The Solicitor General's response to my amicus brief in Rahimi

Only one federal firearms prohibitor does not require any specific finding of fact

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.

Section 922(g)(8)

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.

Comments

[Martinned]

What do you mean “only” 2nd Amendment case? Why would there need to be more than one? The only dispute is about whether there should be too many guns in the US or way too many.

[Stephen Lathrop]

At least this time Kopel did not proclaim historical authority. He argued as a lawyer typically argues, and left interpretation of history and tradition all but untouched.

That was wise. Because pre-revolutionary legal practice with regard to gun prohibition can be shown historically to be all over the map, varying from jurisdiction to jurisdiction, and arbitrarily from offender to offender. Social class had a lot to do with it. George Washington was free to carry pistols anywhere among the colonies. Not everyone got similar judicial deference, or any deference at all.

Urban weapons displays got different legal responses than frontier weapons displays. Thickly-settled jurisdictions enjoyed somewhat uniform legal enforcement. Thinly-settled jurisdictions might be so hard-put to find a qualified magistrate that as a practical matter only the worst felonies got legal retribution. That was true even without consideration of the various prohibited classes which Kopel and other gun advocates want to push out of the picture.

The Bruen decision is an execrable historical mess. It was written by a corrupt Justice who knows nothing at all about history, but who never hesitated to order everyone else to follow exactly his cherry-picked prescriptions for citing history—regardless of historical relevance or irrelevance—and to argue cases by relying only upon his own ludicrous misinterpretations of historical method.

To insist that any of that could deliver judicial constraint by means of, "history and tradition," is simply false. Bruen is present-minded, unconstrained, results-oriented judicial abuse of the worst kind.

[Kazinski]

Once again Stephen, you mis-state the standard set in Bruen. It is "text as informed by history and tradition".

And of course Supreme Court precedent, which saves the NFA which by the text, history and tradition test would surely fail.

[Stephen Lathrop]

Once again, Kazinski, you, like Thomas, have no notion how to interpret the context of creation of an antique text. Absent historical method, all anyone has to go on is present-minded mis-impressions, formed mostly in response to historical occurrences which post-dated the creation of the text.

Much more of what you know and believe about the past is owing to things which happened post-founding. That vastly outweighs your far-less extensive insight into pre-founding-era history and tradition. That imbalance is characteristic of essentially everyone who has not studied for years to learn how to correct it. To learn how to do that is a principal objective of a graduate education in historical method.

Would-be textual interpreters who lack that training in fact act willy-nilly as living constitutionalists. They, like Justice Thomas, are doomed to rely upon present-minded prejudices to serve up decisions which flatter preferences they brought with them to the task of textual interpretation. They do that in complete ignorance that it is even happening. There is not a bit of judicial constraint in that process.

[Jason Cavanaugh]

If your head gets any bigger, you'll throw the planet off its axis.

[WuzYoungOnceToo]

Say...aren't you the same idiot who just suggested that fed.gov "add lifetime prohibition of firearms ownership or use" as a penalty for a federal felony that already automatically carries that as a penalty?

[not guilty]

When the Bill of Rights was adopted, the law cared little about domestic violence.

Blackstone said: “The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer.” 1 Blackstone Comm., p. 444.

Contemporaneously with ratification of the Fourteenth Amendment, the Supreme Court of North Carolina opined:

Our conclusion is that family government is recognized by law as being as complete in itself as the State government is in recognized by the law as subordinate to it; and that we will not interfere with or attempt to control it, in favor of either husband or wife, unless in cases where permanent or malicious injury is inflicted or threatened, to the condition of the party is intolerable. for, however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber. Every household has and must have, a government of its own, modeled to suit the temper, disposition and condition of its inmates. Mere ebullitions of passion, impulsive violence, and temporary pain, affection will soon forget and forgive, and each member will find excuse for the other in his own frailties. But when trifles are taken hold of by the public, and the parties are exposed and disgraced, and each endeavors to justify himself or herself by criminating the other, that which ought to be forgotten in a day, will be remembered for life.

State v. Rhodes, 61 N.C. 453, 456-57 (N.C. 1868).

United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), is an execrable decision. It is, however, a straightforward application of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, ___ U.S. ___, 142 S.Ct. 2111 (2022).

[ReaderY]

The law certainly cared about marital chastisement. Within limits, it was a husband’s right.

Only in the 19th century did judicial justification change from its being a simple basic right – a husband has a moral right to be master of and control his own household, including physically disciplining his wife, as a matter of natural justice – to the concept of “marital privacy,” the state doesn’t interfere in marital domestic relations even though we might not like what they do. And in many states (including North Carolina) the right persisted well into the 20th century.

[Michael P]

guilty stopped the quote from Blackstone at a dishonest point. The very next sentence remarks "this power of correction was confined within reasonable bounds, and the husband was prohibited from using any violence to his wife", and two sentences later explains why that earlier text was about "the old law" and in the past tense:

But with us, in the politer reign of Charles the second, this power of correction began to be doubted; and a wife may now have security of the peace against her husband; or, in return, a husband against his wife.

[WuzYoungOnceToo]

guilty stopped the quote from Blackstone at a dishonest point.

I'm shocked...SHOCKED, I tell you!

[Hugh]

Jamelle Bouie's NYT column, part 1:
Anthony Mann’s 1950 western “Winchester ’73,” a rare and much-desired Winchester rifle brings misery and death to the unlucky souls who manage to bring it into their possession. In the West as brought to you by Mann — and his star, a troubled and morally ambiguous Jimmy Stewart — the gun isn’t a symbol of freedom as much as it is a curse, destined to ruin everyone who covets its power.

It was a theme echoed that year in the Joseph H. Lewis noir “Gun Crazy,” a take of sorts on the story of Bonnie Parker and Clyde Barrow. Our protagonists in this film are two young people so enamored of the power of guns — and the freedom they seem to provide — that they go on a wanton spree of theft and murder. It ends, predictably, with their own deaths.

In both films, guns become truly dangerous when they become a fetish: an object worshiped for its supposed power and symbolic meaning. Guns, Mann and Lewis seem to say, aren’t actually totems of freedom or liberty or youth; they are instruments of death and should be treated accordingly.

I thought of both movies last week during the manhunt for Robert Card, the 40-year-old suspect in a mass shooting that killed 18 people at a bar and bowling alley in Lewiston, Maine.

[Hugh]

Part 2:
For nearly two days after the shooting, no one knew where Card was. He was armed and dangerous and on the run. To prevent any more loss of life, law enforcement authorities urged tens of thousands of residents of Southern Maine to shelter in place with their doors locked. He was found on Friday night, dead from a self-inflicted gunshot.

Card is believed to have used an AR-15-style rifle in the shootings. Introduced to civilian buyers in 1964, the Armalite Rifle 15 Sporter and its offspring are now some of the most popular rifles in the United States and a potent symbol of what guns mean to tens of millions of Americans. “It’s an icon,” one owner told The New York Times in a 2018 feature on the AR-15 and similar weapons. “It’s a symbol of freedom. To me, it is America’s rifle.”

That, in fact, is how gun manufacturers have promoted the rifle — not as a tool for hobbyists and sportsmen but as a lifestyle accessory that stands for freedom, individualism and masculine self-sufficiency. “Stand out and blend in all at the same time,” reads one 2011 advertisement for a camouflage-finished assault-style rifle.

It’s not just about the AR-15, of course. For many Americans, the right to own a gun is liberty itself — the very definition of what it means to live in a free country. But the question raised by the Maine shooting, and especially the lockdown that followed, is just how free that freedom is.

[Hugh]

Part 3:
How free are you really when you know that a trip to the grocery store or a morning in prayer or a day at school or a night at the movies can end in your death at the hands of a gun? How free are you really when you protest on behalf of a cause you believe in and are met on the street by armed counterdemonstrators? How free are you really when state authorities have to lock down a city so that they can stop a mass shooter from striking again?

I have written about the fiction that an armed society is a polite society, an aphorism taken from the science-fiction writer Robert Heinlein’s novel “Beyond This Horizon,” where men carry weapons and duel with one another over perceived slights and insults. An armed society, I argued, is a society in which fear and suspicion replace trust and equal regard. And in that society, democracy cannot work.

What the Lewiston shooting shows is that society itself cannot work in a situation where guns proliferate to be used by anyone with the urge or inclination to kill. We cannot live when we fear violent death. In such a condition, there is hardly any society at all. And if there’s freedom, it is the false freedom of the state of nature, in which our weapons are always pointed and our eyes are fixed upon one another.

It’s not that guns can’t be useful, but they should be tools, not totems. They have been used to secure freedom, of course, but they aren’t freedom in and of themselves. To think otherwise is to fetishize. Perhaps it’s not a coincidence that the worship of the gun as a symbol of American freedom grew even deeper in the years after the Supreme Court, in District of Columbia v. Heller in 2008, reduced the communal language of the Second Amendment — “a well regulated militia being necessary to the security of a free state” — to an extraneous detail.

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[Idihax]

How free are you really when you can be told that your small private business must bake a cake for people like the Rev. Kirkland and other deviants who like to insert their diseased members deep into the ether of other men?

[Ed Grinberg]

How free are you really when you protest on behalf of a cause you believe in and are met on the street by armed counterdemonstrators?

I live in the Twin Cities area. A couple of years ago, some people in Minneapolis were “protest[ing] on behalf of a cause [they] believe[d] in.” They got … shall we say, carried away. There were no counterdemonstrators, armed or otherwise. The police did not interfere. The mayor’s response to the “protest” was to note, with sadness, that “the last several nights of unrest revealed 400 years of frustration in the black community.” (source) The governor was, likewise, MIA; the National Guard was not brought in to put an end to the “protest.” The tax-paying, law-abiding people in the affected area were left to their own devices.

There was a similar “protest” earlier this year in Paris, France. (Google “Nahel Merzouk riots.”) Here’s one snapshot from that “protest”:
https://twitter.com/ImMeme0/status/1674949330812190725

It is utterly foolish to rely on the likes of Jacob Frey and Tim Walz to protect you & your family. Mr. Bouie’s column is titled “America’s Rifle Fetish Is Destroying Its Sense of Freedom.” Well, that rifle, which is destroying Mr. Bouie’s sense of freedom, may one day be all that stands between your family and unchecked “protesters.”

[Ed Grinberg]

Here are some related thoughts from John Derbyshire:
https://www.johnderbyshire.com/Opinions/RadioDerb/2018-03-23.html#04

[M L]

"Here’s one snapshot from that “protest”:
https://twitter.com/ImMeme0/status/1674949330812190725

Ouch.

"A Frenchman who was trying to protect his car from being burned by violent migrants has his bones smashed and his hand cut off.

This is what Europes Multicultural Enrichment does to its own citizens."

Why is it that for every event like this, you try to search for it to confirm or find media coverage, and (A) there is no major media outlet coverage to be found, (B) all major search engines heavily suppress any kind of independent content, and instead return countless results that do not meet the search criteria?

[Brett Bellmore]

As the joke went in the USSR, "there is no information in Izvestia, there is no truth in Pravda," Welcome to the 21st century.

I think we're talking this guy?

[Longtobefree]

"An armed society, I argued, is a society in which fear and suspicion replace trust and equal regard. And in that society, democracy cannot work."

The USA was an armed society, indeed a dueling society, well into the late 1800's.

[Hugh]

Part 4:
The title of the piece is "America's Rifle Fetish is Destroying It's Sense of Freedom."
As Americans, we understand the ownership of guns as an individual right, but in so many respects it is an atomizing right. When given pride of place in our political lives, this particular right can cause the ties that bind society to fray. It can also consume the other rights we hold dear: the right to speak, the right to assemble, the right to worship and the right to live.

[Stephen Lathrop]

Bouie is a very young man to be so capable. His writing, his attention to experience, and his humane point of view are all ornaments to the NYT opinion section.

[Brett Bellmore]

"there were colonial period and Early Republic laws taking guns from individuals who had been judicially found to have misused those guns"

I have to say that "judicially found" is an awfully vague term. It would appear to cover everything from a full on felony trial with jury, to an ex parte hearing or even sua sponte action. Surely these distinctions have some constitutional significance!

[Brett Bellmore]

Anyway, as I've remarked before, that Rahmi could have his guns taken away is pretty uncontroversial. Basically nobody disputes that he could.

All the argument is over the due process required.

[Idihax]

Leftists don't want to set the precedent that due process is required, because it'll make it harder to impose their sick agenda on all other issues as well.

[Ed Grinberg]

https://www.wsj.com/articles/democrats-occupy-house-floor-to-compel-votes-on-gun-bills-1466629231
In a subsequent column, James Taranto talked about "the sitters’ authoritarian aims."

[ReaderY]

This isn’t a direct reply to the post but is on the general subject. It seems to me that one thread that could be derived from the colonial-era statutes is that a person can be deprived of firearms for conduct that puts the public in fear.

This could be interpreted objectively, conduct that would put an idealized reasonable person in fear, or subjectively, conduct that people say puts them in fear. It seems to me it could be argued that the colonial era statutes at least sometimes followed the latter course. It explains those “discredited” category exclusions which I don’t think can be wished away so easily just because they happen to be inconvenient to a 2nd-Amendment absolutist. It suggests that in the colonial era, people could be deprived of firearms simply for being scary people, or people others perceived as scary, independent of anything they actually did.

It seems to me that Professor Kopel wants to rationalize the history of gun regulation, to throw out the parts that don’t conform to modern Due Process standards, while preserving a few status-based distinctions (like prohibiting to aliens) that pass modern-day muster.

But it’s by no means clear that this results in a legitimate “historical” interpretation. If one accepts that magistrates were permitted to disarm people the public felt subjectively afraid of - prejudices and all - in situations independent of conduct in addition to conduct-based cases, then bringing this concept into modern jurisprudemce would permit a significantly wider realm of prohibition than a strictly objective, conduct based approach. When the category is not itself prohibited to government, (e.g. racial classsification), categorically based subjective fear would pass rational basis in quite a number of instances.

I’m not saying this approach should be adopted. But categorical, status-based exclusions are part of the history and I think need to be addressed with something more than mere handwaving.

[Brett Bellmore]

” It seems to me it could be argued that the colonial era statutes at least sometimes followed the latter course.”

I think you’re going to have to explain how that can be argued.

I think you had two things going on: People being targeted on the basis of actions, AND group discrimination of the sort the 14th amendment prohibits.

Of course, no 14th amendment at the time, so those exclusions wouldn't have been unconstitutional then the way they are now.

[Estragon]

“But categorical, status-based exclusions are part of the history and I think need to be addressed with something more than mere handwaving.”

I agree. It’s cafeteria history.

[Brett Bellmore]

Is it really handwaving if you point out that the 14th amendment subsequently prohibited that sort of thing?

[Estragon]

That is a comment about the precedental value, not the historical value.

Just because the nation finally listened to its better angels and decided not to curtail rights on the basis of race (or former slave status) does not memory hole the actual historical existence of these laws. The fact is that there were all sorts of laws and traditions restricting the 2A rights of all sorts of people viewed as “undesirable” by society.

[Brett Bellmore]

Yes, but you're trying to apply the precedent post-14th, remember. Originalism says that the Constitution retains its original meaning except as amended. It has been relevantly amended, so those precedents aren't good anymore.

[Estragon]

I agree they are not good precedents. It does not follow the historical value is null. And what does Bruen have to say about the value of precedent, anyways?

Were these laws only used against slaves? What about freedmen? What about scary white people, as alluded to above by ReaderY?

[Estragon]

“I agree they are not good precedents.”

I should clarify. I agree they are not good precedents for the purpose of denying someone 2A rights based on former slave status

[Brett Bellmore]

But, status as a Catholic, perhaps? Sorry, the 14th amendment was not that narrowly written.

[WuzYoungOnceToo]

I agree they are not good precedents. It does not follow the historical value is null.

In terms of evaluating current law, what is the "historical value" of past laws that have since been rendered null and void by COTUS amendment and/or judicial precedent? What does the fact that, for instance, a state statute might have existed prior to incorporation of 2A against the states that has since been rendered unconstitutional by that incorporation tell us about the validity of any such statutes today?

[Estragon]

“rendered null and void by COTUS amendment and/or judicial precedent?”

What is COTUS amendment? Were any of these laws found unconstitutional by a judge prior to the passage of the 14th?

“rendered unconstitutional”

No. One particular rationale was disclaimed. But all sorts of people were disarmed prior to the 14th. Was it only slaves? And how could you say definitively without undertaking the sort of history and tradition analysis that you and Kopel don’t want to do?

[WuzYoungOnceToo]

What is COTUS amendment?

Seriously? All this time on a constitutional law blog and you don't know what the acronym "COTUS" refers to (or perhaps...what "amendment" means)?

Were any of these laws found unconstitutional by a judge prior to the passage of the 14th?

It doesn't matter (and even if it did, perhaps they were just never challenged). They're unconstitutional now, so whatever basis there was for them being accepted at the time is no longer applicable.

But all sorts of people were disarmed prior to the 14th. Was it only slaves? And how could you say definitively without undertaking the sort of history and tradition analysis...

Did you have trouble understanding what I said about the difference between state infringements prior to protection of a right being incorporated against the states vs after that incorporation?

that you and Kopel don’t want to do?

That sort of childishly dishonest crap doesn't even merit a response.

[Estragon]

“so whatever basis there was for them being accepted at the time is no longer applicable.”

No. One basis is no longer applicable. But were these laws were applied to people whose status did not change with the passage of the 14th?
Have you ever seen “overruled on other grounds” in a citation?

What if one of these pre-14th laws restricting 2a rights was used against a white person? Or multiple white people? Does that categorically have no value when considering history and tradition?

“That sort of childishly dishonest crap doesn’t even merit a response.”

But that’s what Kopel is saying. The pre-14th laws are “categorically excluded” from the history and tradition analysis he wants to do. Your response is childish.

[Estragon]

“What is COTUS amendment?”

No, I have never seen that phraseology. However, it’s been several years since law school and memory is a funny thing.

[WuzYoungOnceToo]

What if one of these pre-14th laws restricting 2a rights was used against a white person? Or multiple white people? Does that categorically have no value when considering history and tradition?

You keep saying "no value" without specifying what it might be valuable for. But, no...if a state/local statute restricted a constitutionally protected right in a way that is no longer permissible due to an amendment or SCOTUS (do you need that one explained too?) precedent then it is of no historical value when evaluating the constitutionality of a different law today...much the same way that the past legality of slavery is of no value when determining whether or not a law infringing the fundamental rights of black people today is permissible.

But that’s what Kopel is saying. The pre-14th laws are “categorically excluded” from the history and tradition analysis he wants to do.

And again, you're being dishonest. Saying something is not necessary or applicable is not the same as saying, "I don't want to do it". And you also pretended to know what I do/don't "want to do". No, the childishness here is all yours.

[WuzYoungOnceToo]

No, I have never seen that phraseology. However, it’s been several years since law school and memory is a funny thing.

So...you went to law school, but couldn't figure out the meaning of "COTUS amendment" in the context of a discussion about the Constitution Of The United States and amendments thereto?

[Estragon]

You keep saying no precedental value = no historical value. But it doesn’t follow.

“So…you went to law school, but couldn’t figure out the meaning of “COTUS amendment” in the context of a discussion about the Constitution Of The United States and amendments thereto?“

I stand by what I said, I have never seen “COTUS amendment.” That’s why I asked what you meant. Lawyers usually say constitutional amendment, possibly to avoid confusion with “SCOTUS” which is used more widely. How long ago did you go to law school?

I’m going to take a hint from your increasingly snarky and rude responses here.

[WuzYoungOnceToo]

But that’s what Kopel is saying. The pre-14th laws are “categorically excluded” from the history and tradition analysis he wants to do.

BTW...why are you quoting "categorically excluded" above when Kopel said no such thing, either here or in his amici brief?

[WuzYoungOnceToo]

You keep saying no precedental value = no historical value.

I never said that at all. Why do you keep claiming that people have said things that they've never said (while simultaneously ignoring the bulk of what they have said)?

[Brett Bellmore]

I'm sure these old, constitutionally banished laws have historical value. In the sense that they tell us about history.

They just don't have any legal value.

[Kazinski]

Absolutely, keep them in the history books, but don’t allow them in the courtroom.

They have no value in a brief if the court must discard them as having no precedential value.

The test in Bruen is "text, history and tradition". The "text" includes "No person shall ... be deprived of life, liberty, or property, without due process of law", as much as it includes "the right of the people to keep and bear arms shall not be infringed".

Depriving someone of the liberty interest in their right to keep and bear arms without due process is clearly unconstitutional.

[Joe_dallas]

Kaz- slight disagreement
They have value to cite as precedent to explain why that precedent is no longer valid. Along with explaining why subsequent cases relying on that precedent are likewise no longer valid

[ReaderY]

No, Bruen came up with an analysis based on history and tradition, not text alone, to tell when guns can be prohibited. That’s what Bruen held.

You can’t use Bruen whenever it supports your position and then turn around and argue it’s wrong whenever it becomes a problem for you. Your argument that text as you interpret it should always trump history and tradition whenever the two disagree, is an argument that Bruen is wrong and should be overruled.

[ReaderY]

What is your basis for claiming the 14th Amendment “prohbited that sort of thing?” The 14th Amendment applies a small number of specific categories to heightened scrutiny. All other categories are up for grabs.

So there’s it’s definitely possible to come up with categories that are directly analogous to categories that resulted in categorical exclusion from gun possession in colonial times, yet are not considered suspect classes for 14th Amendment purposes and hence are not subject to any special heightened 14th Amendment scrutiny.