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A Deep Dive Into Today's Supreme Court Ruling on the Second Amendment

Meme

Today was opinion day at the Supreme Court and easily the most newsworthy case was U.S. v. Rahimi, which dealt with whether or not a person subject to a domestic restraining order could be prevented from possessing a firearm while the order was in effect. Professor Turley announced the decision (and provided a link to it):

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Regular readers might know about the Rahimi case. This author wrote a deep dive talking about how the law of the Second Amendment is likely to evolve under New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2111 (2022), and looking to a degree at this case. 

In that piece, we referenced the old lawyer’s saying that ‘bad facts make bad law, good facts make good law’ and we noted that the facts in Rahimi were about as bad for advocates of gun freedom as they get. Let’s quote a good chunk of the opinion where those facts are discussed:

In December 2019, Rahimi met his girlfriend, C. M., for lunch in a parking lot. C. M. is also the mother of Rahimi’s young child, A. R. During the meal, Rahimi and C. M. began arguing, and Rahimi became enraged. … C. M. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard. When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the passenger seat. C. M. took advantage of the opportunity to escape. Rahimi fired as she fled, although it is unclear whether he was aiming at C. M. or the witness. Rahimi later called C. M. and warned that he would shoot her if she reported the incident.

(Citations omitted.) She got a restraining order against him. He didn’t contest her testimony and he agreed to the order, which said that he committed ‘family violence’ against her and was likely to do it again in the future. He was alleged to have non-violently violated that order by contacting her and attempted to contact her (these orders almost always prohibit contact). Then things get even worse for our side:

In November, Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings. The first, which occurred in December 2020, arose from Rahimi’s dealing in illegal drugs. After one of his customers ‘started talking trash,’ Rahimi drove to the man’s home and shot into it. … While driving the next day, Rahimi collided with another car, exited his vehicle, and proceeded to shoot at the other car. Three days later, he fired his gun in the air while driving through a residential neighborhood. A few weeks after that, Rahimi was speeding on a highway near Arlington, Texas, when a truck flashed its lights at him. Rahimi hit the brakes and cut across traffic to chase the truck. Once off the highway, he fired several times toward the truck and a nearby car before fleeing. Two weeks after that, Rahimi and a friend were dining at a roadside burger restaurant. When the restaurant declined his friend’s credit card, Rahimi pulled a gun and shot into the air.

(Citations omitted.) Yeesh, he’s almost like a real-life Yosemite Sam.

The police got a warrant on his home and found some guns. All of this violates 18 U.S.C. § 922(g)(8) which prohibits a person subject to certain domestic restraining orders from basically having a gun. 

You will notice that we didn’t say the term "domestic violence restraining orders." While in Rahimi’s case, it was definitely a domestic violence restraining order, § 922(g)(8) can be triggered by mere harassment, which typically is interpreted to include peaceful but unwanted contact. In our prior piece, we gave the example of a man calling an ex-girlfriend at all hours of the day and night, but every call itself being non-threatening and otherwise peaceful. That is likely to violate many states’ anti-harassment laws, and yet it doesn’t relate to violence in any meaningful way.

And the procedural posture of this case is important, too. Rahimi was posing a ‘facial’ challenge to this law. Justice Kavanaugh, writing separately, sums up what that means pretty well:

Mr. Rahimi pursues the ‘most difficult challenge to mount successfully’: a facial challenge. He contends that 18 U. S. C. §922(g)(8) violates the Second Amendment ‘in all its applications.’ … To prevail, he must show ‘no set of circumstances’ exists in which that law can be applied without violating the Second Amendment.

 (Citations omitted.) As we said in our prior piece:

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.

While the Opinion of the Court didn’t use any language as colorful as ‘poster boy’, we think it  was saying pretty much the same thing when the Court said that: ‘And here the provision is constitutional as applied to the facts of Rahimi’s own case.’ 

We also made the point that whether or not Rahimi lost really isn’t what we should be watching for:

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.

In that context, this author was very pleased when he found out that it was a Roberts opinion. Roberts is not our favorite justice—this author would probably call him our least favorite conservative presently on the court—but he has a habit of trying to say as little as possible when making a decision. For instance, he argued in a concurrence in Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022)—the decision that overturned Roe v. Wade—that rather than saying they were overturning Roe, the majority should have only upheld the abortion restrictions in that case and … somehow not explain if Roe is still the law of the land? We found that suggestion baffling and we thought he took that instinct to say as little as possible too far in Dobbs.

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But here, we figured that instinct to say very little would serve us well and we were right. This is the basic holding of the court:

When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect.

That leaves more questions than answers and we think that was Roberts’ goal. And contrary to some commentators, we are glad he did that because again, bad facts make bad law.

For instance, what if the order was a lifetime ban? Would that be constitutional? We don’t know.

What if the order didn’t find that the person was dangerous, but merely prohibited him from committing violent acts? We don’t know.

What if the order was issued in a manner that was unfair, possibly in violation of the Fifth Amendment? We don’t know.

So, it is pretty tightly tied to the facts in this case. The big question in this case is this: What exceptions exist in the Second Amendment’s right to bear arms. We hear some advocates of the Second Amendment say that there can be no exceptions, citing the ‘shall not be infringed’ language. Whatever you think of that question personally, that just isn’t how the Supreme Court treats the rights in the Constitution. For instance, the First Amendment says 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So ‘no law … abridging the freedom of speech’ but courts have long held that many forms of speech can be subject to criminal and civil penalties, the easiest example being threats. While the Supreme Court has said that what counts as a threat is pretty narrow, if you say in earnest ‘I am going to kill you,’ you can be thrown into prison for that, even though you would only be going to prison because of your words. Most of the rights in our Constitution have exceptions, at least as the Supreme Court has interpreted them.

So, the Supreme Court writes:

In Bruen, we directed courts to examine our ‘historical tradition of firearm regulation’ to help delineate the contours of the right. We explained that if a challenged regulation fits within that tradition, it is lawful under the Second Amendment. We also clarified that when the Government regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it bears the burden to ‘justify its regulation.’

Thus, the idea is that certain restrictions are traditional to the Second Amendment, just like they are to the First, in the sense that the founders themselves thought the right didn’t apply in certain cases. Frankly, all nine justices agreed on this point. And all nine justices agreed that the current restriction doesn’t have to be identical to a founding-era restriction. They only disagreed about how close it has to be to traditional restraints. The majority found historical examples of courts temporarily restricting people they found to be dangerous from bearing arms, so they were willing to say that people subject to domestic restraining orders that found that the person was dangerous was enough.

In any case, there were plenty of reactions and we are going to focus mainly on what we consider learned analysis.

The cut off text reads:

‘When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.’

8-1 case. 

ROBERTS, C. J., delivered the opinion for the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. GORSUCH, J., KAVANAUGH, J., BARRETT, J., and JACKSON, J., filed concurring opinions. THOMAS, J., filed a dissenting opinion.

Getting my toddler breakfast, then we begin

Personally, we would prefer they did this in a case with better facts.

This is a significant issue potentially in the future. A domestic restraining order can trigger this provision if it:

(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; …

This case literally only dealt with the first situation but not the second. As we said in that prior post:

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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. … 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.

So, Mr. Moros is reasonably annoyed that the Supreme Court didn’t discuss this problem, but it’s the nature of the beast. In a facial challenge like this, the Court only asks if the law is constitutional in any situation and Rahimi is pretty much the poster boy for this law. But we would add that he seems to be more annoyed that they didn't find a case that would answer this question on better facts.

The cut off text reads:

Sure, domestic abuse was too tolerated then, but as @AnnaBarvirBoone discussed in her amicus brief on behalf of CRPA, that had already begun to change. The Court touches on that here.

‘Kanter’ in this case refers to Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), a case involving whether a person convicted of mail fraud could be banned for life from possessing a gun. The majority said yes, but that case was repudiated by the Supreme Court in Bruen. But the more interesting opinion is the dissent, which was written by then-circuit-judge Barrett. That dissent was the major focus of our piece the other day, and we quoted her as saying:

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.

She would have let Kanter have his gun back. But Moros is discussing the linguistic similarity between what Barrett said and Roberts said. If Moros thinks that is some kind of slight against her, we’re not so sure. Barrett was writing much more broadly than Roberts was. Barrett was dealing with categories of people the legislature thought were dangerous, while Roberts was dealing with specific people found to be dangerous by courts. We think he couldn’t actually quote her words, but merely alluded to them, and we suspect that this was simply a nod to her opinion, without saying whether Roberts agrees with her or not. Again, Roberts tries not to say very much when he writes an opinion.

And Barrett joined that opinion, although she did write a concurrence that cited that exact same language from the same dissent in Kanter.

Moving on:

The cut off text reads:

It looks like they need to decide Range then to start determining the extent of the legislatures' ability to ban certain categories of persons from possession?

We think we don’t think they said anything about legislative findings of dangerousness at all. They basically treated the federal restriction as a criminal law enforcing court orders and nothing more.

Yes, they can’t take your guns away because they merely think you are irresponsible. You have to be positively dangerous.

Honestly, we struggled to understand the point of many of the concurrences by the conservatives. On the other hand, the point of the liberal concurrences was pretty clear: They would definitely overturn Bruen if they could. Probably District of Columbia v. Heller, 554 U.S. 570 (2008), too. We might even suspect that they are implicitly saying 'vote for Biden, so we can overturn those cases.'

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Moros should have listened to our analysis of the case that we wrote after he wrote his thread. Shame on him for not being psychic!

The cut off text reads:

Even this concurrence seems to accept the premise of the individual right as a starting point.

Bluntly, we still think the liberals would overturn Heller if they had the chance and probably say that the Second Amendment is only a ‘collective right’ that has no actual teeth. Never mind that the concept of a collective right was completely alien to the thinking of the founders but we digress.

The cut off text reads:

That's not to say I am thrilled with some of the loosening present in the majority opinion, but commentary is already getting way too doomer-y.

Seriously, we don’t think this was a disaster for Second Amendment advocates. It is about as good as we could expect an opinion to be, where Rahimi himself loses.

‘Cert grant’ is referring to the process by which the Court decides to take certain appeals. They don’t take every case that exists or deserves it—they don’t have enough time to do that.

Well, unless Joe Biden or another Democrat is president from 2025-2029. As we have pointed out before, the oldest two justices on the Supreme Court are Alito and Thomas and if they both left the court in the next few years and they were replaced by liberals, we would effectively lose the First and Second Amendments. 

Seriously, we struggled to see why he was doing this.

The cut off text reads:

However, I think it continues to be true, as Bruen says, that if a particular problem DID exist in the past, and it was solved through very different means, then the challenged modern law is not supported by historical tradition. Legislatures may not have maximally exercised their power, but if they exercised their power in different ways when the modern ‘solution’ would have been an obvious possibility to them, it probably means they saw that solution as unconstitutional. 

To use the most extreme example to illustrate the point, violence with firearms and other weapons was a societal problem back then too. But they didn't ban guns for everyone, which would be an obvious (and obviously unconstitutional) solution. Instead, they disarmed dangerous people.

One of the reasons why the Supreme Court might overturn a decision is because it sets up an unworkable standard. Moros is basically saying that the only problem with the standard is bad faith applications of it and we agree.

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The cut off text reads:

And when you back all sorts of ‘rights’ that have no basis in our history, as Jackson does, sneering about ‘unearthed’ new rights is probably not a great call.

When leftists talk about the Constitution, we often mockingly ask them ‘which Constitution are we talking about? The one that has a right to keep and bear arms in it, or the one that has a right to an abortion in it?’ Most leftists have no devotion to the actual Constitution, just a fake Constitution summoned from the ether.

The cut off text:

This is basic legal analysis, especially given that the government is the one presenting the history, courts need not research it themselves (though many have taken to doing so).

This is a constant trope of liberal justices and legal theorists. They argue that historical analysis is hard, and therefore courts shouldn’t bother with it. But historical analysis is absolutely necessary to understand what the Constitution means. For instance, here’s a simple example. In Article IV, Section 4, it says:

The United States shall guarantee to every State in this Union a Republican Form of Government

ERMAGAWD!!! That means that the Constitution makes it so that every state has to be run by the Republican party! The Democrats, the libertarians, and so on are banned, at least in state government, right?

Well, the answer is an obvious ‘no.’ But it only becomes clear that they weren’t referring to the Republican Party if you insert a little historical knowledge, which tells you that there were no political parties at the moment that text was written, so it was impossible for them to have been referring to a particular political party. They meant ‘Republican’ in the sense of the type of government. But you can only know this if you actually look at history.

On to Clarence ‘The Hammer’ Thomas and his dissent:

The cut off text:

I'd like to see more discussion on where the line is, because if he is insisting on only near-identical laws, it's not surprising no one joined this dissent. 

That's not to say he doesn't have a point about the very different burdens imposed by the surety laws compared to the modern law, and the majority should have addressed that head on.

We’re sure that the left will claim that this dissent proves Thomas is actually corrupt, but if someone literally bribed him to say this because they love them some guns, they’re not getting their money’s worth. It would have been better for Thomas to agree with the majority and nudge them in a direction he prefers. We see Jackson doing that constantly, although without much success. The majority will be read carefully for guidance in the future. The concurrences will be read for guidance, but to a lesser degree. Thomas’ opinion, meanwhile, will barely be read at all in the foreseeable future.

The only reason for Thomas to write this is because he really thinks this, and maybe hopes that a few decades from now, people will come around to his way of thinking.

Well, duh.

We previously noted that he was needling the government’s lawyer in oral argument on this topic.

And that was it for Mr. Moros.

Moving on to other scholarly opinions, Mr. Smith makes a similar point to us:

The cut off text:

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They were never going to rule that the entirety of 922g8 was unconstitutional in a very-hard to satisfy Facial Challenge. Nor would they let Mr. Rahimi have guns given his record and admissions on the record after a judicial hearing. Merrick Garland/Biden knew this, which is why the expedited the case to SCOTUS ahead of all other 2A cases (Think: non-violent felon case of Range). Thus, in the real world (and not in my fantasy, perfect world), I think that so long as Team 2A prevented Garland/Biden from destroying the Bruen ‘text first, history second’ methodology, it is a win. Sometimes ‘losing less badly’ in a war has to be treated as a win.

We are not aware what this Range case is. He also wrote this:

The cut off text:

To begin, the holding is what I predicted, i.e., if you are found by a court after a hearing to constitute a PHYSICALLY-violent danger to others, then you can be disarmed. This was an exceedingly narrow opinion that adhered to Bruen's methodology, and decided only that under 2A, individuals found to be a threat of physical violence after a judicial proceeding can be disarmed for only a temporary period of time.

I think that overall, the 2nd Amendment community should be pleased because the Bruen methodology survived Merrick Garland's attempt to destroy it with a case involving a bad dude with bad facts. Garland/Biden failed big time on that front so that's a major 2A victory. 

The positives in the Court's opinion include it (a) maintains the Bruen methodology of ‘text first, history second’, which means that no ‘gun violence bad’ interest balancing arguments are allowed in 2A cases; (b) implicitly finds that Rahimi is textually part of ‘the People’; (c) reminds all that the burden is on the GOVERNMENT to prove with history that there is a historically-analogue law; (d) notes that due process will be a big question going forward about what is allowed--noting that Rahimi himself did not argue due process; and (e) wiped out the government's longstanding argument that Americans can be disarmed if they are not ‘responsible’. which will be very good for future permits and licensing fights with CCW licensing authorities.  A LOT MORE TO COME.

We get another view, from a ‘senior VP of the Cato Institute’ and general radical libertarian:

There doesn’t seem to be a 7th post (common error) so we jump ahead one:

We also get some quick analysis from Eugene Volokh:

We will highlight only some of his points, such as that basically the Supreme Court said that Red Flag laws can be constitutional, if written properly:

[2.] The majority opinion is likely to add force to arguments for the constitutionality of so-called ‘red flag’ laws, which empower courts to order seizure of firearms from people when there is sufficient specific, articulable evidence that those people are dangerous (generally for mental-health-related reasons). Of course, much will depend on the details of the particular laws.

He also notes that this doesn’t say all restraining orders can automatically disarm a person, basically honing in on the harassment provision and pointing out how harassment statutes have been abused:

Courts have sometimes issued such harassment restraining orders based just on repeated online public criticism, or other offensive speech, with no findings of ‘credible threat to the physical safety of others.’ (See the recent post on Adams v. Gulley, California Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial.) And California law categorically mandates that ‘The court shall order a person subject to a protective order issued pursuant to this section to relinquish any firearms’ (as indeed happened in Adams v. Gulley). Such orders, issued in the absence of any finding of threat to physical safety, should remain challengeable under the Second Amendment.

And this might be bad news for Trump getting his Second Amendment rights back if his current convictions are upheld:

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[4.] The majority repeated Heller’s statement that ‘prohibitions … on the possession of firearms by ‘felons and the mentally ill’[] are ‘presumptively lawful’’; Justice Kavanaugh’s concurrence did the same, though Justice Thomas’s dissent noted that this statement in Heller was ‘dictum.’ This suggests that the Court remains generally open to those restrictions, even though it turns out such restrictions actually lack a long historical pedigree.

And he got really into the legal nerd weeds with this point:

[5.] The Court expressly declined to resolve whether the most relevant history is as of 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment, which has been read as applying the Second Amendment to the states, was ratified)

He also quotes Thomas to show that he isn’t saying that people who threaten others can’t be disarmed:

This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution.

The people saying Thomas would let Rahimi have a gun are wrong. Thomas would want Rahimi prosecuted for his threat to his ex and for assaulting her. We feel pretty confident in saying that Thomas would be willing to take away guns from people who previously unlawfully shot at others.

Finally, one more scholar:

People keep saying that, but if this author represented Hunter Biden we would probably say something like this to him.

The Supreme Court has not completely demolished your argument that you should have been allowed to carry even if you were basically a crackhead at the time you had the gun, but the narrow is very thin and I don’t think you’re likely to win. So, I’m not sure it is a good investment to pay me to keep pushing this argument.

But, hey, if you want to try anyway, I am happy to take your money!

And yes, we probably would use the word ‘crackhead’ to his face. We believe in being pretty brutally honest with our clients, in private discussions, so they aren’t shocked when other people are equally honest with them.

Honestly, this author is pretty much a law geek and our eyes were glazing over.

Finally let’s take a big picture look at this. This author is a pretty radical defender of the Second Amendment and gun freedom. We believe the Second Amendment is a corollary to the natural right of revolution enunciated in the Declaration of Independence. The right of revolution is not (typically) a legal right, but a natural or moral right of people who are oppressed to resist that oppression by force if necessary. We think that the American Revolution, the rebellion led by William Wallace and Robert the Bruce in Scotland, the revolution that created the state of Israel, and pretty much every slave revolt was justified, morally, if not legally—and that is not an exhaustive list of justified rebellions. We even like the rebellion against the Confederacy depicted in the movie ‘The Free State of Jones.’ We think one of the major purposes of the Second Amendment is to give the American people the ability to resist tyranny, should it arise in America.

And to answer a common leftist talking point, we are not saying we need to rebel right now. We are saying that someday tyranny might arise in America in the future and at that point, we will need to rebel. We frankly don’t think it is likely to happen in this author’s lifetime, but it’s strange that many of the same people who constantly claim Trump wants to be a dictator want the same man to have the power to take away their ability to resist a dictator.

Consequently, we believe in the right to bear machine guns, rocket launchers, tanks, howitzers and so on—pretty much all conventional weapons of war. In terms of age limits we tend to think that if a person was young enough to bear arms during the Revolutionary War, they can bear arms under the Second Amendment. Indeed, one criticism we have of the Supreme Court’s approach in these cases is they don’t talk enough about the Revolutionary War and its influence on the Founders’ desire to protect the right to keep and bear arms.

So, we are frankly more radical than the Supreme Court on this topic, but we never thought for one moment they would have said that people who committed domestic violence could just keep their guns. Agree or disagree, it wasn’t going to happen with this Supreme Court. So with Rahimi’s loss today being a given, we think this is about as much a Second Amendment supporter could hope for.

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