Category: Rights

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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A closer look at more amici briefs in the next SCOTUS 2A case

United States v. Rahimi is a case dealing with a prohibited person being in possession of arms. Just the other day I covered one of the many amici briefs that have been filed in support of Rahimi, one that the Second Amendment Foundation wrote. There’s a lot of attention being paid to this particular case, for good reason. It’s quite possible that the U.S. Attorney General is going to use this case as an opportunity to twist and contort NYSRPA v. Bruen.  To date, there have been 21 and counting briefs filed in support of Rahimi and about 36 in support of the U.S. government.

The Rahimi question is whether or not a blanket prohibition on those subject to a civil domestic violence restraining order would be constitutional. Rahimi, during the course of some less-than-savory acts, got charged with being in possession of a firearm when under such an order. The case at hand is not about whether or not violent people or those who beat their domestic partners should or should not have firearms, but rather about if a civil – not criminal – process should lead to the loss of a constitutional right.

Discussed previously, SAF’s brief goes straight to “the only analogue that was around at the time of the founding” concerning blanket prohibitions had to do with British loyalists in a post revolution time.

A brief that was filed on October 4, 2023 by multiple “law enforcement groups” and “firearms rights groups” latches onto an argument that I’ve been making since day one – this is a due process case.

That brief represents the following groups: Bridgeville Rifle & Pistol Club, Connecticut Citizens Defense League, Delaware State Sportsmen’s Association, Gun Owners Action League (Massachusetts), Law Enforcement Legal Defense Fund, Maryland State Rifle & Pistol Association, Vermont Federation of Sportsmen’s Clubs, Vermont State Rifle & Pistol Association, Virginia Shooting Sports Association, Western States Sheriffs’ Association, and Women for Gun Rights (Formerly known as the DC Project).

The 37 page text makes the argument that we need not look any further than the facially unconstitutional due process violations that are involved.

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