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July 12, 2023
Some more 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. And last week, I flagged here some early commentary on the case. The interesting coverage and commentary on Rahimi and related issues keeps coming, and here are some more of the what folks are saying:
From Bloomberg Law, "Judges Confused by Supreme Court’s Historical Test for Gun Laws"
From NY Gov Kathy Hochul in New York Times, "The Supreme Court Case That Has Me Worried, for Survivors and for My State"
From Reuters, "Key gun control measure in the crosshairs at US Supreme Court"
From Slate, "SCOTUS Is Really Considering if Domestic Abusers Should Be Allowed Guns"
From Spectrum News 1, "Advocates: Next SCOTUS gun rights decision will clarify N.Y. laws"
From USA Today, "How a Second Amendment case at the Supreme Court is putting gun rights groups in a jam"
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?
- Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
July 12, 2023 at 03:28 PM | Permalink
Comments
What liberal (and some conservative) groups constantly miss is that the Supreme Court is not there to worry about the social desirability of its decisions. That is consequentialist thinking that has no place in constitutional interpretation. The question before the Court is whether the text of the Second Amendment allows the government to forbid gun ownership under these circumstances. The answer to that question cannot be found in which groups like, and which dislike, gun ownership.
Posted by: Bill Otis | Jul 12, 2023 3:39:56 PM
Bill, you say that the "question before the Court is whether the text of the Second Amendment allows the government to forbid gun ownership under these circumstances." The relevant text of the Second Amendment is "the right of the people to keep and bear Arms, shall not be infringed." Since Rahimi is among "the people," and since SCOTUS has said (repeatedly) that completely barring gun possession is an unconstitutional infringement (see Heller and McDonald), then the text seems not to allow the prohibition at issue. (Moreover, if the text was clear, we'd not have lower courts divided on the issue.)
Of course, lots and lots of exceptions have already been read into the text of the Second Amendment (and other seemingly absolute constitutional provisions), and there is a long history of "social desirability" and a range of extra-textual factors explaining outcomes even more than the text. You may wish and advocate that the Justices disregard "the social desirability of its decisions," but there are sound reasons for outsiders to believe that a lot more matters to the Justices than just the (often vague) text.
Posted by: Doug B | Jul 12, 2023 4:52:08 PM
I don't think the Supreme Court will have the guts to make this the law of the land, but the surety bond laws are spot on historically. People thought to be dangerous could be required to post a bond for good behavior, but couldn't be stripped of their right to bear arms for self defense outright.
Posted by: Poirot | Jul 12, 2023 6:32:26 PM
Doug --
It's true that A FORM of social desirability has been read into the Second Amendment -- the form that existed at the time the Amendment was ratified (essentially by the Framers, the ratification having been in December 1791). That did not include, e.g., Gov. Hochul's present campaign. It did include the understanding that children and lunatics could not possess guns, an understanding that continues today without a lot of controversy (see Scalia's Heller dictum). It also included the understanding that felons could not possess them, at least to some extent. What the extent is, is the nub of the present controversy, particularly after Bruen.
To say that, however, is a far cry from opening the door to willy-nilly consequentialist thinking as a legitimate part of constitutional interpretation. Were it otherwise, the Court might just as well announce that it's become a legislature, and that what its members perceive to be wise policy will now be declared to be part of the Constitution. That is exactly what Scalia fought against when he famously said that he wanted a dead Constitution and a live legislature. And it's where I stand as well.
Posted by: Bill Otis | Jul 12, 2023 7:04:48 PM
So now you are saying, Bill, that it is the Justices' job to read "A FORM of social desirability" into the Second Amendment -- but that the "social desirability" is to be "the form that existed at the time the Amendment was ratified (essentially by the Framers, the ratification having been in December 1791)." To my knowledge, no laws outlawed domestic violence in 1791 or disarmed anyone for non-criminal family threatening. (Eg, I have read that Alabama was the first state to rescind the legal right of men to beat their wives in 1871.) So, Rahimi would seem to be a sure winner in his Second Amendment claims if originalism is a serious form of constitutional interpretation with no regard for what you call "consequentialist thinking."
Similarly, I am not aware of any law in the Founding era that permanently disarmed anyone on the basis of just a felony conviction. So, again, if originalism is a serious form of constitutional interpretation with no regard for what you call "consequentialist thinking," all felon-in-possession criminal laws ought to plainly and readily be found unconstitutional.
My sense, though, is that everyone really believes in some form of a "living constitution" so that the broader values and principles of the Constitution can and will evolve to help shape modern constitutional interpretation rather than having jurisprudence fully controlled and constrained by the very different norms and needs of the 18th Century. That is why I predict Rahimi and many (perhaps all) felons to lose their Second Amendment claims. Whether all folks then see originalism for the incomplete theory that is has to be is harder to predict.
Posted by: Doug B | Jul 12, 2023 10:38:46 PM
Doug --
I'm sticking with my prediction of a 5-4 government win in Rahimi. The three liberals want more gun control; Alito tends to side with law enforcement (although not as automatically as you often seem to claim); and Roberts is a conventional thinker and an incrementalist. As you suggested earlier, the government might also get Kavanaugh, but I tend to think his modest libertarian streak will have him siding with the defendant.
"My sense, though, is that everyone really believes in some form of a "living constitution" so that the broader values and principles of the Constitution can and will evolve to help shape modern constitutional interpretation rather than having jurisprudence fully controlled and constrained by the very different norms and needs of the 18th Century."
I'm all for keeping the law up to date, but that is not the job of unelected courts. It's the job of the legislature. Judges simply do not have an electoral mandate that would legitimately empower them to turn their policy preferences into law.
Posted by: Bill Otis | Jul 12, 2023 11:33:08 PM
Bill, it is a very telling (and honest) bit of reality that your accounting of the likely 2A votes of various justices has everything to do with policy/philosophy and "social desirability" and makes ZERO mention of the text, history and tradition that are supposedly the currency of Second Amendment jurisprudence after Bruen. And that's my main point -- who judges are social inclined to "side with" will always end up influencing, consciously and unconsciously, how jurists interpret/apply vague text and tradition. And law office history, I fear, just makes it that much easier for judges to try to cover up, rather than honestly explain, the policy values driving their decision-making.
As much as originalism claims sometimes to aspire to prevent judges from putting their "policy preferences into law," every possible mode of "judging" will inevitably reflect some forms of judicial "preferences" influenced in part by societal evolutions. Like you, I do not want judges to see their job to be just another form of policy-making in robes. But I also do not want jurists dishonestly claiming that they are only guided by text, history and tradition when it is so very obvious --- as evidenced by your comments and theirs --- that all sorts of other concerns and values are part of their work.
Posted by: Doug B | Jul 13, 2023 10:23:58 AM
Doug --
I wasn't trying to decide the case on the merits. Above my pay grade. I was trying to guess how each Justice will vote. I do that simply by taking a look at how they voted on similar issues in the past.
My hat is off to the judges who are the most disciplined and determined in trying to keep their policy preferences out of it, even when this, like every other human enterprise, cannot be done perfectly. My hat is not so off to the judges who think it's fine to tout their policy preferences as "constitutional law," or who think they have either the ability or the portfolio to decide better than the legislature what "evolving standards of decency" demand.
Posted by: Bill Otis | Jul 13, 2023 10:56:43 AM
Fair enough, Bill, but the telling and important fact is that your guesses sensibly have everything to do with policy/philosophy and "social desirability." Social policy --- past and present --- always has and always will inevitably and unavoidably impact the work of judges (including, of course, cert denials for the Justices). I think we should all expect a lot more candor from judges and others on this front.
Posted by: Doug B | Jul 13, 2023 11:09:54 AM
