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April 10, 2024

Is Rahimi an "easy case" for any true originalist to rule for the criminal defendant and against the prosecution?

I have not written much recently about US v. Rahimi, in part because there is not much to write about while we wait to see how the Supreme Court chooses to apply its (new originalist) Second Amendment test to the federal criminal firearm prohibition of gun possession by persons subject to domestic violence restraining orders, 18 USC § 922(g)(8).  Moreover, based on the November Rahimi SCOTUS oral argument, it seemed like a majority of the Justices were quite disinclined to agree with the Fifth Circuit's view that a criminal bar on gun posession by those subject to domestic violence restraining orders is unconstituional. 

But Nelson Lund has this notable new New York Times opinion piece, headlined "The Fidelity of ‘Originalist’ Justices Is About to Be Tested," which prompted the quesiton in the title of this post.  Here are excerpts from the piece:

Under Bruen’s originalist test, Rahimi should be an easy case. The government has not informed the Supreme Court of a single pre-20th-century law that punished American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes. Not one.

The subject of the case, Zackey Rahimi, however, is an unsympathetic defendant.  His ex-girlfriend obtained a protective order against him on the ground that he had assaulted her, and he has been charged with several crimes involving the misuse of firearms.  Although he apparently had not been convicted of any offenses when the restraining order was issued, that order immediately and automatically criminalized his possession of a firearm under federal law.

If the court pretends that a historical tradition of such laws existed, it will not be faithful either to Bruen’s holding or to the court’s repeated insistence that the right to keep and bear arms is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

Imagine that an overwrought woman called her ex-boyfriend and threatened to scratch his eyes out.  If a state court ordered her to refrain from making such calls and from physically attacking him, the federal statute at issue in Rahimi would automatically make her a felon if she kept a gun in her own home.  And that would be true even if she had good reason to fear a violent attack from the ex-boyfriend or his criminal associates.  But no court would uphold a statute that made this restraining order a sufficient basis on which to criminalize her possession of a telephone.  We will soon find out whether the Supreme Court takes the Second Amendment as seriously as the First.

I generally do not find the analogy between guns and telephones (and between the Second and First Amendments) to be all that apt.  But I do find quite notable the suggestion that any true originalists should find it "easy" to determine the unconstitutionality of any laws that threaten to punish criminally any "American citizens, even those who had been convicted of a violent crime, for possessing a gun in their own homes."  In the votes and voices of a number of Justices (and others), I sometimes notice that affinity for originalism starts running out of steam when the outcomes start running in concerning directions.  Rahimi may prove to be another data point on that front in the coming months.

April 10, 2024 at 03:08 PM | Permalink


Bruen is overwritten and is going to be re-worked in this case, which the government will win (I'll bet. Any takers?). I much admire my friend Nelson Lund, but no one gets it right all the time (including those dozens of academic crackpots who were telling us with such fury that the Fourteenth Amendment disqualifies Trump from the ballot, as per Colorado. How did that work out?).

Posted by: Bill Otis | Apr 11, 2024 9:38:03 PM

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