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November 7, 2023
Some press pieces reviewing SCOTUS argument in Rahimi Second Amendment case
As previewed in this post, the Supreme Court today heard oral argument in US v. Rahimi to consider how its (new originalist) Second Amendment test applies to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC ยง 922(g)(8). The 90+ minute oral argument (and its transcript) is available at this link. As highlighted by the press coverage, most SCOTUS watchers expect the Court to uphold the federal law against a Second Amendment challenge:
From CBS News, "Supreme Court wary of striking down 1994 law protecting domestic violence victims in high-stakes gun case"
From Reuters, "US Supreme Court leans toward allowing domestic-violence gun curbs"
From Vox, "The Supreme Court appears poised to rein in its worst decision on guns"
From The Washington Post, "Court seems likely to allow gun bans for those under protective orders"
Upon listening to the oral argument, I share the view that there seems to be a majority of Justices (and perhaps even all the Justices) who are prepared to rework the Bruen originalist approach to the Second Amendment to uphold the federal criminal firearm prohibition in Rahimi. But I still found the entire oral argument quite interesting, and I was especially struck by the claim by Rahimi's lawyer that there were no complete criminal bans on the possession of guns by certain people until 1968. If originalism as a mode of constitutional interpretation really cared about history, that would seem to be a quite significant bit of history for resolving this case. We shall see in a few months if history and originalism really matters in this context.
November 7, 2023 at 11:08 PM | Permalink
Comments
SCOTUS to defendant: "Nice try anyway. Next time try not beating up your wife and you won't have to worry about it."
Posted by: Bill Otis | Nov 8, 2023 9:17:57 AM
I think there are Due Process issues with taking away people's rights based on ex parte proceedings. I also think there are some Commerce Clause issues as well.
Posted by: federalist | Nov 8, 2023 9:30:42 AM
Doug, did you see CJ Stroud's comments after his amazing performance Sunday? I would have thought you would have a post on that.
Posted by: federalist | Nov 8, 2023 9:41:39 AM
Lots of celebrities have lots to say about CJ topics, federalist, and I generally do not have time to blog about it even when I am a fan of the celebrity. Again, great that there are topics you want to flag beyond those I can cover; you really would have lots of material for your own blog or substack. Be sure to provide links to interesting work you do elsewhere as Bill often does.
Posted by: Doug B | Nov 8, 2023 10:27:30 AM
Here in Kentucky, the Ex Parte Emergency Protective Order (an "EPO") requires an adversarial hearing to follow before the Family Court Judge within 10 days of the Order being issued. Only after that adversarial hearing does the Judge decide whether to continue the Order (which is then called a DVO, or Domestic Violence Order). So, any loss of firearms may only be for a short time, depending how things go at the adversarial hearing and whether a DVO is issued, for 6 months to 3 years max. In Fayette County (Lexington), Kentucky, the Sheriff sends Deputies out to the residence of people served with EPOs to ask them whether they have any firearms, and if so, to confiscate them, leaving a receipt. The firearms are then supposed to be returned upon expiration of the DVO, assuming the owner has no other disqualifying events. At one point, about 10 years ago, two Deputies were fired and prosecuted, because they had not been turning confiscated firearms into the Sheriff's property room, but, rather, had been pawning some of the confiscated guns. Then, in another case, the Sheriff refused to return 11 guns to a man after his girl friend's DVO was terminated early by the Family Court, at her request. A significant issue across the country has been that DOJ and ATF have refused to define lists in each state of what constitutes a misdemeanor crime of domestic violence, leaving the matter subjective and open-ended. Defense attorneys in Kentucky had long taken the view that while 4th degree (misdemeanor) assault is a crime of domestic violence, harassment with contact is not. Defense counsel would sometimes plead 4th degree assault charges down to harassment with contact, so that their clients could keep their guns. But the local Sheriff refused to return the man's 11 guns (he had 26 misdemeanor convictions, but never a felony conviction), because she took the position that his conviction for harassment with contact is a misdemeanor crime of domestic violence. The man and his girlfriend submitted a consent order to the Family Court Judge, who signed it, ordering the Sheriff to return his 11 guns, since the DVO had ended. But even in the face of a Court Order, the Sheriff took the position that the Judge Court not Order her to violate Federal firearms laws by returning guns to a man convicted of a misdemeanor crime of domestic violence. The man sued the Sheriff in Federal Court under 42 U.S.C. section 1983, for violating his civil rights under color of law, by refusing to return his guns. He sought a Federal Court Order requiring the Sheriff to return his 11 guns, but the Judge dismissed his case, holding that returning firearms is not an available remedy under section 1983. The plaintiff could not afford to pay his attorney to appeal the matter to the Sixth Circuit Court of Appeals, so he has never gotten his 11 guns back; and there is still no Federal case holding that "harassment with contact" (a Kentucky misdemeanor) is a disqualifying misdemeanor crime of domestic violence under the Federal firearms statues. Our Sheriff, Kathy Whitt, is the longest serving female sheriff in America, for more than 20 years. If the Federal charge about disqualifying misdemeanor crimes of domestic violence is to be upheld, then the DOJ and ATF need to come up with a list of disqualifying misdemeanors under the laws of each state, so people will have proper notice and can comply with them law.
Posted by: Jim Gormley | Nov 8, 2023 10:40:48 AM
The Commerce Clause issues apply to the federal "FIP" statute as a whole. It is solved by having effecting commerce as an element of the offense so any Commerce Clause issues are an "as applied" versus facial challenge to the statute.
The due process issue would tend to be a problem with the underlying order of protection and the state laws authorizing them. I frequently hear complaints about the conduct of some judges in some states in dealing with ex parte orders and giving unwarranted continuances as one of the reasons why an order of protection should not trigger a restriction on possessing firearms, but, in almost every case, that is an issue of a judge not following the law. (I know, shocking that judges do not always follow the law). That seems to be a policy argument, but that policy argument applies to lots of laws.
More importantly, the only issue presently before the Court is the Second Amendment issue. And the issue is how similar 18th century gun laws need to be to current gun laws. Looking at the lower court opinions, there seems to be some laws from that time imposing some restrictions on gun ownership based on how dangerous the person was. Given those gun laws (and the fact that modern guns are much more dangerous than 18th century guns), the issue seems to be whether the Second Amendment bars modern legislatures from taking into account that modern guns are more dangerous in creating a broader definition of what characteristics make somebody too dangerous to have a gun.
Posted by: tmm | Nov 8, 2023 11:44:52 AM
