Old gun controls that were constitutionally repealed are not precedents for modern gun control

Amicus brief in Supreme Court's Second Amendment Rahimi case

This week amicus briefs were filed in United States v. Rahimi, the only Second Amendment merits case currently before the Supreme Court. The docket page for the case is here. I will be blogging later about various briefs in the case. This post describes the amicus brief that I filed, available here.

The case involves the constitutionality of 18 U.S.C. sect. 922(g)(8), which imposes a federal prison sentence of up to 15 for persons who possess a firearm while subject to certain state-issued restraining orders. The amici are several law professors, including the VC's Randy Barnett, the Second Amendment Law Center, and the Independence Institute, where I am Research Director. My co-counsel on the brief was Konstandinos T. Moros, of the Michel & Associates law firm, in Long Beach, California.

The bottom line of the brief is that subsection 922(g)(8(C)(i) does not infringe the Second Amendment; it restricts the arms rights of individuals who have been found by a judge to be a "credible threat" to others. In contrast, subsection 922(g)(8(C)(ii) does infringe the Second Amendment, because it does not require any such judicial finding. The brief addresses the question of "who" may be restricted in the exercise of Second Amendment rights; the brief takes no position on questions of "how"–such as what due process is required, or whether the severity of 922(g)(8) ban is comparable to historic laws restricting the exercise of arms rights.

The main purpose of the brief is to describe what sorts of historic laws can serve as precedents or analogues for modern gun control laws. The brief agrees with the Solicitor General that modern laws against persons who have been proven to be dangerous are supported by the common law and by historic statutes against persons who carried arms to terrorize the public or threatening to breach the peace.

However, several amici in support of the Solicitor General, as well as the Department of Justice in cases in lower courts, also rely on old laws based on invidious discrimination–such as against Catholics, slaves, free people of color, and so on. The modern attorneys who cite old discriminatory statutes as precedents in favor of gun control always make a disclaimer that they don't agree with the old laws, but the attorneys then claim that these laws still guide the current meaning of the right to keep and bear arms.

The amicus brief explains the error of such thinking. Arms rights discrimination has been obliterated by constitutional enactments. It is the constitutional enactments that define our constitutional right to arms. The right is not defined by the old abuses that the constitutional enactments were designed to stop:

As legal historian Sir Henry Maine observed, "the movement of the progressive societies has hitherto been a movement from Status to Contract." Henry Maine, Ancient Law 182 (1861). Similarly, the progress of the right to arms has been constitutional enactments to repudiate unjust exclusions.

Here is the Summary of Argument:

This brief addresses "who" may be deprived of the right to arms. Some lower courts have had difficulty discerning lessons to draw from historical laws disarming various groups.

Constitutional enactments about the right to arms have added specificity to the right. When a constitutional enactment forbids depriving a particular group of the right to arms, the prior laws targeting that group are repudiated as legitimate precedents from which modern gun control analogies may be drawn.

The 1689 English Bill of Rights, which is part of the British Constitution and was applicable in America, repudiated deprivation of arms rights because of peaceful political disagreement or because of adherence to a Protestant denomination that was not the established Church of England. The 1689 enactment allowed some restrictions based on economic or social class, and did not protect non-Protestants.

The 1788 United States Constitution rejected arms restrictions for persons whose religious scruples did not allow them to "swear" an "oath."

The 1791 Second Amendment rejected arms rights limitations based on religion or class/income. Therefore, the short-lived 1756 anti-Catholic laws in two colonies have no validity as post-1791 precedents for limitations on Second Amendment rights.

The 1865 Thirteenth Amendment abolished all the "badges and incidents" of slavery. Being disarmed is an incident of being enslaved. Hence, the Thirteenth Amendment obliterated the precedential value of earlier statutes forbidding slaves to have arms or allowing possession only with a discretionary license.

All four clauses of section one of the 1868 Fourteenth Amendment finished the work. Prior statutes imposing arms restrictions on free people of color were thereafter negated as precedents for arms restrictions.

During the American Revolution, some "Loyalists" still considered themselves "subjects of the King of Great Britain," and not "the people of the United States." Textually, Second Amendment rights inhere only in "the people" of the United States.

Similarly, when the Constitution was ratified, Indians were members of foreign nations. Their relations with the United States were governed by treaties ratified by the Senate. Later, Indians became citizens of the United States, with the right to keep and bear arms. The colonial and Early Republic arms laws about Indians who were members of other nations are valid precedents today for arms laws applying to citizens of foreign nations.

The precedents about members of foreign nations are not useful here, because Mr. Rahimi is a U.S. citizen, and hence one of the people of the United States.

However, as accurately catalogued in the Solicitor General's brief, there is ample original meaning precedent for limiting an individual's arms rights based on a judicial finding that the person poses a danger to others. Therefore, state statutes addressing the same subject as 18 U.S.C. §922(g)(8)(C)(i) can comply with the Second Amendment.

While subsection (C)(i) requires finding of "a credible threat," subsection (C)(ii) does not, and therefore is an infringement. The problem could be solved by changing a single word between §922(g)(8)(C)(i) and (ii): "or" to "and." Making (C)(i) and (C)(ii) conjunctive instead of disjunctive would remedy the infringement in (C)(ii).