I’m disappointed, but not surprised, that the justices weaseled out of their prior case law. Goobermints never have been enthusiastic, at all, about citizen’s possessing the means to ‘grow’ the political power to confront it.

In Dissent, Thomas Warns Rahimi Decision ‘Puts at Risk’ 2A Rights of More Americans

The 8-1 decision in Rahimi upholding Zachey Rahimi’s conviction for possessing a firearm while subject to a domestic violence restraining order is a fairly narrow opinion in many ways. As Justice Neil Gorsuch noted in his concurring opinion (we’ll have more to come on that opinion and the other concurrence), the ruling does not address lifetime bans on gun possession for those convicted of felonies or misdemeanors punishable by more than a year in prison, “whether the government may disarm a person without a judicial finding that he poses a ‘credible threat’ to another’s physical safety,” or the constitutionality of “other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, ‘not ‘responsible.’”

But the lone dissenter in Rahimi still believes that the decision still opens the door for those types of bans to be upheld. Justice Clarence Thomas, writing for a minority of one, held that the government failed to show any historical statute or tradition that was materially similar to the modern prohibition on gun possession for those subject to a domestic violence restraining order. While Chief Justice John Roberts, writing for the majority, cited surety laws and statutes against “affray”, Thomas says those laws are substantially different from Section 922(g)(8) and don’t pass the “history, text, and tradition” test spelled out in Bruen.

The Court recognizes that surety and affray laws on their own are not enough. So it takes pieces from each to stitch together an analogue for §922(g)(8). Our precedents foreclose that approach.

The question before us is whether a single historical law has both a comparable burden and justification as §922(g)(8), not whether several laws can be cobbled together to qualify.

As Bruen explained, “determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations”— the historical and modern regulations—“are ‘relevantly similar.’”

In doing so, a court must consider whether that single historical regulation “impose[s] a comparable burden on the right of armed self defense and whether that burden is comparably justified.”

Surety laws didn’t prohibit those subject to them from possessing or (in many cases) bearing arms. Instead, it required them to post a bond before they could do so. And affray laws, as Thomas pointed out, “were criminal statutes that penalized past behavior, whereas §922(g)(8) is triggered by a civil restraining order that seeks to prevent future behavior.”

Thomas went on to say that the “mixing and matching” of historical laws that rely on one law’s burden and another law’s justification “defeats the purpose of a historical inquiry altogether.”

Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of “regulatory blank check” that Bruen warns against and the American people ratified the Second Amendment to preclude.

Second Amendment attorney Kostas Moros also sees danger in the analogues accepted by the Court, which he says is likely to lead to lower courts upholding gun control laws based on even more dissimilar statutes from history.

Thomas did acknowledge and agree with the majority’s rejection of the DOJ’s contention that the Second Amendment can only be exercised by “responsible” citizens, but warned that today’s decision will weaken the history, text, and tradition test.

The Court rightly rejects the Government’s approach by concluding that any modern regulation must be justified by specific historical regulations. But, the Court should remain wary of any theory in the future that would exchange the Second Amendment’s boundary line— “the right of the people to keep and bear Arms, shall not be infringed”—for vague (and dubious) principles with contours defined by whoever happens to be in power.

… The Framers and ratifying public understood “that the right to keep and bear arms was essential to the preservation of liberty.” McDonald, 561 U. S., at 858 (THOMAS, J.,concurring in part and concurring in judgment). Yet, in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more.

I suspect Thomas is right. While there are portions of Rahimi and several of the concurrence that may prove helpful to Second Amendment advocates going forward (which will be the topic of another post this afternoon), today’s decision will do nothing to put the brakes on lower courts upholding gun control laws using the most specious arguments. If anything, the majority opinion in Rahimi is likely going to lead lower court judges to rev up their activism. Gorsuch is arguing that today’s decision leaves many questions unanswered, but Thomas contends that even if that is the case, Rahimi is going to make it much easier to rule against gun owners in the future.

SCOTUS Upholds Rahimi Conviction, But Leaves Major Questions Unaddressed

In an 8-1 decision, the Supreme Court upheld Zachey Rahimi’s conviction for possessing a firearm while subject to a domestic violence restraining order, holding that “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.”

The majority opinion, authored by Chief Justice John Roberts, appears to open the door not only to bans on gun ownership for those subject to domestic violence restraining orders, but Extreme Risk Protection Orders as well. The Court held that while there was no “historical twin” to the statute in question at the time the Second Amendment was ratified, there are still enough appropriate “analogues” to uphold the statute.

Together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be.

Like the surety and going armed laws, Section922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another. This prohibition is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right.

Roberts added that “while we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, we note that Section 922(g)(8) applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” That at least leaves the door open for those convicted of non-violent felonies or non-violent misdemeanors punishable by more than a year in prison to regain their Second Amendment rights going forward, especially since the Court took note of the “temporary” nature of a restraining order, as opposed to the lifetime ban on possessing firearms that comes post-conviction.

Importantly, the majority opinion did shoot down one argument presented by the DOJ; the Second Amendment only applies to “responsible” citizens.

“Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented.

In addition to the majority opinion and Justice Clarence Thomas’s dissent, there were five concurring opinions released today; one from Justices Sonia Sotomayor and Elena Kagan, and separate concurrence from Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch.

Gorsuch’s concurrence notes that today’s decision “necessarily leaves open the question whether the statute might be unconstitutional as applied in “particular circumstances.”

So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. We do not resolve whether the government may disarm an individual permanently. We do not determine whether§922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense.

Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’”

We’ll be delving more into the concurring opinions and Justice Thomas’s dissent in subsequent posts, but given all of the media speculation that Justice Barrett was about to break with the conservative wing of the Court over the use of “history and tradition” to determine the constitutionality of gun laws, it’s worth pointing out this key bit from her concurrence today.

In Bruen, the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen’s holding.

It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment’s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood? My doubts were not about whether “tradition,” standing alone, is dispositive.

While that sounds like a positive stance for Second Amendment advocates, Barrett went on to make it clear that “imposing a test that demands overly specific analogues has serious problems,” which could open the door to modern gun control laws being upheld based on the flimsiest of ties to 18th-century statutes.

As Gorsuch says, many questions regarding who can be stripped of their right to keep and bear arms, for how long, and for what reason remain unresolved by Rahimi. I’m concerned, however, that a majority of justices are ready to give pretty wide latitude to the states and Congress when it comes to answering those questions.

2 men wearing nylon masks killed, 1 other hurt in Birmingham shootout during apparent robbery in Avondale

A shooting in south Birmingham left two people dead, and at least one other injured.

Multiple shots rang out about 11 a.m. Friday in the 4400 block of Fifth Avenue South. That location is the Oak Tree Apartments.

One man was pronounced dead in the parking lot. He was on the ground next to a work van, still wearing a black mask.

Two others were rushed to UAB Hospital where a second man was pronounced dead.

A third person sustained non-life-threatening injuries.

Both men who were killed were wearing black nylon face masks, similar to the mask often worn by rapper Pooh Sheisty.

“We believe all of this stemmed from a robbery gone wrong,’’ said Officer Truman Fitzgerald. “Two of the victims both have ski masks on, the Pooh Sheisty mask.”

“We believe the third non-life-threatening victim may have shot them in attempted robbery,’’ he said.

He said detectives don’t believe Friday’s robbery attempt was a crime of opportunity – the person being robbed was likely targeted.

At least 13 shots were fired.

Fitzgerald said Friday’s victims are second and third homicide victims this week who were wearing the “Pooh Sheisty” face masks when they were killed. A 19-year-old killed in a Saturday night shootout outside East Lake Park was also wearing the same mask, he said.

“We can’t stress to you enough how important people, places and behaviors factor into the violence that is going on in our city,’’ he said.

“These are two men in 90-degree weather wearing ski masks,” Fitzgerald said. “You tell us what you think they were up to. That’s what we’re dealing with.”

The surviving victim, he said, were not with the men that were being killed.

Fitzgerald said the narrative so far this summer has been “broad daylight crimes.”

“This just goes to show you the level of carelessness the criminal element has,’’ he said. “Avondale Park is just walking distance.”

Fitzgerald said if the victims were in fact committing a crime, it’s important to note that those things don’t always go as planned.

“This comes from a place of love- young men, we live in Alabama where everybody has a gun,’’ he said. “Before you think you can get the drop on somebody, just remember that other person you think may be a victim, it doesn’t always turn out that way.”

CHICAGO EDITORIAL BOARD: ‘WORRIFYING’ THAT LAW-ABIDING GUN OWNERS ARE DEFENDING THEMSELVES

Last weekend, Chicagoans witnessed a weekend that saw at least 71 people shot. Tragically, nine of the victims died from their injuries. Just two weeks ago, Chicagoans survived a weekend that saw at least 44 people shot. Tragically, at least eight of the victims died from their injuries.

In a city where criminals know they can get away with violence and criminal shootings – even when police are involved – it’s not surprising that law-abiding Chicagoans would consider arming themselves and, God-forbid, having to use their firearm for self-defense or to protect their families.

That’s just too much for The Chicago Tribune editorial board. The media masters there went out and did the most editorial board thing possible and decried such a trend.

“Worryingly, we’re seeing more signs of that phenomenon in Chicago, with three separate episodes over the last weekend in which would-be victims proved to be both armed and willing to fire at their assailants,” the board chose to write.

It must be nice to live in such an Ivory Tower.

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As read on reddit. 

HERE IT IS!

Applying that methodology to this case, Roberts looks at early English and early American gun laws and concludes that they “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

That is the opening we were hoping for. This opens up a challenge to allowing non-violent offenders to have their 2A rights! It stands to argue that in that emphasized statement, that if an individual does NOT pose a clear threat of physical violence to another, they may not be disarmed.

Note that is not legally what he is saying, but I believe that a challenge has been opened on those grounds.

This is basically the exact ruling we expected:

  • If you pose a credible threat of violence, you can be disarmed.
  • If you don’t pose a credible threat of violence, well, that’s a case for another day…

A good comment from u/blackhorse15A on the other post:

The court ONLY decided this for people such as Rahimi where the restraining order found explicitly that they were a danger to others. The Supreme Court decision expressly says that it is not considering the constitutionality of part (ii) where it applies to restraining orders that tell people not to engage in physical violence (without finding them a threat) and leave that open to future challenge. It would be better if they just found that part unconstitutional, but I think it indicates strongly that it likely isnt and having an 8-1 deicsion is pretty powerful here for the rest of what it says.

Second good point- at the end – the Supreme Court outright rejects the idea that he government can restrict gun rights of people who are not “responsible”.

“Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen, we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented.

Supreme Court Upholds Ban on Gun Possession for Those Under Domestic Violence Restraining Orders

The Supreme Court ruled today that a federal law prohibiting individuals subject to domestic violence restraining orders from possessing firearms does not violate the Second Amendment. In an 8-1 decision, the justices upheld the constitutionality of the law that had been challenged by a man charged with discharging a firearm and possessing firearms while under a domestic violence restraining order.

The man, Zackey Rahimi, hoped the Court’s New York State Rifle & Pistol Association v. Bruen ruling in 2022, which places the burden of historical precedent in alignment at the time of the country’s founding to uphold modern-day gun laws, might help him get from under the indictment.

Chief Justice John Roberts, writing for the majority in United States v. Rahimi, emphasized that the Second Amendment does not prohibit all forms of gun regulation.

“When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote, aligning the current regulation with historical precedents. He noted that if the Second Amendment rights include weapons that did not exist at the time the Constitution was written, then logically it also permits more regulation than when it was written .

The case originated from Rahimi, a Texas resident, who was involved in multiple shootings and subjected to a domestic violence restraining order after assaulting his girlfriend. The protective order specifically barred him from possessing firearms. When police found firearms in his home while investigating subsequent shootings, Rahimi was charged under the federal law that prohibits gun possession for individuals under such restraining orders. According to News Nation, Rahimi had been involved in five shootings over a two-month period overlapping 2020 and 2021.

Rahimi argued that the law infringed upon his Second Amendment rights, a position initially supported by the U.S. Court of Appeals for the 5th Circuit, which found that the government failed to provide a historical analogue to justify the restriction. However, the Supreme Court reversed this decision, with Roberts asserting that “firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” since the founding of the United States.

Justice Clarence Thomas, the lone dissenter, contended that the federal government had not demonstrated that the ban is consistent with the nation’s historical tradition of firearm regulation. He argued that the early laws cited by the majority were too different from the current ban to serve as a historical analogue. Thomas expressed concern that the law strips individuals of their Second Amendment rights without due process and could be applied to those not convicted of a crime.

The ruling comes in the wake of Bruen, which expanded gun rights by affirming the right to carry firearms in public for self-defense. That decision has led to numerous legal challenges against existing gun restrictions. The Rahimi decision, however, marks a significant moment where the Court, typically divided on such issues, voted in an overwhelming majority to uphold a restriction aimed at reducing gun violence, particularly in domestic settings.

Domestic violence advocacy groups are welcoming the decision, highlighting the heightened risks victims face when abusers have access to firearms, News Nation reports. Studies show that victims of intimate partner violence are five times more likely to be killed if their abuser has access to a gun. Guns were involved in 57% of domestic killings in 2020, according to the Centers for Disease Control and Prevention.

Still No TRACE of the Truth

In our first installment of a critical analysis of an anti-gun propaganda podcast series from The Trace, we covered the lies, misinformation, and deceptive emotional arguments made in the first four episodes. Here, we will delve into the fifth episode, which continues the previous format, but adds embarrassing incidents where The Trace contradicts itself in an attempt to push its anti-gun messaging.

The intro to the transcript of the 5th installment of the podcast, which is titled “How a SCOTUS Decision Led to an Unprecedented Gun Sales Boom,” kicks off with the completely discredited claim popular among the anti-2A crowd;

“For most of American history, gun ownership was understood to be a collective right tied to militia membership. But that changed in 2008, when The U.S. Supreme Court established for the first time that gun ownership is an individual right.”

In fact, American history—judicial and otherwise—is replete with proof that our Founding Fathers intended the Second Amendment to protect an individual right to arms that is in no way dependent on citizens being affiliated with a militia.

While there have not been many rulings on the Second Amendment from our highest court since the Founding Era, in U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894) and U.S. v. Miller (1939), the Supreme Court recognized that the amendment protects an individual right. It has never taken a different position.

Of course, it comes as no surprise that anti-gun fanatics would ignore history and court precedent to further their desire to disarm as many law-abiding Americans as possible. But the rewriting of history is something we’ve begun to see as a weirdly-common trope with those who oppose the Second Amendment.

The Trace, seemingly fixated on the Heller decision and the year 2008, implies the ruling led to that “unprecedented gun sales boom” mentioned in the title of its fifth episode of the propaganda podcast series. One of the “journalists” is so vested in this new “gun sales boom” connection to Heller that she forgets that last year she seemed to attribute the 2008 “boom” in the manufacture and importation of firearms in the U.S. to the election of Barrack Obama. In that earlier piece, she went with the term “surge” instead of “boom,” and attributed another “surge” between 2011 and 2012 to Obama’s reelection, then attributed another “surge” from 2015 to 2016 to the election of Donald Trump, and finally noted the “biggest year-over-year jump on record” was between 2019 and 2020. That “surge” she attributes to the pandemic.

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