Category: Rights

Second Amendment Roundup: Concessions by the Government in the Rahimi Oral Argument
Misdemeanants don’t fall within the “not law-abiding” category.

In the November 7 oral argument in U.S. v. Rahimi, the government conceded the fundamental difference between felonies and misdemeanors, which criminal defense and pro-gun attorneys will find useful.  Also, direct references were made by some Justices to the issue of non-violent felons who are not dangerous.  And on the separate state-law issue of whether administrative officials may have discretion to deny the right to bear arms, the government conceded that they do not.

Recall that under N.Y. State Rifle & Pistol Ass’n v. Bruen, a person who is among “the people” has Second Amendment rights, and conduct covered by the plain text of that Amendment is presumptively protected unless the state can satisfy its burden (yes, it’s the government’s burden) to demonstrate that the current gun control regulation is similar to valid historical analogue laws. In Rahimi, the issue is whether any Founding-era analogue laws exist to justify the federal gun ban against persons under a domestic violence restraining order (DVRO).

To uphold the ban, the government relies on laws that punished affrays, including the brandishing of weapons to terrify others, and laws that required persons who did so to find sureties to keep the peace.  Such laws are not “historical twins” to today’s DVRO laws but are argued to be close enough.

A significant concession arising in the arguments would have jumped out at any member of the criminal defense bar, although it was not on the exact issue before the Court. The United States had argued in its briefs that persons who are not “law-abiding, responsible citizens” may be disarmed. Solicitor General Elizabeth Prelogar began her argument by saying that not being “law-abiding” means having “committed serious crimes defined by the felony-level punishment that can attach to those crimes.”  Not being “responsible” “applies to those whose possession of firearms would pose an unusual danger.”

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A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit
Courts are “not insensitive to domestic violence” but are “sensitive to the constitutional rights of the accused.

The conventional wisdom is that the Supreme Court will certainly reverse the Fifth Circuit in Rahimi. Indeed I’ve voiced that position myself several times, especially in light of a potential grant in Range. (The New York Times picked up Justice Barrett’s question). But let me challenge that conventional wisdom: an opinion reversing Rahimi will be tougher to write than most critics will admit.

Let’s start with a premise: Rahimi was a faithful application of Bruen. Efforts to “clarify” Bruen are really an attempt to rewrite the precedent. I don’t think anyone seriously doubts this premise. Now the reason why the Court may “clarify” Bruen is because certain members of the Court don’t like the results that it yields: namely, that a dangerous person like Rahimi can possess a firearm. Again, the correctness of the Bruen precedent should be able to stand without regard to how it may be applied in future cases. But that’s where we are. Some members of the Court who profess to be originalists are still motivated by consequentialism. And these concerns came out loud and clear during oral argument.

Still, there is a long time between November and June. A majority opinion has to be written. And that opinion will have to navigate an issue that didn’t get much attention during oral argument: what other constitutional rights should dangerous people lose? Certainly this case can’t just be about guns.

One of my first published articles, The Constitutionality of Social Cost, was published in the Harvard Journal of Law & Public Policy in 2011. I had started thinking about the topic in 2009, before McDonald v. Chicago was decided. The basic premise of my article was that there are many dangerous rights, and the Second Amendment was not an outlier. Here is a snippet from the introduction:

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities.

The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished.

Likewise, a violation of a person’s Miranda rights renders certain confessions—even an uncoerced inculpatory confession—inadmissible. Procedural rights during the criminal trial—including the right to grand jury indictment, the right against self‐incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury—all make the prosecution of culpable defendants significantly harder.

The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non‐excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial.

The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be detained indefinitely without proper procedures.

Liberty’s harm to society takes many forms—not just from the exercise of the right to keep and bear arms. These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

Not much has changed since I wrote these words more than a decade ago. The Supreme Court, often with lopsided majorities, protects the constitutional rights of very dangerous people. Yet when it comes to the Second Amendment, it’s as if all of these precedents vanish.

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And on the other hand, there’s a subset of people who understand that when SCOTUS restores fundamental rights as they should be, they follow right along, like they should.
Now, I don’t advise cheating Uncle, or driving while intoxicated, but goobermint needs to stop with restricting rights by any piddly means it can devise.

Judge Nixes Lifetime Gun Ban for Non-Violent Misdemeanor Offense

In a case very reminiscent of Range v. Garland, in which the Third Circuit Court of Appeals ruled that Bryan Range’s conviction for lying about his income on a food stamp application decades ago should not have resulted in a lifetime prohibition on keeping or bearing arms, a federal judge in Pennsylvania has ruled that a man’s 2005 DUI arrest and conviction on misdemeanor charges cannot disqualify him from exercising his Second Amendment rights.

Though Edward Williams was convicted of a misdemeanor offense, it was also a crime punishable by up to five years in prison. Williams didn’t serve any time behind bars, however. Instead, he was sentenced to 90 days of house arrest and ordered to receive treatment for drug and alcohol abuse. Since the potential sentence was more than a year in prison, however, the misdemeanor conviction meant that Williams was considered a prohibited person going forward, and he was no longer allowed to possess or purchase a firearm.

Williams first tried challenging the statute in question back in 2017 and was denied, but applied for a re-hearing after the Supreme Court issued its decision in Bruen last year. This time around, in a case argued by 2A attorney Joshua Prince and supported by the Firearms Policy Coalition,  U.S. District Judge John M. Younge applied the Court’s text, history, and tradition test to the Williams case, as well as the Third Circuit’s decision in Range v. Garland, and found that Williams cannot be denied access to his right to keep and bear arms as a result of a non-violent misdemeanor conviction, even if it was punishable by years behind bars.

The Government has not met its burden in proving that the prohibition on Plaintiff’s possession of a firearm due to his DUI conviction is consistent with historical firearms regulations.

Finding a historical tradition of similar firearms regulations “requires that the government identify a well-established and representative historical analogue, not a historical twin.”

A modern regulation that would not have been contemplated during the Founding Era can be found relevantly similar to then-existing regulations by considering “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.

That federal law has, over the past century, allowed for the disarmament of certain types of convicted criminals does not satisfy the constitutional issues raised by applying Section 922(g)(1) to all convictions punishable by more than a year of imprisonment.

Instead, the Court must consider more longstanding limitations on firearm possession to “demarcat[e] the scope of [the] constitutional right.”

The historical firearms regulations provided by the Government are not sufficiently analogous to the case considered here to satisfy its burden.

Younge noted that while he remains “quite concerned about the prospect of granting access to firearms to persons who have demonstrably abused alcohol”, he remains unconvinced that “the general dangerousness of drunk driving and of combining firearm use and alcohol consumption establishes that DUIs must therefore be considered sufficiently analogous to historical examples of ‘dangerous’ conduct that have previously served as grounds for disarmament.”

Younge acknowledged the government’s citing of laws that prohibited the carrying of firearms while intoxicated, but argued that none of those regulations “allude to disarmament lasting beyond the individual’s state of intoxication, and none provided for permanent disarmament, as Section 922(g)(1) does.”

I agree with Younge that drunk driving is a serious concern, and not something that should be easily dismissed, but the fact is that Williams wasn’t barred forevermore from getting behind the wheel of a car because of his misdemeanor conviction. He can obtain a driver’s license and purchase a vehicle despite his DUI conviction that’s now nearly 20 years old, but he can’t legally purchase or possess a firearm. That’s a punishment that doesn’t fit the crime, as far as I’m concerned.

I’m sure the DOJ will appeal this case to the Third Circuit, but given their decision in Range it’s unlikely that Merrick Garland is going to get the response he’s looking for from the appellate court. By the time Williams v. Garland gets to SCOTUS the justices will have had a chance to weigh in on Bryan Range’s case, and if the Court does adopt a “dangerousness” standard for depriving individuals of their Second Amendment rights in Rahimi, then both Range and Williams have an excellent chance of having the lower court decisions in their favor approved by a majority of Supreme Court justices as well.

Supreme Court Roundup: Not all History is Created Equal

In a previous post, I wrote about the attempt by Merrick Garland’s Justice Department in United States v. Rahimi, set to be argued before the Supreme Court on November 7, to sidestep the controlling “text and history” interpretative methodology described in District of Columbia v. Heller and in New York State Rifle & Pistol Ass’n v. Bruen. Rahimi is the case challenging the facial constitutionality of 18 U.S.C § 922(g)(8), a federal statute that disarms any individual subject to a state domestic violence restraining order (DVRO). In that post, I explained how the Government is contending, contrary to Bruen, that the established rule is that “Congress may disarm persons who are not ‘law-abiding, responsible citizens.'” That statement is not just incorrect, but a serious distortion of what Heller actually said.

As it turns out, the Government’s recently filed reply brief contains several other important errors about the fundamental principles to be applied when assessing historical analogue laws, which are central to Bruen‘s methodology.  Let’s start with an easy one.  The Government takes Rahimi to task for allegedly asserting that Bruen limits courts to historical evidence from “near the time of ratification.” Here’s what Rahimi’s brief actually said, after discussing attempts by some courts to boost some dicta in Heller to the level of substantive constitutional law:

[T]he original meaning of the Second Amendment must be determined exclusively using the text and the historical tradition of firearm regulations adopted near the time of ratification—not with assumptions or dicta. 

That statement by Rahimi was contrasting the use of actual historical traditions to determine the meaning of the Second Amendment, as opposed to twenty-first century dicta, or assumptions by lower courts regarding what those dicta meant. It was not an attempt to fine tune the period of time with precision.

Yet Rahimi is correct that the time around the adoption of the Bill of Rights must be the principal period to determine the original public meaning of its provisions.  Bruen quoted Heller to the effect that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them,” before noting that “The Second Amendment was adopted in 1791….”

The Bruen opinion also quoted approvingly a dissent by then-Judge Kavanaugh: “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” The six-person Bruen majority also relied on a dissenting statement by Chief Justice Roberts, in Sprint Communications v. APCC Services (2008), that “The belated innovations of the mid- to late-19th-century courts come too late to provide insight into the meaning of [the Constitution in 1787].” The same is true of the Bill of Rights, adopted in 1791.

The Government claims in its brief that “the Court has consulted post-ratification evidence—extending ‘through the end of the 19th century’—’to determine the public understanding of’ the Amendment.” But as Bruen notes, another case made clear that this evidence was reviewed “only after surveying what [the Court] regarded as a wealth of authority for its reading—including the text of the Second Amendment and state constitutions.” Bruen continues, “In other words, this 19th-century evidence was ‘treated as mere confirmation of what the Court thought had already been established.'” See also Justice Barrett’s concurrence in Bruen, quoting Espinoza v. Montana Dept. of Revenue (2020) (a practice that “arose in the second half of the 19th century … cannot by itself establish an early American tradition” informing our understanding of the First Amendment); Mark W. Smith, Attention Originalists: The Second Amendment Was Adopted in 1791, not 1868, Harvard Journal of Law & Public Policy Per Curiam (Fall 2022).

So Rahimi is right.  A court must look principally to the Founding era to determine the meaning of the Second Amendment.  It can look at later evidence only for confirmation, not to change the original understanding.

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