The Volokh Conspiracy
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On November 7, the Supreme Court will hear oral argument in the only Second Amendment merits case this term, United States v. Rahimi. (Docket page.) In that case, twenty-one amicus briefs urged the Court to affirm the Fifth Circuit's decision. On October 25, the Solicitor General, who is asking the Supreme Court to overturn the Fifth Circuit, filed its reply brief. The reply brief addresses only a single one of the amici briefs, namely the one that I coauthored; the amici included the VC's Randy Barnett. Because the Solicitor General considered that amicus brief important enough to address, I thought that readers might be interested in some further analysis. In my view, the SG brief fails to address the unique constitutional infirmity of one of the statutory sections at issue.
Rahimi involves 18 U.S.C. 922(g)(8), which imposes a prison sentence of up to 15 years for firearm possession by everyone subject to certain domestic restraining orders. In the amicus brief, we wrote:
The statute bans firearms possession based on two different types of court orders:
"(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;"
Because (C)(i) requires a judicial finding of dangerousness, it does not infringe the Second Amendment. Subsection (C)(ii) does not require such a finding and is an infringement. Judicial orders that acrimonious domestic parties not do something illegal in the future is not equivalent to a judicial finding that there is "a credible threat" of illegal behavior. Congress could easily fix the problem by changing the "or" at the end of (C)(i) to "and." Alternatively, subsection (C)(ii) could be severed.
Here is the discussion from the footnote on page 15 of the Solicitor General brief:
* Amici Professors of Second Amendment Law accept (Br. 28-29) the validity of Section 922(g)(8)(C)(i) because it "requires a judicial finding of dangerousness" but reject Section 922(g)(8)(C)(ii) because it does not require a specific finding. That is wrong. History and tradition establish legislatures' authority to disarm dangerous or irresponsible categories of persons, and the category of individuals subject to protective orders specifically prohibiting the use of force against partners or children surely qualifies. In any event, any defect in subparagraph (C)(ii) would not assist Rahimi because his order included the finding required in subparagraph (C)(i). Gov't Br. 4-5.
The SG brief accurately quotes our brief, although how we "accept" Section 922(g)(8)(C)(i) has some caveats. We agree with the Solicitor General that the original meaning of the Second Amendment, as elucidated by American historical tradition, is consistent with restricting Second Amendment rights of persons whose individual behavior shows them to be dangerous to others. That is why subsection (C)(i) does not infringe the Second Amendment.
However, our brief took no position on the due process issues of (C)(i). Those are addressed in the amicus briefs of the Bronx Defenders Union and National Association of Criminal Defense Lawyers, and the Alameda County and California Public Defenders. Likewise, the brief took no position on whether the restrictions imposed by section 922(g)(8)—a prison sentence of up to 15 years for possession of a firearm, even in the home—are comparable to historic restrictions on persons judicially found to be dangerous to others. Our amicus brief did say that some aspects of the firearms possession prohibitions 922(g) are insupportable by the Interstate Commerce Clause.
Our main disagreement with the Solicitor General is about subsection (C)(ii). The SG is correct that the domestic violence restraining order against Mr. Rahimi was issued under (C)(i), and so the Supreme Court could uphold his conviction for violating (C)(i); at the same time the Court could (and in our view, should), hold that (C)(ii) infringes the Second Amendment, and sever that subsection. The federal Gun Control Act has an express severability clause. 18 U.S.C. 928.
In defense of (C)(ii), the SG argues:
History and tradition establish legislatures' authority to disarm dangerous or irresponsible categories of persons, and the category of individuals subject to protective orders specifically prohibiting the use of force against partners or children surely qualifies.
The SG argument has two weaknesses.
- First, the claim about categorical disarmament is incorrect, at least in terms of original meaning.
- Second, even if the categorical prohibitions enacted in the twentieth century can be used as precedents consistent with Bruen, they still don't rescue 922(g)(8)(C)(ii), which is a unique infringement. It is the only federal firearms prohibition that does not "require a specific finding."
As for original meaning, there were colonial period and Early Republic laws taking guns from individuals who had been judicially found to have misused those guns—such as by carrying arms to terrorize the public, or in a manner threatening to breach the peace. The SG opening brief cited these laws, and our amicus brief agreed with them.
The Solicitor General properly and explicitly rejected reliance on categorical disarmament laws from the original meaning period. Those laws aimed at Catholics (two colonies in 1756, at the start of the French & Indian War), slaves, or free people of color. Our amicus brief had explained why reliance on these bad laws by some of the SG's amici was incorrect.
The Department of Justice's rejection of these laws in Supreme Court briefing is purely tactical; in lower courts, the DOJ continues to claim that old laws that were rejected by subsequent constitutional enactments are still valid precedents for modern gun controls. For example, an October 30, 2023, brief in the Tenth Circuit argues that the two 1756 colonial laws against Catholics at the beginning of the French & Indian War are justifications for banning firearms possession by marijuana users. DOJ brief at 6, 13, 16, 18.
Once we put aside the prejudiced categorical laws that the SG does not invoke at the Supreme Court level, there are few precedents for categorical restrictions on arms rights of groups of people.
First, starting with an 1856 Alabama law against selling handguns to male minors, some states restricted the purchases of handguns, Bowie knives, and some other weapons by minors, or by minors who did not have parental consent. By the end of the 19th century, a significant minority of states had such laws. SG opening brief at 24-25. Whether laws about children are strong precedents for laws about adults seems questionable.
In the latter 19th century, a few states enacted laws against firearms carrying by "tramps"—often defined as itinerants who were away from their home county, and had no means of support. There were also against firearms sales to the insane, or to persons who were intoxicated. SG opening brief at 25-26.
Then in the twentieth century, other categorical restrictions became common, most notably in the federal Gun Control Act of 1968. Examples include: persons convicted of a crime that could be punished by over a year in prison; unlawful users of controlled substances; persons unlawfully in the United States; persons convicted of domestic violence misdemeanors; persons dishonarably discharged from the military; persons who have been adjudicated to be a "mental defective"; and persons who have renounced their American citizenship. 18 U.S.C. 922(g).
The bans on unlawful aliens and on persons who have renounced citizenship are easy to uphold without historical inquiry. The Second Amendment protects "the right of the people," and neither unlawful aliens nor citizenship renouncers are among "the people" of the United States.
The Solicitor General is correct to say that the federal prohibitions that do apply to some of "the people" are based on Congress deciding some categories of persons are inherently dangerous.
However, none of the other prohibitions are comparable to section 922(g)(8)(C)(ii). Other than (C)(ii), every prohibition in the Gun Control Act requires that a decision-maker must made "a specific finding" about an individual. Here is a list of the government's burden of proof for "a specific finding" for each of the firearms prohibitors in 922(g). We start at the top, and will finish with 922(g)(8)(C)(ii), which does not require proof of anything.
Proof by documents that an individual chose to file with the U.S. government
Federal law bans firearm possession by someone "who, having been a citizen of the United States, has renounced his citizenship." 18 U.S.C. 922(g)(7). To prove renunciation, the prosecution would have to introduce into evidence the documents that an individual had to file in order to renounce citizenship. Renunciation requires not only the documents, but also a personal appearance at a government office to take an oath of renunciation, and payment of a $2,350 fee.
Prior conviction of a crime beyond a reasonable doubt
Other prohibitors are based on criminal convictions, which of course require proof beyond a reasonable doubt, or a guilty plea. "[W]ho has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" 18 U.S.C. 922(g)(1); "who has been convicted in any court of a misdemeanor crime of domestic violence" 922(g)(9).
A similar prohibitor is "who has been discharged from the Armed Forces under dishonorable conditions." 922(g)(6). As in civilian courts, the standard for a court martial to convict someone of crimes leading to a dishonorable discharge is proof beyond a reasonable doubt.
Proof beyond a reasonable doubt at a prohibition enforcement trial
Two of the 922(g) prohibitors require the government to prove "a specific finding" beyond a reasonable doubt in a prosecution to enforce the prohibitions. One prohibition is for anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))." 18 U.S.C. 922(g)(3). The prosecution would have to prove the unlawful use or the addiction beyond a reasonable doubt.
Another category bans firearms possession by illegal or unlawful aliens, or, under some circumstances, by aliens admitted with nonimmigrant visas. "[W]ho, being an alien—(A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))." 18 U.S.C. 922(g)(5).
To win a conviction, the government would have to prove that the defendant is a person in the described category of aliens.
Lower standards of proof
The prohibitor "adjudicated as a mental defective"(922(g)(4)) typically requires the adjuticator to find that the person is "a mental defective" at some civil standard of proof. The adjudicator must specifically find that the individual is "(1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs." 27 C.F.R. 478.11.
Under section 922(n), a person who has been indicted may keep the arms and ammunition that he already owns, but not acquire more. Post-Bruen, U.S. district courts have split on the constitutionality of section 922(n). See, e.g., United States v. Kays, No. CR-22-40-D, 2022 WL 3718519 (W.D. Okla., Aug. 29, 2022) (upholding); United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482 (W.D. Tex., Sept. 19, 2022) (holding unconstitutional).
An indictment is based on the standard of probable cause, and the grand jury typically hears only the prosecutor's side of the case. Although the due process is weak, the government still has the burden of proving specific findings of probable cause for every element of the alleged crime.
Finally, there is the federal prohibition for a person "who has been committed to a mental institution." 18 U.S.C. 922(g)(4). This means an "involuntary" commitment for inpatient or outpatient treatment. 27 C.F.R. 478.11.
In Pennsylvania, a doctor can order a person to be examined within two hours at a treatment facility. The person can then be involuntarily committed if the examining physician at the treatment facility specifically finds that the person is "severely mentally disabled" and poses a "clear and present danger of harm." See, e.g., Doe I v. Governor of Pennsylvania, 977 F.3d 270 (3d Cir. 2020).
Unlike the prohibitors that are based on factual findings by a jury or grand jury, the involuntary commitment prohibition is based on a factual finding by a physician. But at least there must be a factual finding.
Subsection 922(g)(8)(C)(i) requires a factual finding by a judge that a person poses "a credible threat" to an "intimate partner" or child. In most states, the civil burden of proof—by a preponderance of evidence—would apply.
In contrast—and uniquely among all the federal statutory prohibitors, subsection (C)(ii) requires no fact-finding by anyone. The prohibition is simply created by a court order that
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
As we said in the amicus brief, "Judicial orders that acrimonious domestic parties not do something illegal in the future is not equivalent to a judicial finding that there is 'a credible threat' of illegal behavior."
In fact, as noted by Judge Ho's concurrence in the Fifth Circuit Rahimi case, and in the Defender briefs, there is a widespread problem of judges perfunctorily issuing mutual restraining orders in domestic cases. As a result, an abuser and a victim may both be disarmed.
Subsection 922(g)(8)(C)(ii) is an outlier. It is the only federal gun prohibition for any of "the people" that at no stage of the process requires any finding of fact about a prohibited person. It is therefore a facial infringement of the Second Amendment.
Alone among congressional arm prohibitions, subsection 922(g)(8)(C)(ii) extinguishes the right of firearms self-defense without an iota of fact-finding. It disarms the just and the unjust. Ordered liberty is not so promiscuous in depriving the right to defend self and others.