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Will Justice Barrett Restore Donald Trump’s Gun Rights? Or Hunter Biden’s? (A Deep Dive)

Demetrius Freeman/The Washington Post via AP, Pool

Federal and state law has long held that certain classes of people are deemed unfit to carry a gun. Hunter Biden found out the hard way today that a habitual drug user is prohibited from carrying a gun.

This led to an exchange between myself and a person I follow who goes by ‘Native Patriot.’

The cut off text reads:

Was he supposed to incriminate himself in order to exercise his 2A rights? Thats a violation of the 5th Amendment.

There’s a couple things that will happen from this.

One. 

The Democrats can now claim that ‘nobody is above the law’. This is a way to justify Trumps felony convictions, because they slap Hunter on the wrist

Two. 

We’re now championing anti 2A gun laws to prosecute a political rival, when there’s 100 ACTUAL crimes all well documented on Hunters laptop that they SHOULD have gone after him on. 

This conviction is not the Win people are saying it is. You shouldn’t have to incriminate yourself in order to exercise your God given right to bear arms. 

We are giving in to the Democrat and communist narrative by championing this conviction as a win. 

Don’t do it. Stead fast in your convictions.

Hold these spineless RINO’s accountable!!!!

I responded this way:

The cut off text reads:

I have no problem with the notion that if you constantly use drugs you can’t have a gun. If I had an illness that caused many of the same mental effects, I would give up my guns

So it’s not saying that if he told the truth and incriminate[d] himself he would still get a gun. If he told the truth and said he was a habitual gun user, he wouldn’t get the gun. The question is a method of screening and frankly reminding the person that they can’t buy a gun if they are a habitual drug user

I am extremely strong on the second amendment. I think, for instance, that even if Trump was guilty of the crimes in New York City he still should have his right to bear arms. I think that these criminal disqualification laws only makes sense if there’s a rational argument that the crime suggests the person is violent or dangerous.

But I do think they make sense here. I wouldn’t trust a habitual drug user with a drivers license let alone a gun. 

And yes, it is my understanding that the jury did find beyond a reasonable doubt that he was habitually using drugs. He may not have been convicted [at] the time but he knew he was doing it. We all know he was

Another category of people who are forbidden from carrying a gun are people convicted of serious crimes, which is about to bite Trump in the nether regions:

But Mr. Polumbo (and Native Patriot) raises an important question: Is this fair?

And maybe more consequential to this discussion, is this legal, under the Second Amendment? 

Believe it or not, Justice Barrett might have already told us how she would vote on the matter, and the Supreme Court might least give us guidance on it in another case currently pending before it.

Let’s start with the statute, 18 U.S.C. § 922(g) which states in relevant part that:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));…

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; …

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Of course, the same subsection includes many other prohibitions, but I am just focusing on those three: felons, habitual drug users, and people subject to a domestic restraining order.

And naturally, that is just federal law. Most states have similar restrictions and might even go further than federal law.

But is this constitutional? Right now, the leading case on the legality of restrictions on the right to bear arms is New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Writing for the majority, Thomas explained how the law had developed in the lower courts and how the Supreme Court was correcting it:

Since Heller and McDonald, the two-step test that [some] Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by ‘establish[ing] that the challenged law regulates activity falling out-side the scope of the right as originally understood.’ E.g., Kanter v. Barr, 919 F.3d 437, 441 (CA7 2019) (internal quotation marks omitted). … The Courts of Appeals then ascertain the original scope of the right based on its historical meaning. … If the government can prove that the regulated conduct falls beyond the Amendment's original scope, ‘then the analysis can stop there; the regulated activity is categorically unprotected.’ … But if the historical evidence at this step is ‘inconclusive or suggests that the regulated activity is not categorically unprotected,’ the courts generally proceed to step two. Kanter, 919 F.3d at 441 (internal quotation marks omitted).

At the second step, courts often analyze ‘how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right.’ … The Courts of Appeals generally maintain ‘that the core Second Amendment right is limited to self-defense in the home.’ … If a ‘core’ Second Amendment right is burdened, courts apply ‘strict scrutiny’ and ask whether the Government can prove that the law is ‘narrowly tailored to achieve a compelling governmental interest.’ … Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is ‘substantially related to the achievement of an important governmental interest.’ … Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right. … 

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

(Some citations omitted).  In other words, previously the lower courts would first ask whether or not historically the right to bear arms has been understood to extend to the situation at hand, and then, if it does, is this restriction still justified because it is narrowly tailored to serve a compelling purpose?

The problem with the second part of that analysis, is that it gives leftist judges hostile to the Second Amendment an excuse to uphold any restriction on firearms. Disarming people is always a compelling interest to them, and how could it not be narrowly tailored if they don’t want anyone to have a gun? So, while this legal test—called the ‘strict scrutiny test’—is normally deadly in almost all cases to the government’s claims, in gun cases it has been flipped on its head in many circuits, so that it always favors to the government.

Thus, Thomas’ analysis basically cut the legs out from a huge number of cases. So now, when you talk about a restriction on Second Amendment rights, you have to confine yourself to historical types of restrictions.

You might notice something else in that passage I quoted. Normally, when I present long quotes from a court, I cut out all of the citations. I write these deep dives for lay people and I don’t think most lay people want to read through all those citations. 

But in this case, I cut out all of the citations but one: Kanter v. Barr, 919 F. 3d 437 (7th Cir. 2019). And why did I leave in that one? Because current Justice Barrett sat as circuit judge in that case, and she dissented from that decision. And Thomas’ majority opinion in Bruen—which Justice Barrett joined, naturally—basically was calling out the majority opinion in Kanter, and saying it was wrong. That lower court engaged in the same two step analysis as many other circuit courts, and it was wrong to do so.

The fact that the Supreme Court more or less called out the majority opinion as wrong doesn’t necessarily mean that the Supreme Court is also saying that the dissent is right. The Supreme Court could think both the majority and the dissent is wrong in significant ways. Still, a judge’s previous opinions on a topic is likely to inform their future action, so let’s take a look at what she said.

To set the table a little bit, the case involved a man named Rickey Kanter. He was previously convicted of mail fraud. He sold shoe inserts to help diabetics that were not approved for Medicare reimbursement, but claimed that they were approved. Kanter eventually pled guilty to one count of federal mail fraud and frankly this smells like a plea agreement to me. So, while what Kanter did was wrong, and there’s a good chance that real people were physically harmed by his deception, he ain’t exactly a gang banger doing drive-bys, a major drug lord or even a person accused of domestic violence.

The case came up, by the way, because after he served his time and paid his debts, he sued to challenge the lifetime ban on his ownership of firearms as unconstitutional. In other words, he didn’t currently have a gun—he didn’t break this law that he thinks is unjust and unconstitutional. He just wanted to be able to legally have one again.

That is what lawyers call ‘good facts.’ A common saying for lawyers is ‘bad facts make bad law, good facts make good law.’ A classic example of good facts (for advocates of the Second Amendment) would be found in District of Columbia v. Heller, 554 U.S. 570 (2008). Here’s how the Supreme Court described that plaintiff:

Respondent Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Thurgood Marshall Judiciary Building. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused.  

So, literally during the day, it was his job to carry a gun, to protect personnel who work in the D.C. (territorial) judiciary, but he wasn’t allowed to carry one at home to protect himself and any loved ones he might have. If they don’t think he could be trusted with a gun, why was he allowed to carry one as a cop? If he could be trusted with a gun on duty, why couldn’t he be trusted with one at home? The rule that said he couldn’t carry a gun when he was off duty was not only unfair, it was ridiculous.

So, getting back to Kanter, the majority basically ran the usual test (the one that Bruen tore in half) and concluded that Kanter should not be allowed to carry a gun again. But I don’t think their reasoning is interesting, because this case is no longer good law and none of the judges in the majority are currently on the Supreme Court. So, let’s go to Barrett’s dissent.

She starts off basically laying out her thesis:

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. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791— and for well more than a century after-ward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.

18 U.S.C. § 922(g)(1) and Wisconsin Statute § 941.29(1m) would stand on solid footing if their categorical bans were tailored to serve the governments' undeniably compelling interest in protecting the public from gun violence. But their dispossession of all felons—both violent and non-violent—is unconstitutional as applied to Kanter, who was convicted of mail fraud for falsely representing that his company's therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly. Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.

If you want the TL:DR version of what she says, that is it. But this is a deep dive, so let’s get deeper into it.

A threshold question is this: The Second Amendment protects the right of ‘the people’ to keep and bear arms. As explained in Heller, that term

refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

That is not to say it is a collective term, either. The Fourth Amendment, for instance, talks about the right of ‘the people’ not to have their homes searched and it has always been read to indicate an individual right. Based on those kinds of examples, the Supreme Court found in Heller that the Second Amendment is an individual right.

So, turning back Kanter case, some courts have said that you can’t deprive the people of the right to bear arms under the second amendment at all, but some people don’t count as among ‘the people.’

Other courts would say that all citizens were among ‘the people’ but nonetheless, some of ‘the people’ could be denied the right to bear arms, anyway.

And Barrett believes that the second approach is the correct one when talking about limitations on the Second Amendment and I tend to agree. For instance, the Fourteenth Amendment would say that a newborn baby, born on American soil, is a citizen of the United States. That baby is part of the American people. Yet, even the most ardent advocates of the Second Amendment would typically have no objection to saying that the baby can be prohibited from keeping and bearing arms. We might debate about when exactly a child is safe to carry a gun, but I don’t think any appreciable number of second amendment advocates would object to a law saying you can’t legally hand a baby a gun as they leave their mother’s body.

So Barrett says:

Thus, I treat Kanter as falling within the scope of the Second Amendment and ask whether Congress and Wisconsin can nonetheless prevent him from possessing a gun.

Next, she has to talk about something Heller said that she disagreed with—and so did the majority in this case. Specifically, Heller said

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

To advocates of restrictions on Second Amendment rights, that sounds like a slam dunk. They would say ‘Even Justice Scalia himself said that felons could be prohibited from having a gun, and, therefore, that’s the end of the case!’

Well, not so fast. You see, if the reasoning is not vital to the outcome of the case, it is what lawyers call obiter dictum, or dictum, which means that it is just something said in passing and is not binding on future courts. 

(And yes, that leads many immature lawyers to joke ‘dictum? I hardly know him!’ And I am not an entirely mature lawyer.)

Moving on, as Barrett writes:

As we observed in Skoien, judicial opinions are not statutes, and we don't dissect them word-by-word as if they were. … Thus, I agree with the majority that Heller's dictum does not settle the question before us.

Citations omitted. So Barrett then tries to dissect how the Founders looked at the issue for herself. She starts by saying:

The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have not been able to identify any such laws.

She goes on to mention some proposals and finds some support for the notion that the legislature could disarm people it deemed dangerous—including slaves, native Americans and, in England, Catholics. Barrett doesn’t mention it here, but in the English Bill of Rights, guaranteed a right to keep arms, if you were a protestant. But because the English Bill of Rights was only a mere statute, my understanding is it has been basically written out of English law, so now Protestants, Catholics, Muslims, Buddhists, whatever, are equally denied their right to bear arms, which seems like the opposite of progress.

(I will note that she didn’t endorse those particular exclusions. Obviously as a practicing Catholic, and in the context of the First Amendment, she doesn’t think it is right for the law to disarm Catholics as a group, while I think she believes that disarming Native Americans was wrong, and the Thirteenth Amendment makes the slave exclusion moot. She is merely noting their existence.)

Thus, so far, nothing particularly impressive, but the advocates of across-the-board felon disarmament had a counter: Of course they didn’t disarm those felons back then, because they killed them. You don’t need to disarm a corpse, after all.

And, apparently, they would also just plain extinguish other essential rights by what Barrett called ‘civil death.’ But she didn’t find the evidence of that very strong:

The premise of this argument—that the states permanently extinguished the rights of felons, either by death or operation of law, in the eighteenth and nineteenth centuries—is shaky. While it accurately describes the punishment of felons at English common law, the American picture is far more complex.

The short version is it used to be that all felonies were punishable by death, but as it got close to the founding, the list of felonies expanded, but not all the new felonies were punishable by death.

Likewise, there was the deprivation of rights, without death, which she called ‘civil death.’ But the evidence she reviewed showed that this was done generally only if a person faced life in prison—which also wasn’t done with every felony.

And then she gets at a crucial point:

Even if it could be [shown that felons lost most rights even after leaving prison], though, one might reasonably ask: ‘So what?’ We wouldn't draw this inference from the severity of founding-era punishment in other contexts—for example, we wouldn't say that the state can deprive felons of the right to free speech because felons lost that right via execution at the time of the founding. The obvious point that the dead enjoy no rights does not tell us what the founding era generation would have understood about the rights of felons who lived, discharged their sentences, and returned to society.

I would add that many of the founders were actually, factually criminals under English law. Like for instance, George Washington was a traitor to the British crown. He wasn’t convicted but that’s because they never caught him, not because there is any reasonable doubt on the topic. And it’s kind of why we like him. If he had merely sat the Revolutionary War out and refused to take sides, he probably wouldn’t be seen as a hero to most rational Americans. It is an extreme example of how Americans were open to the idea that sometimes a criminal was still the good guy, and didn’t deserve criminal consequences at all, including disarmament.

(And so while Trump might end up being the first convicted criminal who was president, he wouldn’t be the first criminal who was president (if you pretend his conviction was valid)—and don’t even get me started on Andrew Jackson. That dude straight up murdered people.)

Finally, she reviews laws that deprived people of the right to vote and serve on juries and found them really unhelpful when it comes to the right to bear arms. I will note that the founders of the Fourteenth Amendment often said that the right to vote was almost as important as the right to bear arms.

So, her conclusion is that traditionally even if you are part of ‘the people’—and being a felon doesn’t suddenly mean you are no longer part of ‘the people’—’ [history] does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.’ But that’s not the end of the analysis. Congress can’t just say a group can be banned from carrying and call it a day:

The legislature must be able to justify its designation, and the rigor with which we review this justification ‘depends on `how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right.' … ‘Severe burdens on the core right of armed defense require a very strong public-interest justification and a close means-ends fit....’

That sounds a bit like it being narrowly tailored to serve a compelling purpose, the strict scrutiny test, except the language sounds looser than that. Still, she decided that the connection between the goal of keeping guns out of the hands of people who can’t handle guns safely and this felon ban just wasn’t close enough:

[The felon exclusion] includes everything from Kanter's offense, mail fraud, to selling pigs without a license in Massachusetts, redeeming large quantities of out-of-state bottle deposits in Michigan, and countless other state and federal offenses. See … also, e.g., 21 U.S.C. § 676 (violating the Federal Meat Inspection Act in certain ways); 18 U.S.C. § 1621 (committing perjury); Mass. Gen. Laws ch. 266, § 30A (shoplifting goods valued at $100). … These  … crimes, like many others captured by § 922(g), ‘rais[e] no particular suspicion that the convict is a threat to public safety.’ …  Put more colorfully, ‘It is hard to imagine how banning Martha Stewart or Enron's Andrew Fastow from possessing a gun furthers public safety.’

Many citations were omitted from that passage, but a few were left in to see what other examples she mentioned.

Of course, now I can’t help but imagine Martha Stewart applying her decorative craftswomanship to a gun and that makes me giggle.

She goes on to talk about whether or not being a non-violent felon makes a person inherently dangerous, discussing whether or not the statistical case can be made.

These statistics are entirely unhelpful, however, because they lump all nonviolent felons together—and while some nonviolent felons may be likely to misuse firearms, the characteristics that make them risky cannot be generalized to the whole class. For example, the characteristics of an individual convicted of a drug-related offense tell us little if anything about the tendency of an individual convicted of perjury—or, for that matter, mail fraud—to commit gun violence. The sheer diversity of crimes encompassed by these statutes makes it virtually impossible for the governments to show that banning all nonviolent felons from possessing guns is closely tailored to the goal of protecting the public safety.

In other words, she is open to the idea that drug users and/or dealers are more dangerous as a class than a guy who committed Medicaid fraud. She basically isn’t convinced that this conviction is strong evidence that he is dangerous.

She noted that because this is an ‘as applied’ challenge, the government could still prove somehow that Kanter is personally dangerous. An ‘as applied’ challenge means that the individual is not saying that the law in question is always unconstitutional, just that it cannot be constitutionally applied to him or her. So even if Barrett got her way and Kanter won the case, this didn’t mean that suddenly every felon could bear arms, or even everyone committed of mail fraud, could. It would only mean that Kanter would be allowed to bear arms again, and any person with a similarly nonviolent criminal history could apply to have their Second Amendment rights restored and have a decent chance of prevailing. Frankly, if Kanter had won, he would be wise to keep a copy of the order with him whenever he carried a gun.

So that dissenting opinion tells us something about how Barrett might approach the issue. For instance, if you take the case of Donald Trump I suspect that he would be allowed to have his gun rights restored, at least after he serves any kind of sentence any court might impose—and I say that not knowing how many convictions he might have when the dust settles. He could end up being convicted in four different trials. Or Trump might successfully get the current conviction vacated, leaving him with none—which would avoid the entire issue. But if we assume he is convicted in all four cases, and those convictions are upheld, none of those alleged offenses are violent.

There are two maneuvers that the government might use to try to get around that. First, if he is convicted of RICO in Georgia, then they might say that the category of people convicted of RICO is sufficiently violent, since RICO is basically an organized crime statute. You wouldn’t let Al Capone legally carry a gun, right? But, since you could theoretically be convicted of RICO without you or anyone in your criminal enterprise being violent, I’m not sure that argument would stick.

Second, they could try to argue that Trump is dangerous because he incited a riot on January 6, 2021. Never mind that I believe he didn’t commit incitement as a matter of law and the Colorado Supreme Court had to mislead the public in order to make that argument, I still would expect officials to try it.

As for Hunter Biden, he broke the law in order to get a gun, according to a Delaware jury. It might be reasoned that people who break the law to get a gun tend to be more violent. Further, since the jury had to find that he was basically a crackhead in order to find that he committed a criminal gun violation, that means that he was also essentially convicted of a drug offense. Barrett has suggested that she is at least open to the idea that even drug offenders that are non-violent are still too dangerous to have a gun.

You might also remember that I mentioned the limitation on people who have domestic restraining orders against them and I mentioned that the Supreme Court was considering these exact kinds of questions right now. Well, that would be in United States v. Rahimi, and it is pending before the Supreme Court right now. It involves whether or not a person subjected to a domestic restraining order should be banned from keeping a gun while the order is in effect.

And do you remember how I mentioned that Heller was an example of good facts, if you are a supporter of the Second Amendment? Well, if you support the Second Amendment, Rahimi presents really, really bad facts. 

According to the Fifth Circuit—which found in his favor—in February of 2020, he had a domestic restraining order entered against him after he allegedly assaulted his ex-girlfriend. And then this happened, according to the same court:

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual's residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver's car. On December 22, Rahimi shot at a constable's vehicle. On January 7, Rahimi fired multiple shots in the air after his friend's credit card was declined at a Whataburger restaurant.

(Footnote omitted.) So, the police ended up searching his home and found that he was possessing guns—a fact made obvious by the fact he used guns to shoot at people. You kind of need to possess a gun to shoot one. And Rahimi argued that the statute prohibiting people subjected to domestic restraining orders from having a gun was unconstitutional under Bruen.

I have taken the time to listen to the oral arguments in this case on the Oyez website and I will say this right now: Rahimi is going to lose. If I was a betting man, I would bet the house on that. I think it’s only a question of how much ‘bad law’ will come out of these epically bad facts. Not only is the court likely to believe that people with such domestic restraining orders cannot be trusted with a gun, Rahimi is the poster boy for that argument.

And I will note that Heller was what I would call an ‘activist lawyer’ case. I don’t say this in a derogatory manner—lawyers are allowed to have a cause they are activists in. It's judicial activism I don't like. But I have read articles that made it exceedingly clear that Dick Heller wasn’t chosen at random. Instead, lawyers who were seeking to change the law in D.C. looked for a situation with good facts. They wanted to win one for the Second Amendment.

By comparison, Rahimi was represented by a federal public defender’s office. I once worked as an intern in one of those offices, and, frankly, I was deeply impressed by the quality of representation you get. But it means that the lawyer didn’t pick the case carefully, seeking good facts: Instead, they represent everyone assigned to them. So, this was a case of the public defenders winning one for once and the facts reflect that. This is not a good case for Second Amendment supporters, but Public Defenders don’t get to pick and choose.

That all being said, my reading of the argument is that they were sensitive to the idea that these are bad facts, and conservatives on the Supreme Court (including Roberts) didn’t want to make bad law. So, a lot of the discussion seems to be aimed at how to find against Rahimi without making things too bad for someone more sympathetic, like Mr. Kanter.

The other problem is that Rahimi filed what is known as a facial challenge. Now, to be fair to him and his lawyers, an as applied challenge to this law is a dead end. It would be hard to argue that in this particular case, that Rahimi wasn’t too dangerous to legally posses a gun, because the court found he engaged in multiple gun crimes. But in a facial challenge, you have to argue that the provision in the law is never constitutionally applied to anyone, ever.

Yet, at the same time, I think that this provision dealing with domestic restraining orders can do a great deal of injustice to a great many of people. I have sat in family court sessions watching judges hand out domestic restraining orders like they were candy, considering shaky and ordinarily inadmissible evidence. And of course, none of those people on trial had a right to free counsel, and frankly, it can be difficult to defend yourself without one. I think the simple solution is that the statute should require that the government prove beyond a reasonable doubt that the hearing was carried out with due process—maybe even with a right to free counsel.

Overall, in oral argument, the government didn’t try to argue that Rahimi was no longer part of ‘the people.’ I think specifically the government was influenced by Barrett on this point. Instead, they argued that there were two categories of ‘the people’ who could still be excluded from having guns: criminals and people who were not responsible. The solicitor general (the government’s lawyer) took this comment from a line in Heller, which said that the Second Amendment

surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

So the government argued that convicted criminals were not law abiding, but there are many categories of people who might not have technically committed a crime, but could still be prohibited from carrying a gun—such as certain minors and people who were mentally ill—because they are not responsible.

And that led to some pushback from Barrett. She argued that this was mere dictum—an aside in the opinion. She argued that the court shouldn’t adopt that throwaway language as some kind of legal test. Instead, she looked at it more under the rubric of whether or not this is a category of people who are too dangerous to posses a gun. So that covers the mentally ill and minors, and yes, people who committed domestic violence. So, I am inclined to think that behind closed doors, she will push for her approach in her Kanter dissent to become the law of the land, or at least something similar to it.

Mind you, it is possible for Supreme Court Justice Barrett to disagree with Judge Barrett. For instance, someone might have brought new historical evidence to her attention that changes how she saw these issues. So, she could easily say ‘I used to see these things one way, but with new evidence, I see it a very different way.’ I haven’t reviewed all of the different briefs in this case, so I can’t say whether or not someone could have made that argument, but there you go.

As for the other justices, I took notes and I will share them now.

First, Clarence Thomas seemed to kind of needle the government. When the government was pushing for an irresponsibility standard, Thomas got them to say that improper storage of a gun might make a person irresponsible enough to deprive them of the right to bear arms. He also asked the government why they were no longer citing restrictions on gun ownership for Native Americans and slaves. The explanation is that they felt that this related to defining who were ‘the people’ in the Second Amendment and they decided that Rahimi was plainly still part of ‘the people,’ so those arguments were no longer relevant. Roberts joined in, saying that he wondered if people who speeded by driving more than 10 miles per hour over the speed limit would be subject to disarmament. The government said no, it had to be a sufficiently serious crime.

Alito was particularly concerned about what I mentioned—how courts just hand restraining orders out like candy. He focused on the due process issue (which is not technically part of the case), but also how these orders would often say things like ‘the respondent shall not rape the petitioner’ just as boiler plate, without any evidence that the person presented any kind of threat. As you might remember, the statute requires the order to fulfill at least one of these conditions:

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; …

And bear in mind, these restraining orders didn’t have to be triggered by alleged violence. That’s why I didn’t call them domestic violence restraining orders. Instead, the order could be triggered by nothing more than alleged harassment. So, you might have a situation where an ex-boyfriend keeps calling his ex-girlfriend at all hours of the day and night. They might be peaceful calls, he might be reading poetry to her, but it’s depriving her of sleep and the ex-girlfriend just wants a court to tell him to stop. But then the court might say, just as a boilerplate:

Do not contact the petitioner.

Do not go to her house at such-and-such address.

Do not assault or batter the petitioner.

Do not rape the petitioner.

… and so on, not because there is even a hint that he might do that, but the judge might think ‘why not? Why not just tell him not to do those things, anyway?’ And then the ex-boyfriend might not think to object because he doesn’t realize he might lose his right to bear arms, and he wasn’t planning to do things like assault or rape, anyway. And then without any evidence that he was even slightly violent, he might lose his right to bear arms.

Gorsuch on the other hand felt that these types of issues would be better brought up in an as applied challenge, but that this law easily passes a facial challenge, because there are definitely situations where it can apply under the Second Amendment. 

And I will take a moment to note that things can be very different if we are talking about the First Amendment. Under the First Amendment, a person can engage in expression that clearly isn’t protected by the law, but still challenge the law by saying that the law is written too broadly so that even if sometimes the law is applied validly, it covers too much expression that is protected. This is because the Courts don’t want such a law to create what they call a chilling effect, that makes people frightened to engage in protected expression and they recognize that ordinary people might be silent rather than go to the time and trouble of challenging such a law. I tend to think that the Second Amendment should be seen the same way—people shouldn’t be afraid to pick up a gun when they think they might need one to defend themselves and their families. And maybe someday the Supreme Court will agree with me, but we aren’t there, yet.

In any case, as I said earlier, I think there is almost no way Rahimi wins. The only question is whether or not the Second Amendment loses—and theoretically it might not lose at all. I will assume that all three liberal justices will vote to uphold this law with few qualms, but I also think none of the conservatives will say that the government can do whatever it wants. Gorsuch seems to be pushing for the idea that since this is a facial challenge, they can literally say, ‘he loses, because holy schnikes this guy should not have had a gun!’ and literally refuse to explain themselves further. I mean, they would use more legalistic language than that, but hopefully you get what I mean. And Gorsuch might get his way.

I suspect that any majority opinion might at least cast doubt on the idea that a restraining order that doesn’t include a finding of dangerousness is sufficient. Further, Barrett seems to be likely to push for a dangerousness approach overall and I feel like there was a lot of sympathy for that approach, although I can’t prove that. Roberts certainly seemed sympathetic to that, and Thomas didn’t seem to like the idea of losing your right to bear arms because the government thought you didn’t store your guns properly. Likewise, they might allude to the concerns about due process without saying it is directly relevant here. Indeed, knowing Roberts, he will probably push for an opinion that says as little as possible. Or the six conservatives might come together to make an opinion where Rahimi loses, but they give detailed guidance on how similar issues should be approached in the future. If they do, I suspect Barrett will have a strong influence on it.

In any case, we might know the answer to that question as earlier as 10 a.m. today. Today and tomorrow are opinion days at the Supreme Court and Rahimi is one the cases still pending, and whatever opinions that will be released will be released at 10 in the morning. But I would advise anyone watching not to pay attention to the question of whether or not Rahimi loses. I feel about as certain as I can that he will lose. Rather the question will be what the court says when it says he loses. That could impact other cases, so that is what you need to be paying attention to.

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