{"id":94393,"date":"2023-07-14T22:09:24","date_gmt":"2023-07-15T03:09:24","guid":{"rendered":"https:\/\/milesfortis.com\/?p=94393"},"modified":"2023-07-14T22:09:24","modified_gmt":"2023-07-15T03:09:24","slug":"94393","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=94393","title":{"rendered":""},"content":{"rendered":"

Experts See Uncertainty in New Supreme Court Gun Case<\/a><\/p>\n

The nation\u2019s highest court is set to decide a new Second Amendment case, but how the justices might come down is murky at best.<\/p>\n

A collection of experts from across the ideological spectrum who have spent decades studying the Second Amendment and American gun laws told\u00a0The Reload<\/em>\u00a0United States v. Rahimi<\/em>\u00a0presents a unique challenge for the Court that will likely flush out its new test for gun cases. But they were less confident about the direction the justices might take or the conclusion they might arrive at.<\/p>\n

\u201cIt is still too early to tell what the Supreme Court will do in\u00a0Rahimi<\/em>,\u201d George Mason University professor Robert Leider, who writes about the Second Amendment and teaches at the Antonin Scalia Law School, said.<\/p>\n

Rahimi<\/em>\u00a0will be the first gun case the Supreme Court takes up since it handed down a new Second Amendment test in last year\u2019s\u00a0New York State Rifle and Pistol Association v. Bruen<\/em>. It is an appeal of\u00a0a Fifth Circuit panel\u2019s ruling<\/a>\u00a0that found the federal ban on those subject to domestic violence restraining orders possessing guns was unconstitutional under the\u00a0Bruen<\/em>\u00a0test. It stems from a case against a Texas man who pled guilty to violating a restraining order his child\u2019s mother had against him over accusations he assaulted her when police found he had guns in his home. The police were able to search his home and find the guns because he is also accused of carrying out multiple shootings unrelated to the situation with his ex-girlfriend.<\/p>\n

\u201cDoubtless, 18 U.S.C. \u00a7 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society,\u201d Judge Cory T. Wilson\u00a0wrote for the panel<\/a>. \u201cWeighing 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\u00a0Bruen<\/em>\u00a0forecloses 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) \u2018s ban on possession of firearms is an \u2018outlier that our ancestors would never have accepted.\u2019 Therefore, the statute is unconstitutional, and Rahimi\u2019s conviction under that statute must be vacated.\u201d<\/p>\n

The Department of Justice (DOJ) decided to skip appealing to the full Fifth Circuit and head straight to the Supreme Court, which\u00a0agreed to take up the case late last month<\/a>. All of the experts who spoke with\u00a0The Reload<\/em>\u00a0agreed that move was a potentially-smart piece of strategic litigating by Attorney General Merrick Garland (D.) and the DOJ.<\/p>\n

<\/p>\n

Adam Winkler, a UCLA law professor and author of\u00a0Gunfight: The Battle over the Right to Bear Arms in America,<\/em>\u00a0argued\u00a0Rahimi<\/em>\u00a0was an \u201cabsolutely necessary\u201d case for the Court to take up. He said the justices need to provide further guidance on how to do the\u00a0Bruen<\/em>\u00a0test, if not eliminate it outright, as gun-control activists have pushed for.<\/p>\n

\u201cThe\u00a0Bruen<\/em>\u00a0case wreaked havoc in the lower courts,\u201d he said. \u201cLower courts have been really struggling, trying to figure out how to apply the history and tradition of cast test to a suite of gun laws that, in truth, just don\u2019t have much relationship with the gun laws of the 1700s and 1800s. So, we\u2019ve seen a wide number of laws struck down since\u00a0Bruen<\/em>\u00a0was decided. And I think the kinds of laws that have been struck down have been surprising. I don\u2019t think anyone in the gun space would have been really surprised had the Court struck down bans on assault weapons or high capacity magazines, laws that are kind of outlier laws; they\u2019re not really adopted in very many states. But for a court to strike down the restriction on guns to domestic abusers under a restraining order is the kind of thing that almost assures that the Supreme Court is going to step back in.\u201d<\/p>\n

And he said the charges leveled against Mr. Rahimi make his a particularly bad test case for gun-rights advocates.<\/p>\n

\u201cIf the court is going to step in and clarify, I think the\u00a0Rahimi<\/em>\u00a0case is the best case for gun safety advocates to go to the Supreme Court,\u201d Winkler said. \u201cThere is no less sympathetic person in the world than a domestic abuser.\u201d<\/p>\n

Mark W. Smith, a former law professor and author of\u00a0First They Came for the Gun Owners: The Campaign to Disarm You and Take Your Freedoms,\u00a0<\/em>noted DOJ skipped over appeals to rulings against prohibitions it uses far more often, such as the felon-in-possession ban the Third Circuit recently cast doubt on, to elevate a case over a charge it rarely uses in practice.<\/p>\n

\u201cHere\u2019s the interesting thing,\u201d he said. \u201cDid Merrick Garland and the Department of Justice for Joe Biden laser focus and try to get the Supreme Court to hear a 922 G1 case involving felons in possession of firearms, the bread and butter routine thing that US Attorney\u2019s Offices see every day in America? They did not. What did they do? Instead, they laser-focused on this\u00a0Rahimi<\/em>\u00a0case.\u201d<\/p>\n

But he called the maneuvering a \u201cgamble.\u201d<\/p>\n

\u201cDOJ thinks that the fact that Mr. Rahimi allegedly is a bad guy involved in five shootings, that\u2019s going to somehow sway the Supreme Court to ignore the law, to ignore the Constitution, and to somehow bend over backwards to find a way to make Mr. Rahimi lose and in the process of ensuring that Mr. Rahimi loses by extension screw up in some way the\u00a0Bruen<\/em>\u00a0methodology,\u201d Smith said. \u201cRemember, the Supreme Court did give us\u00a0Bruen<\/em>\u00a0a year ago. And, if Merrick Garland thinks they\u2019re going to somehow screw that up and do an about-face, I don\u2019t think that\u2019s going to happen.\u201d<\/p>\n

Others remained less confident, though. Josh Blackman, a Cato Institute scholar and a South Texas College of Law professor who teaches constitutional law, said the case is \u201cthe last possible case I would pick\u201d to follow up\u00a0Bruen<\/em>.<\/p>\n

\u201cI can see why the Solicitor General skipped asking the Fifth Circuit for rehearing en banc and went straight to the Supreme Court,\u201d he said. \u201cIf I am the Biden administration, this is the best case I could ask for. It will force Chief Justice Roberts and Justice Kavanaugh to let someone accused of domestic violence keep a firearm. I think that is unlikely. A majority of the Court may end up limiting\u00a0Bruen<\/em>, or at least creating a carveout for people with certain types of criminal offenses.\u201d<\/p>\n

That\u2019s despite the fact that he, and several of the other experts, believe the restraining order prohibition will have a hard time meeting the history and tradition standard laid out in\u00a0Bruen<\/em>\u2013at least as many courts currently understand the practically-newborn standard.<\/p>\n

\u201cAs an originalist matter, under the\u00a0Bruen<\/em>\u00a0framework, there is not a clear \u2018analog\u2019 between the domestic violence restraining order and past laws,\u201d Blackman said. \u201cThis fact is unsurprising because when the Second Amendment was ratified, domestic violence, as we know it today, was not a legal concept. So following\u00a0Bruen<\/em>\u00a0does support the Fifth CIrcuit\u2019s decision.\u201d<\/p>\n

Winkler agreed but argued that was evidence of the\u00a0Bruen<\/em>\u00a0test\u2019s \u201cfoolishness.\u201d<\/p>\n

\u201cWell, of course, we didn\u2019t have laws restricting domestic abusers from possessing firearms in the 1700s and 1800s,\u201d he said. \u201cDomestic abuse wasn\u2019t really illegal. It was allowed. So, domestic abuse kind of highlights the ways in which society has fundamentally changed from the 1700s and 1800s. And our understanding of what violence is and who violent people are has changed.\u201d<\/p>\n

Andrew Willinger, executive director of Duke University\u2019s Center for Firearms Law, also said there aren\u2019t exact historical analogues from the founding era for a domestic violence restraining order leading to a ban on gun ownership. But he argued that isn\u2019t really what the\u00a0Bruen<\/em>\u00a0standard requires under the circumstances at play in\u00a0Rahimi<\/em>.<\/p>\n

\u201cIn general, I think\u00a0Rahimi<\/em>\u00a0presents the question of what happens when analogizing to history \u2018runs out,\u2019 or is incapable of producing a straightforward answer because the concerns motivating a modern law simply weren\u2019t present around the time of the Founding,\u201d he said. \u201cI read the Fifth Circuit\u2019s decision as holding that the\u00a0Bruen<\/em>\u00a0test defaults to unconstitutionality in these circumstances\u2014so, no matter the reason that certain laws weren\u2019t present at the time of the Founding, that fact means the modern law violates the Second Amendment. I think the panel erred when it failed to conduct the \u2018more nuanced approach\u2019 that\u00a0Bruen<\/em>\u00a0identified for \u2018cases implicating unprecedented societal concerns.’\u201d<\/p>\n

He isn\u2019t alone in thinking the Court will reverse the Fifth Circuit\u2019s ruling either. Winkler said it\u2019s most likely \u201cyou see a majority of the court watering down the\u00a0Bruen<\/em>\u00a0test.\u201d Leider argued there\u2019s a substantial chance the Court upholds the law, and the \u201copen question is how narrow or broad its ruling will be\u201d because Chief Justice John Roberts generally works towards broad consensus rulings on controversial topics, which implies a more narrow ruling could be the result.<\/p>\n

\u201cThe legal question in this case is a narrow one: whether the Second Amendment allows the federal government to prohibit the possession of firearms by those under domestic violence restraining orders,\u201d \u201cOf the factors that may trigger a ban on gun possession, this one is the most tailored. It only applies when the restraining order is in effect. And at least in most states, in theory, the restraining order should not issue unless the person is a danger to a family member or has previously assaulted, battered, or stalked a family member. There is a strong correlation between those who have previously engaged in family violence and those who ultimately murder their family members.\u201d<\/p>\n

He said that stood in contrast to laws against felons owning guns because what constitutes a felony has ballooned over the years, with many non-violent crimes landing offenders like Martha Stewart lifetime gun bans.<\/p>\n

\u201cSo, of the various prohibiting criteria, the domestic violence restraining order ban may be the most defensible,\u201d Leider said. \u201cHistorically, the court system has also been involved in the prevention of crimes. There is a tradition of requiring defendants to post a surety to keep the peace when there is probable cause to believe that they are a danger to others. At common law, a spouse could seek sureties of the peace against the other spouse, and the common law permitted such actions even during times in history when spouses could not generally sue each other.\u201d<\/p>\n

Justice Amy Coney Barrett\u2019s dissent in 2019\u2019s\u00a0Kanter v. Barr<\/a><\/em>\u00a0could play a significant role if the Court does decide to rework its Second Amendment test, Willinger argued. He said he could see six justices going along with the reasoning.<\/p>\n

\u201cI expect the Court to clarify that a more nuanced approach applies and, most likely, to adopt Justice Barrett\u2019s position in\u00a0Kanter<\/em>\u00a0that the general historical principle that dangerous individuals may be disarmed supports the domestic violence restraining order law under the nuanced approach,\u201d he said. \u201cI read Justice Barrett\u2019s dissent in\u00a0Kanter<\/em>\u00a0to say that laws such as 922(g)(8) are constitutional because history supports prohibitions based \u2018on present-day judgments about categories of people whose possession of guns would endanger the public safety.’\u201d<\/p>\n

Although, Winkler said that standard could run into its own problems because its foundation is laid primarily on bigoted gun bans.<\/p>\n

\u201cThe court could say, \u2018This is analogous to laws banning dangerous people like Blacks or Native Americans from possessing firearms,’\u201d he said. \u201cBut I think that\u2019s kind of an uncomfortable opinion to write. Why? Because it\u2019s clear that Blacks and Native Americans were not dangerous people and that was totally based on falsehood and racism. The ban on domestic abusers, it\u2019s not based on falsehood but on very clear data that show that domestic abusers with firearms are the most dangerous demographic to have firearms in the world.\u201d<\/p>\n

Still, there was broad agreement that the case isn\u2019t a sure thing. Winkler said while it\u2019s \u201cthe best-case scenario for gun safety advocates,\u201d it\u2019s not \u201ca slam dunk.\u201d Smith called it \u201cvery risky\u201d for gun-control advocates.<\/p>\n

\u201cIt may work; it may somehow undercut the Bruen methodology,\u201d he said. \u201cBut, boy, it may backfire entirely and allow for the Supreme Court to clean up a lot of these open questions we\u2019ve seen in the last year in these various cases across the country and fix it up and strengthen the Bruen methodology. And I could see that happening just as easily as it going the other way.\u201d<\/p>\n

A few experts also raised the possibility the Court could take up another case in the same vein as Rahimi. Last month, in\u00a0Range v. AG<\/em>, the Third Circuit Court of Appeals\u00a0found the federal law prohibiting a non-violent felon from owning guns violates his Second Amendment rights<\/a>. Willinger said if the Court adopts Barrett\u2019s reasoning from\u00a0Kanter,<\/em>\u00a0that would imply a good chance a case like\u00a0Range<\/em>\u00a0would be next on its docket. Leider and Smith both agreed.<\/p>\n

\u201cI can see a situation where the Supreme Court grants cert later this year to the\u00a0Range<\/em>\u00a0case and decides the\u00a0Range<\/em>\u00a0case and the\u00a0Rahimi<\/em>\u00a0case,\u201d Smith said. \u201cI could see the\u00a0Range<\/em>\u00a0case resolving the substantive Second Amendment question, while the\u00a0Rahimi<\/em>\u00a0case may focus on the procedural process by which the government must follow to take away Second Amendment substantive rights.\u201d<\/p>\n

In the end, despite the difficulty of forecasting what the justices might do, the experts largely agreed the Court is unlikely to enact sweeping changes to how it handles gun cases so soon after handing down that test. It could tweak or rework parts of its application, but a total redo is probably not in the works.<\/p>\n

\u201cI would be surprised to see the Court issue a broad decision clarifying other aspects of the\u00a0Bruen<\/em>\u00a0test because I think the justices likely disagree in fundamental ways about questions such as the extent to which lower courts should rely on the adversarial process for historical inquiries, the proper level of generality to use when looking at history in other areas of Second Amendment law such as sensitive places and assault weapons bans, and so on,\u201d Willinger said.<\/p>\n

One thing is for sure, though.<\/p>\n

\u201cRegardless of how the Supreme Court decides the case, everyone will be pouring over every word in the opinion,\u201d Leider said.<\/p>\n","protected":false},"excerpt":{"rendered":"

Experts See Uncertainty in New Supreme Court Gun Case The nation\u2019s highest court is set to decide a new Second Amendment case, but how the justices might come down is murky at best. A collection of experts from across the ideological spectrum who have spent decades studying the Second Amendment and American gun laws told\u00a0The … 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-94393","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\/94393","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=94393"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/94393\/revisions"}],"predecessor-version":[{"id":94394,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/94393\/revisions\/94394"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=94393"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=94393"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=94393"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}