Full Transcript - SCOTUS Roundup Gun Rights & The Second Amendment
Full Transcript - SCOTUS Roundup Gun Rights & The Second Amendment
Watch Episode #62 - SCOTUS Roundup Gun Right & The Second Amendment
Today on Legalese we have a number of updates on cases I have been tracking as part of my annual supreme court roundup.
Today on Legalese we will be discussing three second amendment cases before the supreme court for this term. One will be a case we have already covered and two are cases the Court chose to grant cert on just last week.
These are the cases we will be discussing. With US v Rahimi, we covered that case in my initial SCOTUS roundup back on October 2nd. Last week the Court heard oral arguments in the case. If anyone out there has the time and the inclination to go listen to the full 90 minutes, it was a really interesting session. I will link to that audio stream on the show notes page. But I know many people simply don’t have the time or the inclination to sit through all that. So today I will be providing you guys with my own cliff notes summary of what was discussed, and pointing out some of the key moments during those arguments on which the courts questions and the attorney’s answers point to crucial elements on which the case is likely to turn. And after that, I’m going to finish up by making a very confident prediction about what the outcome of this case is going to look like.
But before that I want to get to these two new cases. These are Garland v Cargill and NRA v Vullo
Garland
The first of the two new merits cases is an incredibly important case for gun rights that I covered on the show back in January when the fifth circuit issued the opinion that is now being appealed to the Supreme Court. I am talking about Cargill v Garland. In this case the judges will decide if a bump-stock is a machinegun.
The fifth circuit’s primary holding found that “The definition of “machinegun” as set forth in the National Firearms Act and Gun Control Act does not apply to bump stocks and, even if the language was ambiguous, the court would apply the rule of lenity to interpret the statute against imposing criminal liability.”
That holding is being appealed by Merrick Garland. I’m sure most people know Merrick Garland as Joe Biden’s current Attorney General, others might be most familiar with his passion project, moonlighting as one of our Nation’s most accomplished Droopy Dog Impersonators.
In Garland v Cargill, The Court has decided to grant cert on the following question presented:
Since 1986, Congress has prohibited the transfer or possession of any new "machinegun." 18 U.S.C. 922(o)(1). The National Firearms Act, 26 U.S.C. 5801, defines a "machinegun" as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." 26 U.S.C. 5845(b). The statutory definition also encompasses "any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun." Ibid.
A "bump stock" is a device designed and intended to permit users to convert a semiautomatic rifle so that the rifle can be fired continuously with a single pull of the trigger, discharging potentially hundreds of bullets per minute. In 2018, after a mass shooting in Las Vegas carried out using bump stocks, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) published an interpretive rule concluding that bump stocks are machineguns as defined in Section 5845(b). In the decision below, the en banc Fifth Circuit held that the ATF rule was unlawful because the statutory definition of "machinegun" does not encompass bump stocks. The question presented is as follows:
Whether a bump stock device is a "machinegun" as defined in 26 U.S.C. 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires "automatically more than one shot * * * by a single function of the trigger."
When asked how he feels about implementing Orwellian newspeak into the Code of Federal Regulations Garland replied:
NRA
The second merits case they have taken up is National Rifle Association of America v. Vullo
At issue in this case is whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.
Even though, on paper, this is strictly a first amendment case I am sure that Ray Charles could see through Stevie Wonder’s eyes why I began by referring to this as a second amendment case. Obviously the sole reason the New York state politicians and bureaucrats are violating the free speech and equal protection rights of our nation’s oldest and most effective civil rights organization is because they are actively hostile towards the particular civil liberty this organization chooses to advocate for.
In this case, plaintiff-appellee National Rifle Association of America (the "NRA") claims that defendant-appellant Maria T. Vullo, the former Superintendent of the New York State Department of Financial Services ("DFS"), violated its rights to free speech and equal protection when she investigated three insurance companies that had partnered with it to provide coverage for losses resulting from gun use and encouraged banks and insurance companies to consider discontinuing their relationships with gun promotion organizations. The NRA contends that Vullo used her regulatory power to threaten NRA business partners and coerce them into disassociating with the NRA, in violation of its rights.
I’ll give you the TLDR version of the procedural history. As always, the full context can be found in the Court Records available on this episode’s show notes page.
Because of the alleged violations of the NRA’s free speech and equal protection rights, the NRA brought suit in district court against then Governor Andrew Cuomo and then DFS Superintendent Maria Vullo, in both their individual and official capacities. On a Rule 12(b)(6) motion to dismiss, Ms. Vullo argues that she is entitled to absolute and qualified immunity on the selective enforcement claim, and qualified immunity on the First Amendment issue.
Ms. Vullo’s motion [was] GRANTED in part and DENIED in part. The selective enforcement claim against Ms. Vullo is DISMISSED, the motion is denied as to the First Amendment claims, and the appeal of Judge Hummel’s decision granting leave to amend is denied.1
The Second Circuit’s primary holding reversed the district court’s denial of Defendant’s motion to dismiss the free speech and equal protection against them. The court remanded the case with directions for the district court to enter judgment for Defendant.2
The NRA is seeking review on that judgement of the Second Circuit. The Court has agreed to hear this case on the following question presented:
Bantam Books v. Sullivan held that a state commission with no formal regulatory power violated the First Amendment when it "deliberately set out to achieve the suppression of publications" through "informal sanctions," including the "threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation." 372 U.S. 58, 66-67 (1963). Respondent here, wielding enormous regulatory power as the head of New York's Department of Financial Services ("DFS"), applied similar pressure tactics-including backchannel threats, ominous guidance letters, and selective enforcement of regulatory infractions-to induce banks and insurance companies to avoid doing business with Petitioner, a gun rights advocacy group. App. 199-200 ¶ 21.
Respondent targeted Petitioner explicitly based on its Second Amendment advocacy, which DFS's official regulatory guidance deemed a "reputational risk" to any financial institution serving the NRA. Id. at 199, n.16. The Second Circuit held such conduct permissible as a matter of law, reasoning that "this age of enhanced corporate social responsibility" justifies regulatory concern about "general backlash" against a customer's political speech. Id. at 29-30. Accordingly, the questions presented are:
Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government's own hostility to the speaker's viewpoint or (b) a perceived "general backlash" against the speaker's advocacy?3
The initial cert petition included a second QP that read:
Does such coercion violate a clearly established First Amendment right?4
However the Court limited their grant to the first question presented.
Rahimi
Lets move onto Rahimi[1]. This challenge came to the court in the case of Zackey Rahimi, who was the subject of a Feb. 2020 protective order in a Texas state court after an incident in which he assaulted his then girlfriend, who is also the mother of his child, and fired a gun at a witness to the incident. The protective order barred Rahimi from going near his former girlfriend’s home and workplace, and it also prohibited him from having a gun. In 2021, police searched Rahimi’s home because he was a suspect in a series of shootings. After they found a rifle and a pistol, he was charged with violating 18 U.S.C. § 922(g)(8), which applies to any person who is subject to a court order that restrains that person from harassing, stalking or threatening an intimate partner or engaging in other conduct that would place an intimate partner reasonable fear of bodily injury. And Rahimi’s domestic violence restraining order certainly fits. Such an order also prohibits you from being in possession of a firearm while the order is in place.
Rahimi sought to have the charge against him dismissed, arguing that the law is unconstitutional. In the wake of the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, in which the justices explained that courts should uphold gun restrictions only if there is a tradition of such regulations in U.S. history, the U.S. Court of Appeals for the 5th Circuit agreed and threw out Rahimi’s conviction. Although the government is not required to identify a “historical twin” to Section 922(g)(8), the court of appeals explained, it had not offered the kind of “well-established and representative analogue” required to uphold the law.
This brings us to the to the primary issue this case means to address. Does 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violate the Second Amendment?
The Supreme Court appeared ready to uphold a federal law that bars anyone subject to a domestic violence restraining order from possessing a gun. A majority of the justices seemed wary of the consequences of allowing a ruling by a federal appeals court that struck down the law to stand.
Representing the federal government, U.S. Solicitor General Elizabeth Prelogar emphasized what she described as the “destabilizing consequences” of the 5th Circuit’s ruling. Relying on a similar test, she noted, other federal courts have relied on the lack of a historical analogue to strike down other gun restrictions, including the federal ban on the possession of guns by felons and the possession of guns that have had their serial numbers removed. But the Supreme Court in Bruen, Prelogar contended, recognized that Congress can take guns away from individuals who are not responsible, law-abiding citizens – for example, people who had been loyal to the British government during the Revolutionary War, felons, and drug addicts.[2]
Some justices pressed Prelogar on what it meant for someone to be a “responsible” or “law-abiding” citizen.
“Responsibility is a very broad concept... Would someone who doesn’t take his recycling out to the curb on the proper day be irresponsible?”
Prelogar defined “responsibility” as “intrinsically tied to the danger you would present if you have access to firearms.”
There is a point I really want to press home as well, because I happened to be reading the transcripts while I was listening to the audio and I realized one of the most consequential parts of these arguments is something anyone merely reading the transcript could have easily overlooked. Because there was an additional category of persons she repeatedly referred to, namely “dangerous” individuals. The court and the attorneys had no problem accepting that a domestic abuser with a history of various assault and battery charges would fall within what the Court recognized as “traditionally dangerous individuals.”
Later, Justice Barrett pressed the SG about what would happen in a case where the defendant is not dangerous. Prelogar responded,
"You don't need to resolve that issue here. This is a is a case just about someone who is not responsible in the form of being dangerous."
Barrett asked:
"But you're trying to save, like, the range issue. So you're not applying dangerousness to the crimes?"
Here, Barrett was referring to Garland v. Range. Range presents the question of whether a person convicted of making false statements to obtain food stamps is subject to the disqualification under Section 922(g)(1).5
If you skimmed the transcript, you might have missed the reference. Indeed, "range" was lowercase and not italicized.
On June 6, 2023, the En Banc Third Circuit held that under Bruen, Range could not be disarmed.
Four months later (October 5th 2023), the Solicitor General filed a cert petition in Range.
By contrast, the Solicitor General filed a cert petition fifteen days (March 17th 2023), after the panel (March 2nd 2023), decided Rahimi– Prelogar has made it a habit to skip En Banc review in the Fifth Circuit. But the SG did not ask the Court to grant certiorari in Range right away. Rather, the SG urged the Court to hold Range pending Rahimi.
You can imagine why…
Rahimi presents the worst facts possible for a Second Amendment case. Meanwhile, a person who engaged in welfare fraud is a far more sympathetic defendant. In Range, the respondents told the Court to grant the government's petition, even though they won in the lower court! (You don't see that happening often.)
The government's reply brief, filed six days (November 1st, 2023), before Rahimi was argued, once again urged the Court to hold Range pending Rahimi.
Back to Justice Barrett. She asked the SG
But you're trying to save, like, the [Garland v. Range] issue. So you're not applying dangerousness to the crimes?
Prelogar responded, "That's correct." Prelogar added,
We think that there are additional arguments that can be made to defend felon disarmament and that those depend on the unique history and tradition with respect to criminal conduct.
And looking ahead, the SG said, "we would hope to have the opportunity to present those arguments and perhaps persuade you in a future." Barrett interrupted Prelogar. "In that case perhaps." That is, Range. After some cross-talk, Prelogar said, "yes."
It was amazing that you could hear the nervousness and discomfort in the Solicitor General’s response as she tries to answer that question about a very particular case as though that case doesn’t exist. She refused to say “we will discuss those facts in Range.” And tried to give a generic “we’ll discuss them in any future case that might come up at some point.” They do want to recognize the existence of their very questionable and facially unconstitutional case until they have secured this slam-dunk easy win and they have precedent to extend the violation of 2A rights under this law from domestic-abusers to people who lied on a form 30 years ago to get food stamps. I’ve clipped this exchange so you guys can hear it for yourself.
*Clip Too Large To Add. Too Bad*
Range and Rahimi would likely become companion cases. Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from Bruen. Indeed, the Court may be able to split those cases in a way so as not to water-down Bruen. The Court could even vacate-and-remand Rahimi in light of Range. If the Fifth Circuit is given clear guidance on what the state of the law is, it can follow that guidance. Though this possibility is far from certain.
And I have to commend Merrick Garland on precisely how they have handled these two cases. I deplore the thing they are hoping to accomplish by juggling these cases this way, but it’s a tactically brilliant move and I have got to respect the hustle. This was clearly done to do as much violence to the second amendment as possible.
In fact, when reached for comment on this strategy Merrick Garland would say
Getting back to the oral arguments in Rahimi. We’ve so far only discussed the government’s side of the case.
However, by an measure, things did not go well for Mr. Rahimi. It quickly became apparent, before he even finished his opening remarks, that Rahimi’s attorney was a hapless idiot and the very best thing Rahimi could hope for is that his attorney doesn’t cause Rahimi to end up with an even worse outcome than if he didn’t have an attorney to begin with.
Going into this case, based on its procedural history in the lower court, and very faithful application of the Bruen Standard that came out in Rahimi’s favor in the fifth circuit and the current Court’s tendency to give more deference to the second amendment in recent years than they have in the past. On those grounds, I thought it very likely Rahimi could have gotten at least a 5 vote majority.
By the end of his counsel’s opening arguments, I saw him losing the case on a not even close 7-2 split. By the time closing arguments had been made and the case had been submitted in full it was clear he will be losing his case on an 8-1 split, if not a unanimous 9 votes to reverse the holding by the fifth circuit. I suppose this is what the fifth circuit get for taking the Supreme Court at its word in Bruen.
Following his opening arguments, Rahimi’s attorney, J. Matthew Wright faced a much tougher reception from the justices than did Prelogar. Roberts made clear that, in his view, Rahimi was not someone who should have a gun. “You don’t have any doubt that your client’s a dangerous person, do you?” he said to Wright.
Other justices appeared skeptical of Wright’s position, which Justice Elena Kagan interpreted as requiring the government to show a historical regulation “essentially targeting precisely the same kind of conduct as the regulation under review.” Despite the fact, Wright tried to walk it back by calling that a misunderstanding of his argument, it wasn’t an unreasonable interpretation. If that’s not what he was saying, that was what it sounded like to me as well. Which seems especially repugnant, because that’s precisely the same argument that many of our countries most reprehensible criminals successfully use all the time to get away with their crimes. The only difference is they don’t refer to it as a defense, they call it “qualified Immunity”. But these are two sides of the same coin.
Justice Samuel Alito chimed in, asking Wright whether his position was that, “except for someone who has been convicted of a felony, a person may not be prohibited from possessing a firearm in his home?”
Wright later hedged on that position, prompting Barrett to say that she was “so confused.” And when Wright answered “maybe” to a question about whether a legislature could ban the possession of guns by people with mental illnesses, Kagan told Wright that she believed he was “running away from [his] argument” because its implications were “just so untenable.”
Justice Brett Kavanaugh asked Wright about another possible effect of a ruling in Rahimi’s favor. In its reply brief, Kavanaugh noted, the Biden administration indicated that the federal background check system used for the sale of firearms incorporates information from domestic-violence protection orders. But if Rahimi prevails, Kavanaugh said, the system “could no longer stop persons subject to those domestic-violence protective orders from buying firearms.”
What, at this point, seems a virtual certainty is that this case will reverse the fifth circuit’s holding that 18 U.S.C. §922(g)(8) violates the second amendment, prima facie.
Additionally, I think its very likely that we will see a controlling plurality file a stern concurrence that will give what Justice Kagan referred to as “useful guidance” to the lower Courts on a “proper” application of Bruen... And when I say “proper application” what I mean is a watered down version of the Bruen test, by which I mean a re-adoption of their pre-Bruen reading of Heller, in which the Court’s pretend Justice Breyer’s dissent in Heller is controlling. This is clearly what AG Merrick Garland and SG Elizabeth Prelogar are aiming to accomplish with this case, and we need not speculate to determine that, the Solicitor General plainly said as much during oral arguments:
"The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right."
Here, the Solicitor General purports to rebuke and correct the Originalist Justices on the Court about the true meaning and scope of originalism. Now, after decades in which we have seen the most abundant and fruitful scholarship on studying and refining original public meaning, we are expected to be content getting stuck with "identifying principles" from history.
[1] "United States v. Rahimi." Oyez. Accessed November 12, 2023. https://www.oyez.org/cases/2023/22-915.
[2] Amy Howe, Justices appear wary of striking down domestic-violence gun restriction, SCOTUSblog (Nov. 7, 2023) https://www.scotusblog.com/2023/11/justices-appear-wary-of-striking-down-domestic-violence-gun-restriction/
Nat'l Rifle Ass'n of Am. v. Vullo, 49 F.4th 700, 706 (2d Cir. 2022)
Id.
Id.