The Volokh Conspiracy
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Second Amendment Roundup: Fusillade of Amicus Briefs Filed in Rahimi
A strong case is made against the ban on gun possession by persons subject to a DVRO.
A fusillade of amicus briefs has now been filed in support of affirmance of the Fifth Circuit's decision invalidating the federal ban on possession of a firearm while under a domestic violence restraining order (DVRO). While no one countenances the alleged behavior of respondent Zackey Rahimi, the various amici persuasively argue that the federal law – 18 U.S.C. § 922(g)(8) – facially violates the Second Amendment.
In this post, I'd like to identify some of the briefs that I thought to be extraordinary. All of the briefs are easily accessible in the docket on the Supreme Court's website.
But first I'd like to mention the Brief of Respondent, filed on behalf of Mr. Rahimi. Lead counsel is Matthew Wright, Office of the Federal Public Defender, N.D. Tex. The brief covers all of the bases of text and history, as mandated by the Court in NY State Rifle & Pistol Ass'n v. Bruen, and in particular does a thorough job of recording how the founding generation responded to interpersonal and domestic violence. That generation responded in numerous ways, but never by banning possession of arms. Contrary to myth, numerous men were jailed for spousal abuse in the new nation.
Public defenders are underappreciated, but they do God's work by providing counsel to indigents. Kudos to Mr. Wright's team for their professionalism.
Disclosure: I filed a brief on behalf of the National African American Gun Association. It focuses on the purported historical analogues relied on by the United States, such as bans on arms possession by "Greasers," "tramps," and "vagrants," which were traps for involuntary servitude. The government also cites the confiscation of arms by oppressive British monarchs, seizure of the arms of Loyalists by our own patriots in the Revolution (there was a war going on after all), and wholly irrelevant laws against gun sales to children and intoxicated persons.
The government also argues that the development of repeating arms after the Founding justifies § 922(g)(8) as warranted by "novel modern conditions." However, technological innovation in arms did not increase domestic violence, given the prevalent use of knives, blunt instruments, and bare hands by abusers.
Now on to the high points in some of the other briefs, in no special order.
In states like California and New York, DVROs are handed out like beads thrown from floats at Mardi Gras. Judges routinely sign on the dotted lines with little pretense to due process. These practices are detailed in the briefs of the Alameda County Public Defenders et al. and The Bronx Defenders Union and National Association of Criminal Defense Lawyers.
Is domestic violence something new that was unknown to the Founders, necessitating novel firearm restrictions? The brief of historian Angus Kirk McClellan has the obvious answer: No. "Domestic violence was a serious social problem at the founding and throughout the nineteenth century." Did English and early American law tolerate cruelty by abusive husbands to wives? The answer is also no, as McClellan demonstrates. For instance in 1687, in the colony of Pennsylvania, wife Hannah Overton brought evidence of husband Thomas Tunneclif's abuse toward her and their children. The court ordered him to give a good behavior surety which could be levied against his property. Had he not done so, he would have been jailed. McClellan also details the Founding-era surety system, which was the historical, common-law way of addressing threats of interpersonal violence. It did not involve disarmament.
On § 922(g)(8)'s failure to provide due process protections, check out the gold-star brief by Dan Peterson on behalf of Law Enforcement and Firearms Rights Groups. The federal law provides no standard of proof for issuance of a DVRO under state law, such as the "clear and convincing evidence" standard, in order to trigger § 922(g)(8)'s possession ban. Nor does it require the right to counsel or to a live hearing, where evidence can be proffered, witnesses can be cross-examined, and other procedures necessary to fundamental fairness can be followed.
A return to a "reasonableness" test to determine the validity of restrictions on the Second Amendment is advocated not just by amici for the United States, but also by some supporters of the right. But, as Cooper & Kirk's brief on behalf of the Center for Human Liberty demonstrates,
that is "obviously an invitation to the very type of untethered judicial policymaking rejected in Heller and Bruen." This brief also systematically rebuts the government's case, showing that § 922(g)(8) cannot be reconciled with the history of firearm regulation in this country, particularly because it disarms individuals who have not been found to present an imminent threat of violent criminal conduct.
As to the arguments by amici for the United States to "convert long-rejected invidious discrimination into modern constitutional precedent," David Kopel's brief on behalf of Professors of Second Amendment Law demonstrates how they "overlook the arms-related constitutional enactments repudiating the invidious laws. The right to arms is governed by constitutional enactments, and not by abuses the enactments were designed to stop."
Rahimi preserved the argument that, aside from the Second Amendment, Congress has no power under Article I, § 8, of the Constitution to restrict mere possession of arms. The brief of the Firearms Policy Coalition explains how no such power exists under either the Militia Organizing Clause or the Commerce Clause to prohibit possession of firearms. The Justices could avoid the Second Amendment arguments altogether by holding that the Framers of our Constitution plainly gave Congress no authority to regulate non-economic, intrastate matters like the relationship between intimate partners and the mere possession of a firearm in the home.
These are some of the highlights, and there are other fine briefs. David Kopel will also be blogging about the various briefs.
Meanwhile, the United States has filed a cert. petition in Garland v. Range. In that case, the Third Circuit held en banc that the federal ban on possession of a firearm by a felon is invalid as applied to a person who was not convicted of a violent felony and is not dangerous. The government suggests that the Supreme Court hold the petition until Rahimi is decided, and then dispose of the petition as appropriate. I will provide an update on the case when Mr. Range has filed his response
