Supreme Court Skirts Due Process Violation In Second Amendment Case
Supreme Court Wrap-Up for U.S. v. Rahimi, No. 22-915 (U.S. June 21, 2024)
United States v. Rahimi, No. 22-915 (U.S. Jun. 21, 2024)
Greetings everyone! Today we have the actually very last case from my Supreme Court Roundup to wrap up. I realize in my last post I said that the NetChoice cases were the final cases for this term…
NetChoice Decision Drowning In Dicta
Chronologically speaking, that is accurate, but as I noted in my Netchoice case wrap-up, I have been incredibly busy lately and my coverage of the incredibly important Rahimi decision somehow got lost in the hustle and bustle that is my life at the moment.
For an update about what you can expect from us here at Legalese over the next year, please read onto the end of the article.
Background & Procedural History
In 2020, a Texas court entered a civil protective order against Zachary Rahimi after an incident in which Rahimi assaulted his girlfriend in a parking lot. This protective order specifically barred Rahimi from possessing a gun. Several months later, Rahimi was a suspect in a series of shootings. After obtaining a search warrant, police found a rifle and pistol in his home, leading prosecutors to charge him with violating federal law, 18 U.S.C. § 922(g)(8), which prohibits the possession of a firearm by persons subject to domestic-violence restraining orders (United States v. Rahimi, No. 22-915, n.d.).
Rahimi challenged his conviction under the Second Amendment. He pointed to District of Columbia v. Heller, 554 U. S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), which held that the Second Amendment protects an individual right to keep and bear firearms.
Therefore § 922(g)(8) violates that right by penalizing firearms possession. The District Court rejected Rahimi’s claim, applying a form of means-end scrutiny to Second Amendment claims. Applying Circuit precedent, the Fifth Circuit affirmed the District Court (United States v. Rahimi, No. 21-11001, n.d.)
Less than a month after the Fifth Circuit affirmed Rahimi's conviction, the Supreme Court would issue its opinion in New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___ (2022). They would reject the lower court's application of means-ends scrutiny as inconsistent with the Heller precedent. Bruen's framework requires the Government to prove that the “regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” (New York State Rifle & Pistol Association, Inc. V. Bruen, 597 U.S. ___ (2022), n.d.).
Rahimi argued that in light of the Supreme Court's decision in Bruen, that § 922(g)(8) violated the Second Amendment. The U.S. Court of Appeals for the Fifth Circuit agreed, vacating an earlier judgement and instead finding that under Bruen's framework of text, history and tradition, the Government need not identify a "historical twin"; rather, a "well-established and representative historical analogue" would suffice. But the Fifth Circuit found the government had failed to provide such an analogue, necessary for the law to survive (Legalese, 2024).
Question Presented
Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment?
Whether § 922 is facially invalid, requiring the entire statute be struck down as unconstitutional?
Rules
Under federal law, 18 U.S.C. § 922 deals with the unlawful possession of a firearm by a prohibited person (18 U.S. Code § 922 - Unlawful Acts, 2010).
§ 922(g)(8) says that it shall be unlawful for any person to possess a firearm if that person is subject to a court order that restrains such person from harassing, stalking or threatening an intimate partner or engaging in conduct that could put that intimate partner in fear of bodily injury.
The Second Amendment reads:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
I
In United States v. Salerno, the Supreme Court found that to successfully mount a facial challenge, a person “must establish that no set of circumstances exists under which the [law] would be valid.”
Under the Bruen decision the Court found:
When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation.
~ New York State Rifle & Pistol Assn., Inc. v. Bruen (U.S. Jun. 23, 2022)
II
In the Rahimi case, the Court explained that consistent with their decision in Bruen, courts should look at whether the modern regulation being challenged is “relevantly similar” to historical regulations. And in so doing, Chief Justice Roberts stressed, courts should focus on the purpose of the regulation and the burden that it places on the Second Amendment right to bear arms.
“For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. ”
~United States v. Rahimi, No. 22-915, 11 (U.S. Jun. 21, 2024).
In Rahimi, the Court would survey early English and American gun laws and conclude that at the time the Second Amendment was ratified: “Our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” (United States v. Rahimi, No. 22-915, 9 (U.S. Jun. 21, 2024).
III
Justice Thomas would dissent, finding that no single historical regulation justified the statute at issue and identified the following issues in the majority opinion:
§ 922(g)(8), unlike other subsections of the law, [see: §§ 922(g)(1), 922(g)(9)] does not require a finding that such persons have ever actually committed the crime of domestic violence. As an automatic, uncontestable consequence of certain orders § 922(g)(8) strips an individual of their rights to possess firearms and ammunition without any due process.
When considering if a modern regulation is consistent with a historical regulation, the court's precedents point towards two metrics: how and why the regulation burdens the right to armed self-defense. § 922(g)(8) does not comport with either metric.
The historical regulation the government points to regarding disarming "dangerous" individuals, point to regulations of those who have been found to be dangerous following a criminal conviction, in which they were afforded due process. Therefore, § 922(g)(8) does not comport with the historical metric of why an individual could be disarmed.
The historical regulation of firearms, even when addressing a similar societal problem as that of § 922(g)(8), namely disarming "dangerous individuals" did so through the materially different means of surety laws. Therefore, § 922(g)(8) does not comport with the historical metric of how an individual could be disarmed.
For those reasons, Justice Thomas would conclude:
“Not a single historical regulation justifies the statute at issue, § 922(g)(8)” ~United States v. Rahimi, No. 22-915, 72 (U.S. Jun. 21, 2024)
IV
As applied to the facts of this case, the Court found that § 922(g)(8) 'fits comfortably within our Nation's historical tradition of firearms regulations.' Therefore, when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment (United States v. Rahimi, No. 22-915, n.d.).
Finally… Is there a federal court case you would like to see me cover? Or perhaps a media article you would like me to respond to? Or perhaps an enacted law or regulation you would like me to discuss? Of course, you can always make a request— and with the Supreme Court on break until this coming fall term, this would be an ideal time to do so.
But don’t forget that if you become a paid subscriber to the show through either a Substack or Locals membership, not only are you playing a vital role in helping me to support and grow the channel— One of the most enticing (paid subscriber only) perks is a guaranteed topic request. Your support gets you a minimum 1800 word article or (at least) 20 minute video, devoted entirely to discussing any topic request you may have…
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Citations
18 U.S. Code § 922 - Unlawful acts. (2010). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/18/922
Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024). (n.d.). Justia Law. Retrieved July 16, 2024, from https://supreme.justia.com/cases/federal/us/603/22-451/
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022). (n.d.). Justia Law. https://supreme.justia.com/cases/federal/us/597/20-843
Strasser, R. (2017, June 5). Second Amendment. Legal Information Institute; Cornell Law School. https://www.law.cornell.edu/wex/second_amendmentLinks to an external site.
United States v. Rahimi, 61 F.4th 443.
https://casetext.com/case/united-states-v-rahimi-13
United States v. Rahimi, No. 21-11001.
https://casetext.com/case/united-states-v-rahimi-11
United States v. Rahimi, No. 22-915.
https://casetext.com/case/united-states-v-rahimi-16
United States v. Salerno, 481 U.S. 739.
https://casetext.com/case/united-states-v-salerno-7
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