The Volokh Conspiracy

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Second Amendment Roundup: A miscellany of errors in Justice Department's Rahimi reply

The Government’s reply brief contains a host of mistakes, some quite elementary.


In two previous posts (here and here) I've pointed out some erroneous arguments by Merrick Garland's Justice Department in its reply brief filed in United States v. Rahimi. That's the case in which the Fifth Circuit recently struck down a federal statute imposing additional penalties, including a ban on the possession of firearms, on individuals subject to state domestic violence restraining orders (DVROs). The Supreme Court will hear argument in the case on November 7.

Here are several more, ranging from basic errors to nonsensical arguments. Each begins with a quote from the reply brief in italics, followed by a rebuttal.

"Rahimi next objects to the government's reliance on 19th-century surety statutes, under which potentially irresponsible persons could be required to post bond in order to carry firearms. But those laws illustrate the principle that legislatures may keep firearms away from those who are apt to misuse them."

Not so.  The person would simply post the bond or obtain sureties and keep on carrying. Even if the person violated the conditions imposed on them, the remedy was forfeiture to the government of the sum pledged, not loss of the right to arms. See the note at the end of this post regarding the research of Angus McClellan, Ph.D., that shows how surety laws were used to prevent spousal abuse.

"In criticizing those historical laws, however, Rahimi ignores that past lawmakers' failure to enact firearms laws can likewise reflect prejudice.  For example, past generations' failure to disarm domestic abusers may have reflected greater tolerance of domestic abuse, the belief that state intervention would undermine marital harmony, or women's inability to vote before the Nineteenth Amendment."

So the absence of any analogue even though the same societal problems existed somehow becomes an analogue because today we're better than the Founders? In identifying historical analogues, the burden is on the government to point to real laws that were actually passed and enforced, not to make excuses regarding why imaginary laws were not passed.  And, by the way, domestic abuse was widely condemned at the time of the Founding, and measures were enforced to prevent or punish it. Again, see the note at the end of this post.

"Rahimi cites no historical sources or judicial decisions—literally nothing—suggesting that legislatures lack authority to disarm dangerous individuals."

One of the most elementary points in Bruen is that it is the government's burden to provide historical analogues demonstrating that a present-day law is within the Nation's tradition of firearms regulation.  It is not the burden of a plaintiff who is challenging a law that infringes on conduct protected by the text of the Second Amendment. Analogous to a criminal defendant (who is presumed innocent), a Second Amendment-supporting party need not do anything concerning the "history" part of the "text and history" methodology of Bruen yet still prevail—if the government fails to satisfy its burden. In Rahimi, 922(g)(8) infringes both on the right to keep and to bear arms and is presumptively unconstitutional unless the government can justify it through historical analogues.

Also, that is a highly specific task under Bruen, and whether "dangerous individuals" can be disarmed is a test that operates at far too high a level of generality. And as Bruen explained, where the historical record is ambiguous or unclear, the presumption is in favor of the Second Amendment's unqualified command.

"Rahimi also argues … that state courts rubber-stamp applications for protective orders. But that argument ignores the "presumption of regularity" that traditionally attaches to judicial orders. Parke v. Raley, 506 U.S. 20, 29 (1992) …."

Parke involved a collateral attack on two convictions that were "never appealed" and "became final years ago," and "he now seeks to revisit the question of their validity in a separate recidivism proceeding." That is a far cry from the claim made by Rahimi that under the disarmament scheme of § 922(g)(8) there are inadequate safeguards against wrongful deprivations of Second Amendment rights. This is demonstrated by the extremely high rate at which protective orders are granted, the minimal process that is generally observed, and the terms of § 922(g)(8) itself.

Rahimi has not raised a collateral attack on the protective order in his case. Had he done so, Parke's presumption of regularity might have applied.  Instead, Rahimi is questioning the constitutionality of § 922(g)(8) based on, among other things, the wholesale stripping of Second Amendment rights from individuals due to defective and arbitrary procedures and legal standards.

"Rahimi errs in arguing … that the Second Amendment requires the government to invoke the criminal process in order to disarm dangerous persons. … 19th century surety laws invoked the civil process, see id. [Gov't Br.] at 24."

The Gov't Br. at 24 described the surety laws requiring the posting of bond, but these laws were not characterized as "invoking the civil process."  Given that one who didn't post bond would be incarcerated until he did, this was very much a criminal process. In any event, whether civil or criminal the surety laws did not disarm anyone.

"Rahimi also argues … that Section 922(g)(8) raises special constitutional concerns because it applies nationwide, and that comparable state laws might comply with the Constitution even if Section 922(g)(8) does not. That contradicts McDonald's holding that the Fourteenth Amendment makes the Second Amendment "fully applicable" to the States." 

The Fourteenth Amendment is irrelevant to Rahimi's argument.  There is no historical federal tradition of regulating domestic relations.  It is undisputed that the Second Amendment applies equally to the federal government and to the states. State DVRO laws that either do not automatically disarm persons subject to restraining orders, or that ensure meaningful due process (unlike the federal law) before doing so, may be valid.  And the Justice Department is wrong to say that the Due Process and Second Amendment topics are separate, because infringing on the Second Amendment without due process violates both provisions.

"Rahimi seeks … to minimize Section 922(g)(8)'s importance by citing statistics about the number of criminal prosecutions that are brought under the statute. Rahimi, however, ignores the background check system that Congress has created to prevent the sale of firearms to prohibited persons."

According to data submitted by the Amici Brief of Law Enforcement Groups, over a period of 25 years there were 77,283 denials of purchases by NICS, the background check system, to individuals subject to DVROs. That is about 3,000 per year. But many DVROs are issued without a finding of dangerousness; for example, in divorce and custody proceedings.  And many are mutual and thus apply to both husbands and wives alike.  There is no indication as to how many of the 3,000 annual denials were issued to women seeking to arm themselves for self-defense.

Also, NICS is notorious for its high number of false positives. According to the same amici brief citing FBI data, the rate of false positives may be as high as 27.7%, which would mean that 21,407 of those 77,283 denials were erroneous. NICS also should and does contain disqualifiers based on state law, including those states that disarm people subject to a restraining order.  So the effect of § 922(g)(8) is to disarm large numbers of people who are not violent and present no credible threat of violence, and to impose a disarmament requirement in those states where they themselves have chosen not to do so.

Finally, for further information on the surety system, the attitudes at the Founding toward domestic abuse, and related topics, I commend to your attention the recent draft article posted on SSRN by Angus McClellan, Ph.D., entitled Sureties, Domestic Violence, Lunatics, and the Right to Keep and Bear Arms.

Dr. McClellan filed an amicus brief in Rahimi, and his article expands on that brief. It contains a prodigious amount of information on surety systems, and other ways in which the Founding generation addressed many of the major societal problems that existed then and that persist today.  Particularly, his research shows that the Founding era addressed the specific problem that § 922(g)(8) seeks to address and it did so in a materially different way: namely, the surety system. This system was the Founding era's way of dealing with threats that one individual would harm another individual, including intimate partners. But it did not involve disarmament. Rather, it involved a conditional debt by the target (and sometimes by third parties) that would be triggered by misbehavior.

He also shows that domestic violence was not accepted at the Founding. It was preached and inveighed against, and there were legal mechanisms (such as the surety system) for addressing it. Despite the fact that domestic violence was not accepted, rates of domestic violence were comparable if not higher than they are today. And domestic violence with firearms specifically was a problem. There is no factual foundation for the claim that changes in firearm technology in the 19th century caused higher rates of domestic violence.

On a related topic, Dr. McClellan demonstrates that the treatment of the mentally infirm at the Founding provided the types of procedural protections that were viewed as necessary to restrict a person's rights. Those included the right to counsel and to a jury.

Highly recommended.