Category: RKBA

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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