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July 6, 2023
Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
In this post, I noted that the Supreme Court in its final order list granted cert review in US v. Rahimi to address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization. Since that grant, I have seen some new comment on the case, and here is a smattering of those pieces:
From HuffPost, "This Man Is A Suspect In Multiple Shootings. His Case May Decide The Future Of Gun Rights."
From the Independent, "Should domestic abusers have the right to be armed? The Supreme Court could upend protections for survivors"
From Mother Jones, "A Federal Gun Law Has Protected Domestic Violence Survivors for 30 Years. Now SCOTUS Will Decide Its Fate."
From Slate, "The Supreme Court’s YOLO Approach to Guns Is About to Face a Major Test"
Some (of many) prior recent related posts:
- New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
- Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
- How long until the Supreme Court takes up another Second Amendment case after Bruen?
- With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by those subject to DV orders?
July 6, 2023 at 07:21 PM | Permalink
Comments
This is going to be fun to watch, as two major components of the Left will square off against one another. In one corner will be the "defendants-are-victims-of-the-big-bad-state" crowd, rooting for convicted felons to be able to possess guns with impunity. I the other corner will be the gun control crowd -- the people who basically think the Second Amendment should get tanked and that NO ONE should have a gun, even darlings like previously convicted felons.
I want a ringside seat!
Posted by: Bill Otis | Jul 6, 2023 8:54:01 PM
The same day that the Fifth Circuit decided Rahimi, U.S. District Judge Danny Reeves reached the same conclusion about 18 U.S.C. section 922(g)(8) in the case of United States v. Sherman Kelvin Combs, Crim. Case No. 5:22-CR-00136-DCR-MAS. Judge reeves' Opinion and Order are appeal to the Sixth Circuit Court of Appeals now. Notably, Judge Reeves is usually quite conservative in criminal cases, and he is a former member of the U. S. Sentencing Commission. The winning attorney here in Lexington is Thomas Lyons.
Posted by: Jim Gormley | Jul 6, 2023 9:24:55 PM
Bill, the Rahimi case is about the constitutionality of 18 USC 922(g)(8), which makes it a federal crime for a person under a domestic violence restraining order to posses a firearm. The decision will likely impact 2A doctrines now leading some courts to declare federal felon in possession -- 922(g)(1) -- unconstitutional, but this case is not technically about convicted felons.
Because we are talking about guns and domestic violence, I suspect all the Dem appointees to SCOTUS will vote to uphold the constitutionality of 18 USC 922(g)(8). But, of course, the six GOP appointees are the ones that really matter and will determine the outcome. Do you expect, Bill, that they will find unconstitutional how Congress has sought to limit gun possession by those under restraining orders?
Posted by: Doug B | Jul 6, 2023 9:37:14 PM
If the SCOTUS strikes down this Federal statute, it opens the door for challenges to laws that criminalize convicted felons possessing firearms. The silver lining here is that defense attorneys will challenge state statutes prohibiting felons from possessing firearms which in turn could be struck down. Thus, it is one less crime a felon can be convicted of.
The downside of course is that we don't know if or when the Court will stop in its broad interpretation of the 2nd Amendment. Thus, a whole slew of gun laws are potentially on the chopping block.
Posted by: Anon | Jul 7, 2023 1:21:36 AM
I read the Fifth Circuit opinion in Rahimi. Even under the Bruen test, they could have easily reached the opposite conclusion, but they decided that some potential historical analogs to 922(g)(8) were not close enough. And that's the problem that I have with the Bruen test, we are comparing apples and oranges (because the entire regulatory scheme and the items being regulated are different) and making a very subjective decision on whether we think the old rules are sufficiently similar to the new rules which is simply carte blanche for judicial activism -- approving the regulations that they like, disapproving the regulations that they do not like.
Posted by: tmm | Jul 7, 2023 10:48:09 AM
I note that the Fifth Circuit facially invalidated 922(g)(8), meaning it held that there was no defendant in the class defined by (g)(8) to whom the statute could be applied constitutionally. I find that dubious, so I wonder whether SCOTUS will use Rahimi to pull back from its trend of allowing facial challenges to criminal statutes (see Johnson v. US (2015)) by defendants to whom it could be applied constitutionally.
Posted by: Da Man | Jul 7, 2023 11:46:52 AM
Doug --
"Bill, the Rahimi case is about the constitutionality of 18 USC 922(g)(8), which makes it a federal crime for a person under a domestic violence restraining order to posses a firearm. The decision will likely impact 2A doctrines now leading some courts to declare federal felon in possession -- 922(g)(1) -- unconstitutional, but this case is not technically about convicted felons."
Right you are. I was too hasty. Thanks for the correction.
"Because we are talking about guns and domestic violence, I suspect all the Dem appointees to SCOTUS will vote to uphold the constitutionality of 18 USC 922(g)(8). But, of course, the six GOP appointees are the ones that really matter and will determine the outcome. Do you expect, Bill, that they will find unconstitutional how Congress has sought to limit gun possession by those under restraining orders?"
Never reluctant to go out on a limb, I'll give you my fearless forecast. Government wins 5-4. In the majority are the Chief, Alito, Sotomayor, Kagan and Jackson. Dissenting are Thomas, Gorsuch, Kavanaugh and Barrett.
Posted by: Bill Otis | Jul 7, 2023 4:32:01 PM
I think your prediction is quite reasonable, Bill, though I might guess that Kavanaugh could go with your predicted majority (perhaps slightly influenced by the guy with the gun who came after him last year). Indeed, there might even be a chance this one goes for the government 9-0 if Thomas seeks to write an opinion that (re)defines the Bruen test around notions of dangerousness.
Posted by: Doug B | Jul 7, 2023 7:13:08 PM
Agreed on the predictions/head counts.
On the substance of the dispute: How or whether the predicted majority will alter Bruen, given the distinct absence of a historical regulation of domestic violence is what's interesting about the case. Maybe there are problems with that factual premise or about its relevance (please explain, if so), but these are, as I see it, the high stakes questions for people who have had the courage to seek a DV restraining order.
Put another way, does a history of apathy towards (or even outright endorsement of) domestic violence mean we are stuck w/the same in the context of the second amendment? Should we be?
Whether incarceration is the only or best solution to our problems w/misogyny and violence is not at issue in the case IMHO. But how to understand the constitution sure seems to be
Posted by: John | Jul 8, 2023 11:03:31 PM
Good points, John, and that is why I think we may get a rewriting of Bruen that claims that the history allows for regulations to keep guns from the dangerous. Justice Barrett's big dissenting opinion in the 2019 Kanter case (when she was on the 7th Circuit) started this way:
"History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are *dangerous*."
Given that position, I am now thinking she actually is a pretty likely vote to uphold the constitutionality of 18 USC 922(g)(8) --- and also a vote against the constitutionality of 18 USC 922(g)(1) in some cases --- and it will be interesting to see if/how the Court will use Rahimi to rework Bruen along the lines of her work in Kanter.
Posted by: Doug B | Jul 9, 2023 11:37:28 AM
