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June 21, 2024
Supreme Court, by an 8-1 vote, rejects Second Amendment challenge to § 922(g)(8)
The Supreme Court this morning in US v. Rahimi, No. 22-915 (S. Ct. June 21, 2024) (available here), reversed a Fifth Circuit ruling that the Second Amendment was violated by a federal criminal law that prohibits any persons under a domestic violence restraining order from possessing a gun. Chief Justice Roberts authored a relatively short opinion for the Court and it starts and ends this way:
A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. 18 U.S.C. §922(g)(8). Respondent Zackey Rahimi is subject to such an order. The question is whether this provision may be enforced against him consistent with the Second Amendment....
In Heller, McDonald, and Bruen, this Court did not “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Bruen, 597 U. S., at 31. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.
The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Lengthy concurrences -- one by Justice Sotomayor joined by Justice Kagan and separate ones by Justice Gorsuch, by Justices Kavanaugh, by Justice Barrett and by Justice Jackson -- provide a whole lot more for Second Amendment folks to sort through. And Justice Thomas has a lengthy dissent that is of note in part because he was the author of th landmark Bruen decision.
I am certain a lot of other folks who are expert in the Second Amendment (as well as those who are not) will have a lot to say about Rahimi. But the closing "only this" statement in the opinion for the Court leads me to think that litigation over the Second Amendment is not going to get much easier for lower courts after this ruling.
June 21, 2024 at 11:03 AM | Permalink
Comments
The result here was easy to predict, and I (along with others) have been predicting it for a while now. Bruen got overwritten, so now it's getting trimmed back a bit. Not for nothing is Justice Thomas the only member of the Court dissenting. It looks to me like a classic Roberts opinion.
Thomas is a wonderful man and a highly principled Justice, but nobody gets everything right all the time.
Posted by: Bill Otis | Jun 21, 2024 11:11:58 AM
Actually, Thomas is the justice I am most likely to agree with when in lone dissent. This merely reinforces that tendency.
Posted by: Soronel Haetir | Jun 21, 2024 11:29:50 AM
Hey Billy boy Otis, tell us some more about how accurate your predictions are. Got any posts you could shamelessly self promote demonstrating where you made said predictions?
Posted by: Blah | Jun 21, 2024 11:49:45 AM
This is an appalling decision, and it points up the statism that unfortunately afflicts the Court. Rights are rights, and they shouldn't be taken away on a flimsy basis. (You can get at DVRO issued in an ex parte proceeding.) One of these can be issued because the one party was "verbally abusive."
Posted by: federalist | Jun 21, 2024 11:58:27 AM
Back to a post of mine from earlier, the concurring opinions seem to show that the debate over originalism and how to properly use history and tradition and precedent is just starting. Notwithstanding Justice Kavanaughs attack on long-established doctrines like heightened scrutiny, there is an argument on the other side that heightened scrutiny is about determining what (as the Robert's opinion identifies) are the "hows" and "whys" of the regulations permitted at the time of the Framing and upholding laws which are sufficiently similar given the changes to the subjects being regulated.
Reading the opinions, I do not think that this case will resolve the pending cases involving nonviolent felons. While the Supreme Court will probably remand those cases for reconsideration in light of this opinion, the circuit split will probably remain after that remand as there is language in this opinion that both sides can draw upon to support their view.
Posted by: tmm | Jun 21, 2024 1:30:15 PM
TMM.
You have to love the intellectual ferment on this Court. Law professors will be having a field day for years.
Posted by: Bill Otis | Jun 21, 2024 1:46:53 PM
Among the subsections of 18 U.S. C. sec. 922(g), this [(8)] is the easiest one to justify in practical terms. The truth is that more than 90% of domestic violence homicides are committed using firearms. That's a lot of bodies that could be prevented by at least temporarily disarming a party. Here in Kentucky, EPOs can be obtained EX PARTE, but they expire unless followed up with an adversarial DVO hearing within 10 days, where the movant must put up their evidence and the respondent gets to have his say and present his evidence. Here in Fayette County, perhaps 1/3 of EPOs don't survive the DVO. I even once saw a case where the wife of a Mexican attorney sought a DVO against her husband, where she was having an extra-marital affair, after he twisted her cell phone out of her hand to check whether she had just received a call from her sister, or whether it was from her lover. The call, which came while the family was driving home from Sunday morning Catholic Mass, was not from her sister, as she had claimed! Later that day, she moved out of their apartment and left her husband a note that said she was taking their 2-year-old son home to Mexico. In Court, it became clear that instead of going to Mexico, she had taken their son and moved in with her paramour! But the deciding factor that came out at the DVO hearing was that their VISA to remain in the U.S. was due to expire in 2 weeks, at which point they would be returning to Mexico. The Family Court Judge finally said that he would not extend the EPO, and that the parties could resolve their issues in the Mexican Courts after they departed in 2 weeks!
The other prong of 922(g), (9), that deals with those who have been convicted of a misdemeanor crime of domestic violence is more troubling and may be harder for the Supreme Court to justify the lifetime ban on owning or possessing a firearm or ammunition. There clearly were no such laws in the U.S. between 1791 and the 1996. And there are tens of thousands of people with one-time domestic violence convictions that don't need to be barred from having a gun for the rest of their lives. Two years ago, I saw a case where a husband confronted his wife over $65,000 missing from their joint checking account. She told him that she had taken the money out to put down as a payment on a house (they were living in an apartment) and she had signed a contract to buy the house the day before, without consulting him, because she knew that he wouldn't go along with her desires. They were both nurses. She said that her nursing supervisor at work, another man, had told her to just go ahead and do it. Her husband was angry and offended and he slapped her face, once. The police came, he was arrested for misdemeanor assault, and ended up pleading guilty to get out of jail, so that he wouldn't lose his job. Ultimately, however, he did lose his job, because the psychiatric hospital where he worked will not employ anyone convicted of any crime of violence, misdemeanor or felony. This man was 50 years old and had never been arrested or charged with any crime before in his entire life. He had been married for 23 years without ever being violent with his wife (or anyone else) before. Yet, he is not barred for life from ever again owning or possessing a gun or ammunition. Another problem with 922(g)(9) is that neither ATF nor DOJ has ever been willing to define a list of statues on a state-by-state basis that qualify as "misdemeanor crimes of domestic violence". Defense lawyers here used to frequently negotiate to get minor 4th degree assault charges reduced to "harassment with contact", believing that it is not a crime of domestic violence. But then a Judge refused to return 11 forearms taken from a man by the Sheriff until his DVO was terminated, based upon the fact that the man had a conviction for "harassment with contact". The Feds play "hide the ball" with 922(g)(9) by refusing to say which statutes qualify for disarming people. In that case, the boyfriend and girlfriend submitted an Agreed order to the Family Court Judge, which he signed, directing the Sheriff to return the man's guns. The Sheriff's attorney advised the Judge that the Sheriff was following advice from ATF, and that under the Supremacy clause, the state court Judge couldn't tell the Sheriff to violate Federal law [922(g)(9)] by returning firearms to a prohibited person. But I think the Supreme Court will have a much harder time upholding 922(g)(9) against a Second Amendment challenge. Stay tuned.
Posted by: Jim Gormley | Jun 21, 2024 1:47:23 PM
back in 1992, "It was the economy, stupid." Today, all eyes are on 92(g)(1). And on that score, Justice Barrett's concurrence may be the most consequential.
Just my two cents.
Posted by: Da Man | Jun 21, 2024 2:25:48 PM
*922(g)(1)
Posted by: Da MAn | Jun 21, 2024 2:27:53 PM
Well, if Justice Thomas is unfairly hounded from the court, the work hes done in Bruen and here should ensure that a 7-figure annual salary is his for the taking in his third act as executive director of the NRA.
Give 'em hell, Justice Thomas! MAGA
Posted by: MAGA 2024 | Jun 21, 2024 2:38:31 PM
Jim Gormley :
The cases you share consistently present interest. Thank you!
Im curious if the recent discovery of the ATF Supremacy Claus by Kentucky sherriffs has changed the dynamics of plea bargaining in the state. You wrote "Defense lawyers here used to frequently negotiate to get minor 4th degree assault charges reduced to "harassment with contact", believing that it is not a crime of domestic violence."
Are defense attorneys playing harder ball now? Do prosecutors have to make sweeter deals to get pleas? Or are more Kentuckians simply ending up permanently disarmed?
MAGA
Posted by: MAGA 2024 | Jun 21, 2024 2:42:03 PM
I am probably not going to always agree with the results of Justice Barrett's analysis of the principles underlying any particular amendment or how that principle applies to current law, but her explanation of how originalism should work sounds like a sounder approach than the one put forward by some proponents of originalism on the Court.
Posted by: tmm | Jun 21, 2024 2:44:15 PM
TMM - exactly. And in 922(g)(1) cases the court is going to have to draw a line between white collar offenders who present no danger and felons convicted of assault and felons convicted of drug trafficking (and offense that, in a particular case may not involve violence, but presents an enormous risk of gun violence). I see Justice Barrett's and the Chief's votes as critical and her approach may help the court steer a clear and discernible path through the thicket.
Posted by: Da Man | Jun 21, 2024 3:01:59 PM
This should be an easy case--certainly something as important as the right to own a gun cannot be subject to a court order procured without a meaningful opportunity to be heard. But this is where we are in America. This is a bad decision, and worse, it signals to all those government officials openly defying Bruen that the Court isn't sure of itself.
Posted by: federalist | Jun 21, 2024 4:19:15 PM
https://pjmedia.com/matt-margolis/2024/06/21/can-anyone-explain-why-joe-biden-nominated-this-woman-to-the-federal-bench-n4930045
And in other news, Senator Kennedy torpedoing another 'rat judge.
Posted by: federalist | Jun 21, 2024 4:21:15 PM
Billy boy Otis making more predictions! I guess we better go to Vegas and bet accordingly! Remember kids, Billy is always right with his insightful legal analyses—he said so!
Posted by: Blah | Jun 21, 2024 4:39:22 PM
Blah, donnez-nous un moment de repos.
Posted by: federalist | Jun 21, 2024 5:17:11 PM
Federalist writes "Rights are rights, and they shouldn't be taken away on a flimsy basis." He sure sang a different tune when it came to Dobbs.
Posted by: Amy | Jun 22, 2024 4:00:08 PM
Mr. Otis writes that "Thomas is a wonderful man." We would all wonderful men if our billionaire patrons paid for all our vacation trips and family expenses.
Posted by: Onlooker | Jun 22, 2024 4:03:32 PM
Amy,
Abortion was never a “right.”
Posted by: TarlsQtr | Jun 22, 2024 8:39:51 PM
We have a client recently charged with violating 18 U.S. Codes section 930(a) [possession of a firearm inside a federal facility]. His charge is a misdemeanor that arises out of him bringing a pistol in his backpack to Marine reserve corps weekend training. The client has no criminal history at all. He legally bought and owns the gun. He didn't want to leave it at home for the weekend, since his step-father is a felon. An officer confiscated his pistol and called the F.B.I. It's really one of the silliest federal criminal cases I have seen in a while. As a practical matter, he made an honest mistake and the pistol wasn't being used in connection with any other crime. We think they should have given him back his pistol at the end of the weekend of training and told him not to bring it back again. The client is presently out on bond and is wearing an ankle monitor, even though they kept his pistol and he has no prior criminal history. In January 2024, a U.S. District Judge in Tampa declared 18 U.S. Code sec. 930(a) a violation of the Second Amendment, in light of the 2022 Bruen decision. See, "United States v. Ayala", 2024 U.S. Dist. LEXIS 7326 (M.D. Fla. - Tampa January 12, 2024). The Ayala case involved a U. S. Postal Service 18-wheeler driver who brought a person pistol to work in a fanny pack and carried it while he drove mail over the road. The driver also had a Florida permit to carry a concealed weapon. The Judge noted that the statute wasn't enacted until 1988. Between 1791 and 1987, there was no statute barring postal workers from carrying guns. In fact, when mail was transported by stage coach and then by train, those carrying and guarding the mail were typically armed to protect the mail against robbery. The absence of any historical precedent before 1988 doomed section 930(a). We anticipate filing a Motion to Dismiss the 930(a) charge against our client in the next 2 weeks, based upon the 2022 Bruen decision and the Ayala case from Tampa. We anticipate that the case could go all the way up to the Supreme Court, if the Government really wants to fight this battle.
Posted by: Jim Gormley | Jun 22, 2024 11:29:41 PM
"one by Justice Gorsuch joined by Justices Kavanaugh, Barrett and Jackson"
This is a mistake; each of them wrote their own concurrence.
Posted by: anon | Jun 23, 2024 7:35:16 AM
You are quite right, anon. Thanks for flagging this; I have now corrected the main post. Much appreciated.
Posted by: Doug B | Jun 23, 2024 8:50:37 AM
Tarls writes that Abortion was never a “right.” And I say 2 plus 2 are 5.
Posted by: Amy | Jun 23, 2024 2:12:22 PM
Amy,
You can read the constitution 100 times and it still will not be in there.
You may believe 2+2=5. You don’t seem to believe embryonic textbooks about when a new life begins. I suspect you believe a dude can be a woman too.
Posted by: TarlsQtr | Jun 23, 2024 11:12:15 PM
Tarls, cite me a statement from your embryonic textbooks saying an embryo is a baby. And while you are looking, consider that when masturbate and ejaculate your sperm all over the place, you are killing potential babies. How do you sleep at night, you murdering fiend?
Posted by: Amy | Jun 24, 2024 11:08:12 AM
Amy,
You lack basic scientific knowledge.
There is no new human life until the sperm fertilizes the egg. A sperm is no more special than a flake of skin.
‐“Human life begins at fertilization, the process during which a male gamete or sperm unites with a female gamete or oocyte (ovum) to form a single cell called a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual.” “A zygote is the beginning of a new human being (i.e., an embryo).” (Keith L. Moore, The Developing Human: Clinically Oriented Embryology, 7th edition. Philadelphia, PA: Saunders, 2003. pp. 16, 2.)
‐“Fertilization is the process by which male and female haploid gametes (sperm and egg) unite to produce a genetically distinct individual.” (Signorelli et al., Kinases, phosphatases and proteases during sperm capacitation, CELL TISSUE RES. 349(3):765, March 20, 2012.)
‐“Although life is a continuous process, fertilization (which, incidentally, is not a ‘moment’) is a critical landmark because, under ordinary circumstances, a new, genetically distinct human organism is formed when the chromosomes of the male and female pronuclei blend in the oocyte” (Emphasis added; Ronan O’Rahilly and Fabiola Mueller, Human Embryology and Teratology, 3rd edition. New York: John Wiley & Sons, 2000, p. 8).
Posted by: TarlsQtr | Jun 24, 2024 1:33:52 PM
Amy,
And why do you start at “baby?” A new life doesn’t begin at baby any more than a life ends when the first cell of a fatal cancer appears. Life is a cycle.
It begins at fertilization and ends at death.
Posted by: TarlsQtr | Jun 24, 2024 1:45:21 PM
Tarls, your first cite states in part, "Human life begins at fertilization.." But nothing here states that an embryo is a baby.
Second, you don't respond to your murderous behavior when you ejaculate your living sperm onto your bedsheets, or towels, or tissues which you then flush down the toilet.
Posted by: Amy | Jun 24, 2024 2:19:18 PM
Amy,
I didn’t use the word “baby,” you did.
As far as sperm, it’s no different than scraping skin off my arm. It’s cells, not human life. Cells (sperm, egg) become human life when they meet and fertilize.
Posted by: TarlsQtr | Jun 24, 2024 3:57:14 PM
