{"id":90813,"date":"2023-03-15T12:16:02","date_gmt":"2023-03-15T17:16:02","guid":{"rendered":"https:\/\/milesfortis.com\/?p=90813"},"modified":"2023-03-15T12:16:02","modified_gmt":"2023-03-15T17:16:02","slug":"90813","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=90813","title":{"rendered":""},"content":{"rendered":"

Should the Fifth Circuit Reconsider Rahimi En Banc?<\/a><\/p>\n

The Fifth Circuit’s decision in\u00a0United States v. Rahimi<\/em>, which held that the federal statute prohibiting possession of a firearm by a person subject to a domestic violence restraining order violates the Second Amendment, has managed to stay in the news for longer than most circuit court decisions. On March 2, a month after it initially released its decision, the Fifth Circuit panel withdraw its original opinion and substituted a\u00a0revised version<\/a>.<\/p>\n

The end result is the same, and the updates to the controlling opinion appear to be modest, but Judge Ho significantly expanded his concurring opinion, in which he sets out to “explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals.” Judge Ho emphasizes that “[t]hose who commit violence, including domestic violence, shouldn’t just be disarmed\u2014they should be detained, prosecuted, convicted, and incarcerated.”<\/p>\n

But because the law at issue in\u00a0Rahimi\u00a0<\/em>“disarms individuals based on civil protective orders\u2014not criminal proceedings,” the panel found no “analogous historical tradition sufficient to support” it. That was especially true, given the way that civil protective orders are used (and abused) in our system, including by a common practice of issuing “mutual restraining orders” in domestic violence cases, a practice that results in the federal prohibition actually disarming domestic violence\u00a0victims<\/em>.<\/p>\n

Judge Ho’s concurrence also highlights the importance of the Fifth Circuit getting this case right. He notes that before\u00a0Bruen<\/em>, circuit courts routinely misapplied\u00a0Heller\u00a0<\/em>despite frequent criticism from the members of the Supreme Court that they were “disfavoring the Second Amendment.” And he correctly recognizes that\u00a0Bruen\u00a0<\/em>was a response to the lower courts’ intransigence: “The Supreme Court has now responded by setting forth a new legal framework in\u00a0Bruen<\/em>. It is incumbent on lower courts to implement\u00a0Bruen\u00a0<\/em>in good faith and to the best of our ability.”<\/p>\n

Of course, the issue is fraught, so\u00a0Rahimi\u00a0<\/em>has received\u00a0a lot\u00a0<\/em>of attention. Given that it invalidated a federal statute, it seems like a likely candidate for catching the Supreme Court’s attention too. In fact, it appears that the Justice Department views this as a particularly good vehicle to ask the Supreme Court immediately to consider (or\u00a0reconsider<\/em>) some of the effects of its decision in\u00a0Bruen<\/em>. Attorney General Merrick Garland made a\u00a0statement<\/a>\u00a0over a month ago, vowing to “seek further review of the Fifth Circuit’s \u2026 decision,” but there is no indication he intends to seek that review from the Fifth Circuit.<\/p>\n

For those of us who believe\u00a0Bruen\u00a0<\/em>got it exactly right,\u00a0Rahimi\u00a0<\/em>may be a bad vehicle for the Supreme Court to flesh out its decision in\u00a0Bruen<\/em>. As much as the Justices may try to focus on the bigger-picture legal issues, bad facts make bad law, and\u00a0Rahimi\u00a0<\/em>is full of bad facts. Even if the law that kept him from possessing firearms in this case is unconstitutional\u2014and the panel opinion makes a compelling case that the law lacked support from the founding era\u2014it seems clear that Mr. Rahimi is exactly the sort of person who should be able to be disarmed consistent with the Second Amendment. He was involved in five shootings in two months, including one instance when he “fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”<\/p>\n

\n
The Fifth Circuit should consider rehearing the case en banc<\/em>. This would have the advantage of setting the clearest possible precedent to govern future Second Amendment challenges under\u00a0Bruen\u00a0<\/em>and, perhaps just as importantly, permitting other Second Amendment challenges to get to the Supreme Court first. The federal rules of appellate procedure say a case is a good candidate for reconsideration if it “involves a question of exceptional importance.” The issue in\u00a0Rahimi\u00a0<\/em>meets that standard several in different ways.<\/div>\n
<\/div>\n<\/div>\n

The Third Circuit recently heard\u00a0en banc<\/em>\u00a0argument in\u00a0United States v. Range<\/em>, a case raising the constitutionality of the federal law against felon possession of a firearm\u2014a separate subsection of the same law at issue in\u00a0Rahimi<\/em>\u2014and it decided the issue was worth\u00a0en banc\u00a0<\/em>treatment just\u00a0three days\u00a0<\/em>after receiving the petition for rehearing was filed. More recently, the Eleventh Circuit issued a decision in\u00a0National Rifle Association v. Bondi<\/em>, holding that a Florida law restricting the Second Amendment rights of 18-to-20-year-olds to purchase a firearm was constitutional under\u00a0Bruen<\/em>. That same day, before any petition for rehearing could be filed, a judge of that court apparently called for an\u00a0en banc\u00a0<\/em>poll, because the court entered an\u00a0order<\/a>\u00a0withholding issuance of the mandate.<\/p>\n

Under Fifth Circuit\u00a0Internal Operating Procedures<\/a>, any judge may initiate a vote to take a case en banc, even without a petition. And since it appears no petition for rehearing is forthcoming from the Justice Department, the judges of the Fifth Circuit should exercise that prerogative here.\u00a0Rahimi<\/u><\/em>\u00a0may well wind up at the Supreme Court anyway, but given the importance of the issues, and Judge Ho’s (correct) assessment that\u00a0Bruen\u00a0<\/em>has tasked the courts of appeals with fleshing out its method first, the Fifth Circuit may do well to consider\u00a0Rahimi<\/em>\u00a0as a whole court first.<\/p>\n","protected":false},"excerpt":{"rendered":"

Should the Fifth Circuit Reconsider Rahimi En Banc? The Fifth Circuit’s decision in\u00a0United States v. Rahimi, which held that the federal statute prohibiting possession of a firearm by a person subject to a domestic violence restraining order violates the Second Amendment, has managed to stay in the news for longer than most circuit court decisions. … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,8],"tags":[],"class_list":["post-90813","post","type-post","status-publish","format-standard","hentry","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90813","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=90813"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90813\/revisions"}],"predecessor-version":[{"id":90814,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/90813\/revisions\/90814"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=90813"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=90813"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=90813"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}