalist --
Garland's just pitching to his gun control base. I don't think AGs should be in the "pitching to the base" business, but it's been a goodly while since I was at DOJ.
Posted by: Bill Otis | Feb 3, 2023 7:43:49 PM
Bill, are you saying the Justice Department should not seek further review of the Fifth Circuit’s panel decision here? I think in the past you have criticized DOJ when it has failed to seek to defend the constitutionality of a federal statute.
Also, Bill, do you agree with this panel ruling that § 922(g)(8) is unconstitutional?
Posted by: Doug B | Feb 3, 2023 8:24:48 PM
Doug --
"Bill, are you saying the Justice Department should not seek further review of the Fifth Circuit’s panel decision here?"
I'm saying what I wrote. Rinse and repeat.
"I think in the past you have criticized DOJ when it has failed to seek to defend the constitutionality of a federal statute."
Two things can be true at the same time: Garland is pitching to the Democratic base, and DOJ should seek further review. To answer you directly: I'm pretty sure that I would seek further review, yes. Whether I would expect to win is a different and more interesting question.
"Also, Bill, do you agree with this panel ruling that § 922(g)(8) is unconstitutional?"
I think there are plausible arguments on both sides. My instinct, like federalist's, is that the defendant will win, because a civil restraint order stands on a different footing from a criminal conviction.
Posted by: Bill Otis | Feb 3, 2023 10:15:47 PM
The Fifth Circuit decision in this case is simply stunning. If a domestic violence restraining order isn't evidence of a clear and present danger, what is?
It is certainly more compelling than a generic non-violent felony conviction.
Apparently all common sense has left the room.
Posted by: ohwilleke | Feb 3, 2023 10:29:13 PM
How do you see AG Garland as "pitching to the Democratic base" here, Bill? He says he views the statute as constitutional, and he says DOJ will seek further review. Seems like a statement reflecting exactly what you have before said was what DOJ should do consistent with the rule of law. Would you say anything different if you were AG in response to this ruling?
Posted by: Doug B. | Feb 3, 2023 10:38:04 PM
Doug --
"Would you say anything different if you were AG in response to this ruling?"
I wouldn't SAY anything at all to the press. I would act as I always did -- I would do my talking in court.
If this case were about some national emergency, then I could see a press release. But it's no such thing, meaning that the real reason for talking is to placate the base.
P.S. That the base has three members on SCOTUS is the main reason I think this case will be close when it gets there. The SG should make her pitch to Roberts and Kavanaugh, who are the most likely among the conservatives to be sympathetic to a statute like this.
Posted by: Bill Otis | Feb 4, 2023 12:09:01 AM
Fair point that he does not need a press release, though arguably members of Congress on both sides of the aisle may want to know ASAP if AG Garland plans to accept or appeal this ruling. You recognize that some SCOTUS conservatives are likely to be sympathetic to a statute like this --- I think Justice Alito may be keen on it, too, and Justice Barrett's 7th Circuit work might allow her to go either way --- and I suspect the same is true for some GOP members of Congress.
Posted by: Doug B. | Feb 4, 2023 6:32:07 AM
A similar Bruen ruling just handed down.
https://www.foxnews.com/us/marijuana-users-constitutional-right-own-firearms-judge-rules
Posted by: TarlsQtr | Feb 5, 2023 5:38:23 PM
FYI- I do not think they can seek en banc review.
The mandate was already issued so (I believe) they are deprived of jurisdiction. But it's been a minute since I researched that one.
Posted by: Zachary Newland | Feb 6, 2023 10:15:15 AM
Zachary: My understanding is that the federal rules generally provide "14 days after entry of judgment" for filing motion for rehearing (including en banc rehearings). And even without a motion, most circuits usual have a process for judges to request en banc rehearing. But the SG might have reasons to want to go straight to SCOTUS. We will see.
Posted by: Doug B | Feb 6, 2023 10:46:52 AM
Doug, the law may be constitutional, but Garland's mailing it in. Text and tradition--um no.
Posted by: federalist | Feb 6, 2023 12:40:05 PM
"The Fifth Circuit decision in this case is simply stunning. If a domestic violence restraining order isn't evidence of a clear and present danger, what is?
It is certainly more compelling than a generic non-violent felony conviction.
Apparently all common sense has left the room."
This is sad. People have rights. It really is that simple.
Posted by: federalist | Feb 6, 2023 12:41:36 PM
anon:
“Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm. Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”
This is just dumb. Even a hack like Merrick Garland understands that a constitutional right cannot be taken away by a collateral court order, not a conviction.
Posted by: federalist | Feb 6, 2023 12:44:14 PM
federalist: Don't gag orders on lawyers in civil cases take away free speech? Isn't civil forfeiture a kind of taking of property without just compensation? (Heck, a lot of sex offender registries and residency restrictions have been deemed "civil," and they take away a host of constitutional rights, though I know that is by statute and often (but not always) after a certain kind of criminal adjudication).
I do almost no civil work, but the statement that a constitutional right cannot be taken away by a collateral court order strikes me as a bit broad. Am I missing something?
Posted by: Doug B | Feb 6, 2023 2:10:06 PM
Maybe a bit broad, but the problem is clear . . . . I actually think that there a host of problems with the sex offender registries etc. Gag orders on lawyers are ok as lawyers, as a condition of their license, become officers of the court. Gag orders on criminal defendants are a huge problem. Recall that the judge in the Roger Stone case got in a lather over Stone criticizing her (and no, he wasn't putting her in crosshairs) and gave him a gag order---were there any justice in the world, she would be answerable to him for that violation.
There's a liberty interest in possessing a firearm--a (often ex parte) restraining order doesn't come close to satisfying due process concerns.
Posted by: federalist | Feb 6, 2023 3:15:10 PM
federalist writes, "This just goes to show how stupid Merrick Garland is. What an ass."
federalist, do you know that Garland was a Presidential Scholar and National Merit Scholar. Were you one of these? Still think he is "stupid." Do you know that while at Harvard college, he wrote his 235-page honors thesis on industrial mergers in Britain in the 1960s. What did you write at Harvard or anywhere else? Still think he's "stupid."
Do you Know that he graduated from Harvard in 1974 with an A.B. summa cum laude and was elected to Phi Beta Kappa. Did you graduate from Harvard or anywhere else summa cum laude? Were you elected to Phi Beta Kappa? Still think he's stupid?
Do you know he attended Harvard Law School, where he was articles editor of the Harvard Law Review. Were you elected articles editor of any law review? Stupid? Garland graduated from Harvard Law in 1977 magna cum laude. did you graduate from Harvard or anywhere else magna cum laude? Stupid?
Did you know that Garland spent two years as a judicial law clerk, first for Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit (New York City) from 1977 to 1978 and then for Justice William J. Brennan Jr. of the U.S. Supreme Court from 1978 to 1979. Did you clerk for a federal appeals judge or Supreme Court Justice? Stupid?
Did you know that after his clerkships, Garland spent two years as a special assistant to U.S. Attorney General Benjamin Civiletti. Were you ever a special assistant to the Attorney General?
Did you know that Garland wrote an 87-page Harvard Law Review article describing the way courts use a heightened "hard look" standard of review and scope of review when an agency chooses deregulation, with increasing focus on the fidelity of the agencies' actions to congressional intent. Did you write a Harvard Law Review article or any similar publication? He also published an article in the Yale Law Journal urging a broader application of antitrust immunity to state and local governments. Did you write such an article?
Did you know that in 1989 1989 Garland became an Assistant United States Attorney in the U.S. Attorney's Office for the District of Columbia and that as a line prosecutor, Garland represented the government in criminal cases ranging from drug trafficking to complex public corruption matters? Did you have similar employment? Did you know that ] Garland was one of the three principal prosecutors who handled the investigation into Washington, D.C. mayor Marion Barry's possession of cocaine. Did you handle such a case? ]. Still think he's an "ass."
Did you know that in 1993, Garland joined the new Clinton administration as deputy assistant attorney general in the Criminal Division of the United States Department of Justice, and that he then became the principal associate deputy attorney general? Did yo know that in that role his responsibilities included the supervision of high-profile domestic-terrorism cases, including the Oklahoma City bombing, Ted Kaczynski (also known as the "Unabomber"), and the Atlanta Olympics bombings.? Did you have similar responsibilities? Still think he's stupid or an ass?
Did you know that Garland represented the government at the preliminary hearings of the two main defendants, Timothy McVeigh and Terry Nichols, and did you know that he won praise for his work on the case from the Republican Governor of Oklahoma, Frank Keating.
Have you won similar praise for prosecutions you've handled?
In sum, whatever folks may think of Garland, "stupid" and "ass" are not applicable epithets.
No doubt you'll have a snarky-smart ass response, but what else can we expect from someone who thinks Trump was a "great president."
Posted by: anon3 | Feb 6, 2023 9:48:02 PM
anon3, you neglected to mention that Garland was on the D.C Circuit Court of Appeals for more than 20 years (I think). You could ask federalist whether he has ever been a judge and in which jurisdiction.
Posted by: Mary | Feb 7, 2023 9:24:20 AM
From an article I was reading, "The Constitution was written at a time in which women existed under the legal control of their husbands or fathers, could not vote, could rarely own property and were excluded from the Constitution itself. Those who were enslaved in America were deemed legally less than persons and also excluded from the Constitution’s rights and protections.
Oh, and at the time the Constitution was written, it was legal to beat your wife. It was only in 1871 that two states made it illegal.
That alone should demonstrate how thoroughly absurd this standard is, and how deranged “originalist” legal theories have become. Domestic violence was also an issue in the 1780s. But because women were not respected or considered full citizens at the time the Constitution was penned and for many decades after, the men in charge (including men who owned and raped enslaved women) didn’t pass laws restricting abusive men from gun ownership — or restricting abusive men from just about anything.
Is it really possible that the Founders believed 18th century norms should apply more than 200 years later and that future lawmakers should be constrained by centuries-old legislation (or lack thereof)? In the 1780s, it would have been nearly impossible to imagine that women might have the rights they do today and that gender roles would be so transformed. It would have also been difficult to imagine the kind of weaponry now available for purchase in the United States, and the broad devastation that it would cause.
Yet here we are, being held hostage to truly reactionary interpretations of American law and history, one that does indeed set women back centuries. And we have a right-wing 5th Circuit, and a reactionary and conservative Supreme Court, to blame."
Posted by: Michael R. Levine | Feb 7, 2023 10:22:05 AM
I can match Merrick Garland's accomplishments in my legal career (for example, I graduated summa), but I choose to look at workproduct not resumes. The bottom line is that Garland's comment regarding the Fifth Circuit's handiwork appears to be very very ill-informed. First of all, domestic violence orders can be the product of ex parte proceedings. Anyone with a passing knowledge of rights in the Bill of Rights deemed fundamental (and thus selectively incorporated into the 14th Amendment) has to know that barring gun possession on the basis of an ex parte order is on extremely shaky ground. Additionally, even if the order is not ex parte, there's the problem of whether a fundamental right can be taken without a criminal conviction. His reference to text and tradition is just silly--the right to possess arms was only very recently selectively incorporated, and that matters. So what you have is an Attorney General engaged in rank sophistry. Next, are you going to tell me that AG Holder was "brilliant" even though he thought that the Quarles exception to Miranda could be applied to stationhouse interrogations. That's just dumb.
What Garland should have said is that the federal courts are getting used to the sea change in the federal courts' protection of 2A rights, and that the AG's office thinks that the law remains constitutional.
But no--we get stupid talking points from a partisan hack.
Posted by: federalist | Feb 7, 2023 11:50:36 AM
Mary, as for your comment that I've never been a judge--well, Kim McLane Wardlaw is a federal court of appeals judge, and she has authored four, count 'em four, opinions where the judgment has been summarily reversed with an opinion. That means, on four separate occasion, she got it so wrong that the Supreme Court didn't bother to hear oral argument.
Posted by: federalist | Feb 7, 2023 11:52:42 AM
Yep, let's let Michael Levine decide what rights are ok to violate and which ones are not. After all, some of those same people used the n-word--so let's get rid of free speech.
And letting a free people keep and bear arms is not "reactionary" under the traditional sense of the world.
Posted by: federalist | Feb 7, 2023 12:16:03 PM
word, not world
Posted by: federalist | Feb 7, 2023 12:25:12 PM
And Mary, in case you doubt me on Wardlaw: https://www.nationalreview.com/bench-memos/wardlaw-summary-reversals/
Posted by: federalist | Feb 7, 2023 12:34:40 PM
federalist, I'm ready to take on your challenge, provided Bill Otis and you are on the panel to keep my radical views in check!
Posted by: Michael R. Levine | Feb 7, 2023 12:43:27 PM
Everybody wants to rule the world! Seriously, allowing ordinary people to be armed is not reactionary in any real sense of the word.
Posted by: federalist | Feb 7, 2023 1:02:08 PM
federalist, I agree that allowing ordinary people to be armed is not reactionary, but I don't consider men who regularly beat and terrorize their spouses or girlfriends to be ordinary people. Saying that such folks have an absolute right to possess firearms, for me at least, is both a radical and reactionary position.
Posted by: Michael R Levine | Feb 7, 2023 1:12:52 PM
Get them convicted, and I am with you . . . .
Posted by: federalist | Feb 7, 2023 2:29:02 PM
Well, Mary? anon3?
Posted by: federalist | Feb 8, 2023 12:32:46 PM