{"id":94003,"date":"2023-06-30T19:02:46","date_gmt":"2023-07-01T00:02:46","guid":{"rendered":"https:\/\/milesfortis.com\/?p=94003"},"modified":"2023-06-30T19:02:46","modified_gmt":"2023-07-01T00:02:46","slug":"94003","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=94003","title":{"rendered":""},"content":{"rendered":"

SCOTUS accepts case dealing with gun ban for those subject to domestic violence restraining order<\/a><\/p>\n

In its last conference before heading out for summer recess, the Supreme Court granted cert to\u00a0U.S. v. Rahimi\u00a0<\/em>on Friday; setting up a fight over the scope of the Court\u2019s history, text, and tradition test spelled out in last year\u2019s\u00a0Bruen\u00a0<\/em>decision.<\/p>\n

As we\u2019ve written about here\u00a0previously<\/a>, the case involves the federal prosecution of Zachey Rahimi, who\u2019s accused of illegally possessing a firearm in violation of a domestic violence restraining order. Rahimi (or rather, his public defenders) challenged those charges after the Supreme Court issued its decision in\u00a0Bruen\u00a0<\/em>last year, arguing that the modern day prohibition on firearms possession for those subject to the civil restraining order falls outside the historical scope of gun control laws and earlier this year the Fifth Circuit Court of Appeals agreed with that proposition.<\/p>\n

In its decision, the three-judge panel on the Fifth Circuit determined that the question at the heart of the case \u201cis not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,\u201d but whether the federal statute in question\u00a0is constitutional. This is one of many cases around the country where the Department of Justice has been claiming that the Second Amendment only protects the right of \u201claw-abiding citizens\u201d to keep and bear arms; a position that the Fifth Circuit rejected, noting that there\u2019s no limiting principle in the government\u2019s position. From the Fifth Circuit\u2019s opinion:<\/p>\n

According to the Government, Heller and Bruen add a gloss on the Second Amendment that restricts its applicability to only \u201claw-abiding, responsible citizens,\u201d Heller, 554 U.S. at 635, and \u201cordinary, law-abiding citizens,\u201d Bruen, 142 S. Ct. at 2122. Because Rahimi is neither responsible nor law-abiding, as evidenced by his conduct and by the domestic violence restraining order issued against him, he falls outside the ambit of the Second Amendment. Therefore, argues the Government, \u00a7 922(g)(8) is constitutional as applied to Rahimi.<\/p>\n

\u2026 Heller explained that the words \u201cthe people\u201d in the Second Amendment have been interpreted throughout the Constitution to \u201cunambiguously refer[] to all members of the political community, not an unspecified subset.\u201d 554 U.S. at 580. Further, \u201cthe people\u201d \u201crefer[] to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.\u201d For those reasons, the Heller Court began its analysis with the \u201cstrong presumption that the Second Amendment right is exercised individually and belongs to all Americans,\u201d , and then confirmed that presumption.<\/p>\n

Heller\u2019s exposition of \u201cthe people\u201d strongly indicates that Rahimi is included in \u201cthe people\u201d and thus within the Second Amendment\u2019s scope\u2026<\/p>\n

Indeed, the upshot of the Government\u2019s argument is that the Second Amendment right can be readily divested, such that \u201ca person could be in one day and out the next: . . . his rights would be stripped as a self-executing consequence of his new status.\u201d But this turns the typical way of conceptualizing constitutional rights on its head. And the Government\u2019s argument reads the Supreme Court\u2019s \u201claw-abiding\u201d gloss so expansively that it risks swallowing the text of the amendment.<\/p>\n

Further, the Government\u2019s proffered interpretation of \u201claw-abiding\u201d admits to no true limiting principle. Under the Government\u2019s reading, Congress could remove \u201cunordinary\u201d or \u201cirresponsible\u201d or \u201cnon-lawabiding\u201d people\u2014however expediently defined\u2014from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment\u2019s protections; to the contrary, the Supreme Court has made clear that \u201cthe Second Amendment right is exercised individually and belongs to all Americans,\u201d Heller, 554 U.S. at 581. Rahimi, while hardly a model citizen, is nonetheless among \u201cthe people\u201d entitled to the Second Amendment\u2019s guarantees, all other things equal.<\/p><\/blockquote>\n

While\u00a0Rahimi\u00a0<\/em>won\u2019t be the vehicle that decides the fate of bans on so-called assault weapons or the overreaching \u201csensitive places\u201d that states like New York and New Jersey have imposed on concealed carry holders, it does have the potential to answer a hugely important question; just who are \u201cthe people\u201d who possess the right to keep and bear arms.<\/p>\n

The Supreme Court has taken pains in its previous Second Amendment cases to note that nothing in those decisions should cast doubt on \u201clongstanding prohibitions\u201d on gun ownership for felons and those adjudicated as mentally defective, but Zachey Rahimi doesn\u2019t fit either of those categories, though he\u2019s\u00a0hardly the perfect poster child<\/a>\u00a0for Second Amendment advocates.<\/p>\n

\n

While gun rights activists have taken aim at state and local restrictions in the aftermath of the Supreme Court ruling, a key battleground is on a series of federal restrictions that are listed in a section of law called\u00a018 U.S. Code Section 922<\/a>.<\/p>\n

One of those provisions \u2014 922(g)(8) \u2014 concerns anyone \u201csubject to a court order\u201d in which they were found to be a threat to a domestic partner or child.<\/p>\n

Zackey Rahimi, an accused drug dealer in Texas whose partner obtained a restraining order in February 2020, is one such person.<\/p>\n

During an incident in an Arlington, Texas, parking lot the previous year recounted by the federal government in court papers, Rahimi was accused of knocking the woman to the ground, dragging her to his car and pushing her inside, knocking her head on the dashboard in the process. He also allegedly fired a shot from his gun after realizing that a bystander was watching.<\/p>\n

While the protective order was in effect, Rahimi was implicated in a series of shootings, including one incident in which he allegedly fired bullets into a house using an AR-15 rifle, the federal government says.<\/p>\n

Rahimi faced state charges for the domestic assault and another assault against a different woman.<\/p>\n<\/blockquote>\n

As the Fifth Circuit pointed out in its decision, if the state of Texas wanted to keep Rahimi away from guns it had other options than enforcing the gun prohibition portion of the domestic violence restraining order, which is a civil, not criminal order. The state could have requested Rahimi be held without bond until trial, for instance, arguing that he posed a danger to himself or the community, but prosecutors didn\u2019t take that step. As the Fifth Circuit panel opined:<\/p>\n

When he was charged, Rahimi was subject to an agreed domestic violence restraining order that was entered in a civil proceeding. That alone does not suffice to remove him from the political community within the amendment\u2019s scope. And, while he was suspected of other criminal conduct at the time, Rahimi was not a convicted felon or otherwise subject to another \u201clongstanding prohibition on the possession of firearms\u201d that would have excluded him\u2026<\/p>\n

Doubtless, 18 U.S.C. \u00a7 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals\u2019 merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of \u00a7 922(g)(8) outweighed its burden on Rahimi\u2019s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that \u00a7 922(g)(8)\u2019s ban on possession of firearms is an \u201coutlier that our ancestors would never have accepted.\u201d Id. Therefore, the statute is unconstitutional, and Rahimi\u2019s conviction under that statute must be vacated.<\/p><\/blockquote>\n

It\u2019s far too early to offer any predictions about how the Court will decide this case, especially because this is one of those issues where we could see some strange bedfellows on the bench. The liberal flank of the Court has been in staunch opposition to recognizing the Second Amendment rights for\u00a0anyone\u00a0<\/em>(law-abiding or not), but Chief Justice John Roberts and Brett Kavanaugh have also taken pains in the past to note that neither\u00a0Heller\u00a0<\/em>nor\u00a0Bruen\u00a0<\/em>should upend any and all gun laws. A 5-4 majority reversing the Fifth Circuit\u2019s decision isn\u2019t out of the question here unfortunately, though it\u2019s hard to see how a majority could reach that conclusion while still faithfully applying the text, history, and tradition test the Court outlined just last year.<\/p>\n

If they do, there\u2019s a real risk that the decision could stretch the definition of \u201chistorical analogues\u201d to the point that anti-gun politicians and unelected officials could justify adopting all kinds of infringements on the right to keep and bear arms using old laws that hardly bear a passing resemblance to modern day restrictions. And if the Supreme Court agrees with the DOJ\u2019s position that only \u201claw-abiding citizens\u201d possess the right to keep and bear arms, get ready for blue states to craft a lot of new laws barring gun possession for the most minor of criminal offenses. Ultimately, the most important outcome of the case may not be whether a domestic violence restraining order can prohibit gun ownership outright, but just who, exactly, the Second Amendment protects against government\u2019s infringement on a fundamental right.<\/p>\n

It\u2019s also quite possible that the Court could craft a narrow decision that applies to Rahimi, but leaves unresolved the larger question about \u201claw-abiding citizens\u201d versus \u201cthe people\u201d. The Third Circuit recently issued an\u00a0en banc decision rejecting the lifetime prohibition on gun ownership<\/a>\u00a0for a Pennsylvania man convicted of a non-violent misdemeanor punishable by five years in prison, which is covered under a different section of 922(g), and that case is likely going to be heard in conference when the Court returns in the fall. SCOTUS may end up focusing exclusively on 18 U.S.C. \u00a7 922(g)(8) in\u00a0Rahimi<\/em>\u00a0and wait for a case like\u00a0Range v. Garland\u00a0<\/em>to flesh out the scope of the Second Amendment\u2019s protections, but either way we won\u2019t have to wait another ten years for the Court to weigh in on a Second Amendment case. In fact,\u00a0Rahimi\u00a0<\/em>is just the first of a flood of 2A cases that will coming before the court for consideration in the next few months.<\/p>\n","protected":false},"excerpt":{"rendered":"

SCOTUS accepts case dealing with gun ban for those subject to domestic violence restraining order In its last conference before heading out for summer recess, the Supreme Court granted cert to\u00a0U.S. v. Rahimi\u00a0on Friday; setting up a fight over the scope of the Court\u2019s history, text, and tradition test spelled out in last year\u2019s\u00a0Bruen\u00a0decision. As … 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-94003","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\/94003","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=94003"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/94003\/revisions"}],"predecessor-version":[{"id":94004,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/94003\/revisions\/94004"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=94003"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=94003"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=94003"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}