Rahimi, Meenie, Miney, Mo

Will Garland v. Range be the way to go?

On Tuesday, the Supreme Court heard oral argument in United States v. Rahimi. Things did not go well for Mr. Rahimi. I can see him losing 7-2, 8-1, or maybe even 9-0, over some very stern concurrences. That the Supreme Court will (almost certainly) reverse the Fifth Circuit does not mean that the Fifth Circuit failed to faithfully apply Bruen. To the contrary, the Supreme Court seems to already have doubts about a precedent that, like Dobbs, is in its fifth trimester. Don't blame the inferior courts for taking the Supreme Court at its word.

The most likely path forward is for the Court to give (in Justice Kagan's words) "useful guidance" for the lower courts on how to apply Bruen. And by "useful guidance," Justice Kagan means watering down the Bruen test so lower court judges can pretend Justice Breyer's Heller dissent is controlling. What is that guidance? Solicitor General Prelogar explains "The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right." Here, the Solicitor General purports to lecture the--what we are told is--the most originalist Supreme Court ever on originalism. Yes, after decades of discussion about original meaning, and we're stuck with "identifying principles" from history.

Still, we should not abandon all hope. On two occasions, Justice Barrett shined a light on another case looming on the docket.

Early in the argument, Justice Barrett acknowledged that domestic violence is a fairly easy case with regard to a "tradition of dangerousness." Rahimi's conduct "might be in a heartland," Barrett asked, "but then you can imagine more marginal cases." That is, a case where it is no so clear that the defendant is dangerous.

Later, Justice Barrett pressed the SG about what would happen in a case where the defendant is not dangerous. Prelogar responded, "You don't need to resolve that issue here. This is a is a case just about someone who is not responsible in the form of being dangerous." Barrett asked, "But you're trying to save, like, the range issue. So you're not applying dangerousness to the crimes?"

If you skimmed the transcript, you might have missed the reference. Indeed, "range" was lowercase and not italicized. Here, Barrett was referring to Garland v. Range. Range presents the question of whether a person convicted of making false statements to obtain food stamps is subject to the disqualification under Section 922(g)(1). On June 6, 2023, the en banc Third Circuit held that under Bruen, Range could not be disarmed.

Four months later, the Solicitor General filed a cert petition in Range. (By contrast, the Solicitor General filed a cert petition fifteen days after the panel decided Rahimi--Prelogar has made it a habit to skip en banc review in the Fifth Circuit.) But the SG did not ask the Court to grant certiorari in Range right away. Rather, the SG urged the Court to hold Range pending Rahimi. You can imagine why. Rahimi presents the worst facts possible for a Second Amendment case. Meanwhile, a person who engaged in welfare fraud is a far more sympathetic defendant. In Range, the respondents (represented by Cooper & Kirk) told the Court to grant the government's petition, even though they won in the lower court! (You don't see that happening often.) The government's reply brief, filed six days before Rahimi was argued, once again urged the Court to hold Range pending Rahimi.

Back to Justice Barrett. She asked the SG "But you're trying to save, like, the [Garland v. Range] issue. So you're not applying dangerousness to the crimes?" Prelogar responded, "That's correct." Prelogar added, "We think that there are additional arguments that can be made to defend felon disarmament and that those depend on the unique history and tradition with respect to criminal conduct." And looking ahead, the SG said, "we would hope to have the opportunity to present those arguments and perhaps persuade you in a future." Barrett interrupted Prelogar. "In that case perhaps." That is, Range. After some cross-talk, Prelogar said, "yes."

Range will be distributed at the November 17 conference. If the Court grants certiorari, the case can be argued in the March/April window. Range and Rahimi would become companion cases. Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from Bruen. Indeed, the Court may be able to split those cases in a way so as not to water-down Bruen. The Court could even vacate-and-remand Rahimi in light of Range. If the Fifth Circuit is given clear guidance on what the state of the law is, it can follow that guidance.

Comments

[Dan Schiavetta]

I'd like to see the "tradition" that existed in 1791 as to protecting wives from violent husbands.

[Roger S]

Rahimi was not married.

[Brett Bellmore]

Doesn't really matter. You're approaching this from the wrong direction.

The legislature was perfectly entitled to treat domestic violence as seriously as non-domestic violence, and if Rahimi were charged with it as a felony, and were convicted of it after a felony trial, nobody doubts that he could be constitutionally deprived of his right to keep and bear arms.

The relevant tradition here isn't how domestic violence was treated in 1791. That's a distraction. Hell, it's intended to be a distraction!

It's what restraining orders could do in 1791. That's what is relevant!

If restraining orders couldn't deprive you of a civil liberty in 1791, if it took an actual criminal conviction, then never mind what prompted the restraining order, they can't today, either. THAT is the relevant reasoning.

This isn't about domestic violence, it's not in any way about what Rahimi might or might not have done. It's about the level of due process required to extinguish civil liberties.

[Brett Bellmore]

To quote,

“MR. WRIGHT: The — the possession of firearms. It’s the bootstrapping of what is a proceeding that is one-sided and does not have any kind of historical connection to the loss of citizenship rights, bootstrapping that as like a conclusive presumption to a right that the federal Constitution guarantees against Congress.”

We’re not talking about domestic violence here. We’re talking about what sort of due process is required to take away a civil right.

[Stephen Lathrop]

Bellmore, too bad for the absolutist interpretation of the 2A then. Even the notion of laws applied uniformly to everyone was honored mostly in the breach during the founding era. And, by the way, it was utterly inconceivable in the British system, based as it was then (and long afterwards) on the notion of civil rights only for a small privileged minority of everyone.

[Joe_dallas]

Lathrop - very few people are being absolutist in their interpretation of 2A. Consistent with Brett, I think Rahimi should be stripped of his guns (consistent with the law of hampton ? where the individual was banishing his guns in a threating manner - my apologies for incorrect name on the cite of hampton ? ). Rahimi definitely demonstrated he was a threat. Brett's position (if I am interpreting his analysis correctly) is that the statute lacks proper due process procedure.

A second point not addressed is that the individual can still obtain guns in the same manner than any other criminal can obtain a guns. There is a very active black market for firearms. Thus the valid restriction may be meaningless.

[Brett Bellmore]

Yes, my position is that the federal statute lacks due process, because it imposes the rights deprivation on the basis of a judicial proceeding which itself lacks much in the way of due process. Here in SC you can even get such a restraining order in an ex parte hearing!

A secondary point is that they let Rahimi walk free, which rather conflicts with the claim they really think he's dangerous.

[Randal]

The stupid part of this analysis is that restraining orders themselves strip civil rights sans conviction. So your whole premise that stripping a civil rights requires a conviction is clearly eviscerated by the very existence of restraining orders in the first place.

[Joe_dallas]

lathrop - Stephen Lathrop 4 hours ago
Flag Comment Mute User
"And, by the way, it was utterly inconceivable in the British system, based as it was then (and long afterwards) on the notion of civil rights only for a small privileged minority of everyone."

Lathrop - you should be careful when you interpret "history" so that you dont reach erroneous conclusion.
Considerable history writing discussed the individual right, especially after the british attempts to confiscate guns circa 1770's

[Stephen Lathrop]

Once again, please cite specific historical evidence, and explain your standards for the historical relevance of any citation you mention. That someone, somewhere, at some time, wrote something with subject matter adjacent to a present concern, is not by itself even slightly useful to show historical relevance. While almost everything written about guns during the colonial era, and the founding era, is relevant in some way to American history and tradition about firearms, considered in the broadest context, only a tiny fraction of it is relevant to the meaning of the 2A.

[David Nieporent]

We’re not talking about domestic violence here. We’re talking about what sort of due process is required to take away a civil right.

We are not. As the court noted, and as Rahimi's lawyer admitted, he did not bring a due process claim.

[Brett Bellmore]

Then we are simply losing this case, because that is the only basis on which it can be won.

[David Nieporent]

Yes. Oral argument made clear that Rahimi is in fact losing this case.

[Brett Bellmore]

Not just Rahimi, though. I don't care about Rahimi losing, he should have been in jail, not walking around free under orders not to have guns.

I do care about the principle, though. His losing this case is bad for a lot of people who aren't remotely Rahimi bad.

[phoqueue]

he did not bring a due process claim.

I haven't been following this one closely. Is the predicted outcome a decision that says, "a finding of dangerousness is sufficient, assuming it's made with adequate due process, but we aren't addressing due process today"?

[not guilty]

"We’re not talking about domestic violence here. We’re talking about what sort of due process is required to take away a civil right."

Regardless of what the commenters here are talking about, Mr. Rahimi's SCOTUS case is a facial challenge, not an as applied challenge. He agreed to entry of the order of protection, which he could have contested. https://affordablecareactlitigation.files.wordpress.com/2023/08/20230814194956129_u.s.-v.-rahimi-j.a.pdf (The order included a specific warning about the prohibitions on 18 U.S.C. §§ 922(g) and 924(a)(2).) He pleaded guilty to violating the federal statute, reserving only the facial challenge to the statute under the Second Amendment.

Mr. Rahimi at each juncture has gotten all the process he is due.

[David Nieporent]

If restraining orders couldn’t deprive you of a civil liberty in 1791, if it took an actual criminal conviction, then never mind what prompted the restraining order, they can’t today, either. THAT is the relevant reasoning.

You're mistaken. He is not challenging whether a restraining order can deprive one of the RKBA. He is challenging whether a federal law can. They're two separate things analytically, and you're confusing them.

[Brett Bellmore]

They aren't two separate things analytically, because the damned federal law deprives you of it on the basis of the restraining order. So if the process involved in issuing the restraining order isn't due process for rights deprivations, the law is unconstitutional.

I agree that, in principle, there's a federalism/enumerated powers question about whether this federal law would be legitimate even if a state restraining order COULD deprive one of a civil liberty. But it is, like most federalism/enumerated powers arguments, a losing argument, because the federal courts are insanely deferential to the federal government on such issues.

The one issue where I think we could win on this is the due process issue. And if that's not being considered?

Then we lose.

[ReaderY]

That’s not the question the Supreme Court will decide in Rahimi. At oral argument, several justices, including Barrett and Gorsuch, stated that because Rahimi had only made a facial Second Amendment challenge, not an applied or a Due Process challenge, the question of whether he had received adequate Due Process was not before them. And they got the SG to concede that finding the law facially constitutional would not preclude a future claim that the process received before a restraining order was issued was inadequate.

From the oral argument, it appeared the court was inclined to defer the question of what level of process is needed to a future case that directly presents that question.

[Kazinski]

Best thing to do is remand with a decision that an individual determination of facts than show dangerousness is required to lose ones second amendment rights.

Rahimi definitely meets that standard and shouldn’t have access to guns

[Randal]

Why isn't it sufficient to say that generally, subjects of domestic violence restraining orders are dangerous, and individuals are free to make as-applied challenges to handle any edge cases?

[Michael P]

Domestic violence restraining orders are issued for a wide variety of alleged harms, including purely emotional abuse. That is not a good basis for removing a core constitutional right; there should be a judicial finding that is more specific about the risks associated with that right.

Felony convictions are for serious crimes. Should felons have to make as-applied challenges before they can vote again?

[Brett Bellmore]

Felony convictions are actual felony convictions, though. They're hardly in any way analogous to a simple restraining order.

[Stephen Lathrop]

MichaelP, your argument remains a demand to take the protective power out of all domestic restraining orders. If you think those are abused, or handed out frivolously, then that is the place to seek reform.

[Brett Bellmore]

No, we're talking about taking out the civil rights depriving power of restraining orders. If you want to deprive somebody of a civil liberty, convict them of a felony.

[David Nieporent]

If you want to deprive somebody of a civil liberty, convict them of a felony.

So you think that mentally ill people cannot be disarmed? Being mentally ill isn't a felony.

[Brett Bellmore]

I am very, very uncomfortable with the notion that you can achieve the effects of a felony conviction by simply declaring that somebody is crazy. And all those procedural rights go "poof"! Can't jail somebody for a year without the right to a jury trial, but if you say you're jailing them because they're nuts? Forget the trial, it just takes a guy in a white jacket giving his opinion.

I'll sadly admit there's precedent to back that up, but it's ugly precedent.

[Sarcastr0]

"the effects of a felony conviction"

Apparently this is not an effect that is specifically tied to a felony conviction.

You just feel that it is.

It's not been like that maybe ever, but at least for a couple of decades.

[Brett Bellmore]

Oh, right. For most of this nation's history, that was the dividing line between a felony and a misdemeanor: You had to be convicted of a felony to lose your civil rights.

"But where does it say that?", you say. And that's true: The Constitution nowhere says that you can't take people's civil liberties away for minor infractions or on a judge's whim. You know, just like it sets out criteria for issuing a warrant, but doesn't actually say you need to get one; Gotcha!

Seriously, are you for real?

[Sarcastr0]

That was never the dividing line between felony and misdemeanor. Civil rights was not even a thing for most of this nation's history!

You are very sure all these things you have pulled from your ass are very true. That does not make them actually true.

And, civil commitment is not criminal because it is not a punishment. That means the finding is a pretty high one, even if the quantum of evidence is not reasonable doubt.

You are yet again very angry about a subject you have done little research on, and don't know what you're talking about.

[Reallynotbob]

You're aware misdemeanors carry jail sentences, right? You can't seriously mean "felony" in that sentence.

[Michael P]

No. Your imaginary alternative argument contains such a demand. My actual argument demands at least "a judicial finding that is more specific about the risks associated with that right" before that right can be taken away. As Brett mentions, there are also due process concerns about the burden of proof regarding those risks or harms.

[David Nieporent]

922(g)(8) requires that the court have made a finding of physical threat, or ordered the subject of the order not to use physical force against the person seeking the order.

[Brett Bellmore]

Because the loss of a civil liberty is a felony penalty, and domestic violence restraining orders have very little due process indeed compared to felony trials. You want to impose a felony penalty, charge somebody with a felony and convict them.

Why isn't it enough to say that, if they'd really thought Rahimi was that dangerous, then lock him up so he can't hurt anybody, instead of playing pretend by ordering him to not have guns? It's not like the restraining order actually stops him from hurting anybody, if he's intend on doing it.

[David Nieporent]

Because the loss of a civil liberty is a felony penalty, and domestic violence restraining orders have very little due process indeed compared to felony trials. You want to impose a felony penalty, charge somebody with a felony and convict them.

Again: so you think mentally ill people cannot be disarmed? Because that directly contradicts Heller.

[Brett Bellmore]

I think it should not be possible to disarm people on the basis of their being mentally ill, without a process roughly comparable to a jury trial. As things stand, the mental illness exception to due process is a huge gaping hole in the protection of our rights; We've locked the front door, and left the back door open and swinging in the wind.

[David Nieporent]

It's not an "exception to due process." Due process is still required, as for any other government action affecting an individual's liberty or property.

[Brett Bellmore]

It's not an exception to process. Because there's a "process".

But it's not the process that's actually due.

I'm saying that using a much lesser and different process for depriving people of rights on the basis of "mental health" instead of "crime" is a exploit waiting to be used to render the due process for criminal law meaningless.

It's the house with the front door locked tight, and the back door hanging open.

[Sarcastr0]

You’re creating an artificial standard of criminal process as what’s due with zero support for that other than your feelings.

You do the same thing with the 14A disqualification as well.

You don't get to declare what process is due based on vibes.

[Defenderz]

So what's your standard? That people get to be locked up or disarmed based on some judge's hunch?

[Sarcastr0]

The standard runs with the legislature's choice of disqualifying factor generally, no?

[Defenderz]

The Constitution constrains the legislatures' choices.

[Sarcastr0]

That's right.

But that constraint is not 'must be a felony.'

[Brett Bellmore]

I see. You're comfortable with mental health professionals being able to lock people up without jury trials or presumption of innocence, because you figure they'll always be doing it on the up and up. Despite the fact that loony bins are favorite places for despots to imprison political enemies.

I don't like to rely on "it can't happen here". I'd prefer a bit more in the way of safeguards than "but, they're professionals!"

[David Nieporent]

Presumption of innocence? Mental illness isn't a crime, so "innocence" isn't at issue. The burden of proof is still on the state to prove that commitment is appropriate.

[Sarcastr0]

Yes, I think civil commitment is appropriate at times, is not a punishment, and the current process that is due is sufficient.

Speculative government evil is not a great legal argument.

[Brett Bellmore]

"Speculative government evil is not a great legal argument."

There it is, folks: "It can't happen here." right out in the open.

The whole damned Bill of Rights was grounded in speculative government evil!

[Sarcastr0]

There is is folks, Brett mistaking drama for a legal argument.

You're not even making a good *policy* argument. All power can be abused; that alone doesn't get you anywhere.

If our government decides to go authoritarian, these legal niceties won't stop them.

[Brett Bellmore]

The point of drawing a line in the sand isn't because the person you draw it in front of will bounce off of the magical force field it generates. It's to make it crystal clear where the line is, and that they crossed it, so that you can proceed with responding without a bunch of time wasting waffling over whether the line was here, or there.

So, yes, legal niceties like the Bill of Rights would not actually stop an authoritarian government from banning books, or setting up a state religion. Police breaking down your door won't bounce off the 4th amendment if they're not carrying a search warrant.

But having one lets you say with confidence, "Yeah, you finally crossed that line. Sic semper tryannis, you MF!" And it lets us AGREE where that line in the sand is, so that enough people come to that conclusion at the same time, to matter.

So, go ahead, dismiss having a bill of rights as "legal niceties", I'm really enjoying watching you put your actual view of rights on record here, terrifying as it is.

[Sarcastr0]

Drama is still not a policy argument. And a policy argument is still not a Constitutional argument.

The point of drawing a line in the sand *in Constitutional law* is you need to tie it to actual Constitutional law.

Your originalism has fallen away and revealed what we all knew - it's all about policy preferences for you.

As to your policy argument, civil commitment has been around for quite some time, it has a good necessity to be around, and you being angry about it (while it looks like not understanding it) doesn't make it suddenly the back door to tyranny.

[David Nieporent]

But it’s not the process that’s actually due.

You're doing that Area Man Passionate Defender Of What He Imagines Constitution To Be thing again.

[Defenderz]

You've never practiced family law, have you? Often what'll happen is a divorcing husband and wife will start making outlandish claims against each other, and the judge will just get fed up and issue orders of protection against both of them, without any real factual analysis.

[David Nieporent]

1) If the order simply says, "I order each party to stay away from the other," then it would not satisfy the requirements of 922(g)(8).

2) Alternatively, one can challenge the order directly, rather than trying to collaterally attack it in a prosecution under 922(g)(8).

[Rossami]

If the order merely says "stay away from each other", you are correct.
But if the order says "don't hurt each other", that satisfies the requirements of the second clause of 922(g)(8).

[David Nieporent]

Then someone should make that argument. Argue that 922(g)(8)(C)(ii) is insufficient. But Rahimi couldn't make that argument, because there was a finding of dangerousness in his case, and therefore (C)(i) applied.

[Defenderz]

But the orders do not merely say that, and they never do. The problem is, challenging the order costs time and money, and in the meantime, the police have seized and confiscated your guns. Good luck getting them back undamaged and unmolested.

[David Nieporent]

Newsflash: if you're arrested for a crime, it also costs time and money to fight it.

[Defenderz]

No shit sherlock. What's your point?

[Tom for equal rights]

Defenderz 6 hours ago
Flag Comment Mute User
"You’ve never practiced family law, have you? Often what’ll happen is a divorcing husband and wife will start making outlandish claims against each other,"

Concur - fwiw judges hear allegations of spousal abuse, child abuse, etc so frequently that real allegations get dismissed

[Rossami]

Because we have substantial evidence that generally, subjects of domestic violence restraining orders are not dangerous.

A subset of them are dangerous but a sweeping statement that all of them can simply be presumed dangerous is as evil and discriminatory as saying that because a few blacks are dangerous that all of them can be denied civil rights. Your approach inverts the requirements of the law. We are supposed to be innocent until proven guilty and the burden on the government to prove that guilt, not the reverse.

[Defenderz]

Yes that's the problem. Judges have no real incentive not to issue sweeping restraining orders.

[ReaderY]

But this is a facial challenge, not an as-applied, individual challenge. If showing dangerous by some set of facts supports taking away 2nd Amendment rights, then the statute is facially constitutional.

One can wonder why Rahimi didn’t do an applied challenge. One possible reason is he doesn’t appear to be a very sympathetic plaintiff. He had other altercations with the law. At one point in the argument, Justice Roberts basically got Rahimi’s counsel to concede that Rahimi himself was dangerous.

[Brett Bellmore]

He didn't do as applied because, yeah, Rahimi is just the sort of guy who'd lose an as applied challenge.

I'm more concerned about why he didn't raise due process. And why the defendant in such an important case is having to depend on a public defender. Did no 2nd amendment group want to help him out?

[David Nieporent]

1) "Forced to rely"? This is the Federal Public Defender's office, not some guy handling 50 buy-and-busts a day in Cleveland. They provide top notch representation.

2) Probably because the Fifth Circuit's decision was so sweeping and out there that they didn't want to be forced to try to defend it. They were willing to submit amicus briefs, where they could say what they want and limit their arguments. But defending the entirety of that decision was more likely to create bad law for them than good.

[Bubba Jones]

No 2nd amendment group wants this asshole to be the test case.

[not guilty]

"Best thing to do is remand with a decision that an individual determination of facts than show dangerousness is required to lose ones second amendment rights."

How is remand for further factual development available on a facial challenge to a statute pursuant to which the appellant has pleaded guilty? If the government wins a reversal, the sentence imposed by the district judge remains in effect. If the Fifth Circuit judgment is affirmed, Rahimi will be released from federal custody and the statute becomes enforceable in toto. This is an all or nothing proposition.

[Randal]

Heller, and by extension Bruen, are hardly originalist. Heller explicitly departs from the text of the Second Amendment on policy grounds, finding that the sorts of modern weapons that would be appropriate for a "well-regulated militia" would be too dangerous.

There goes the security of a free State, I guess.

[Michael P]

You might need to expand on that a bit. From Heller: "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding", and what courts may do is consider the "historical tradition of prohibiting the carrying of dangerous and unusual weapons." Note that the latter is limited to public carrying, and that the decision as a whole rebuked the DC courts for accepting an argument that handguns as a class were particularly dangerous and could therefore be banned.

[Brett Bellmore]

It's also notable that the closest they could find to an actual precedent were surety orders, which didn't lose you the right to own guns, they just required you to put up a bond if you were going to carry them around.

[Tom for equal rights]

Randal 7 hours ago
Flag Comment Mute User
Heller, and by extension Bruen, are hardly originalist. Heller explicitly departs from the text of the Second Amendment on policy grounds, finding that the sorts of modern weapons that would be appropriate for a “well-regulated militia” would be too dangerous.

There goes the security of a free State, I guess.

Randal - Its Stevens dissent and the first few paragraphs of Breyers dissent that depart from originalism. The originalist position advocated by Stevens is inane. He is basically making the claim the the right to keep and bear arms is only protected when serving in a militia and the right to keep and bear arms outside the militia is a priviledge granted by the government.

[Randal]

You've never been able to find me that quote from Stevens. I don't think it exists, having read it myself.

[Tom for equal rights]

Read his dissent – Stevens first sentence – “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. ”

Stevens 3rd sentence – “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”

Stevens 8th paragraph – “I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.”

Stevens 10th paragraph – ” Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects.”

Stevens – ” Although the Court’s discussion of these words treats them as two “phrases”—as if they read “to keep” and “to bear”—they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities.”

Read Breyers dissent – his first sentence ” The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests.”

[Randal]

100%. It's all about purpose, not time. The word "when" isn't in there at all.

[Tom for equal rights]

Stevens argument is that the right is only exists in a militia context. The only time that militia context exists for the individual is when he is serving in the militia.

[Randal]

That’s where you’re wrong. The “militia” at the time meant every able-bodied male, and we now know even that was unconstitutionally restrictive and it really meant every able-bodied person.

So everybody has the right to keep and bear arms as long as they’re able-bodied i.e. militia-capable, not only “when serving in the militia.” I don’t totally agree with Stevens, but he didn’t say what you think he said.

The Heller rule is essentially this: The RKBA is the unfettered right to a BB gun. Anyone can own as many BB guns as they want, take them everywhere they go, store them loaded in their baby’s crib, whatever, with essentially zero training, safety, or oversight.

The original RKBA was more like: Everyone, being a responsible member of the militia, has the right to effective military arms, suitable for use by an individual soldier, appropriate to the individual’s degree of proficiency and training, and subject to safety and use restrictions as necessary to the efficient operation of a militia.

(That’s also not exactly what Stevens was saying, although Stevens was closer to that than Scalia was.)

[Tom for equal rights]

Randal 26 mins ago (edited) Flag Comment Mute User “So everybody has the right to keep and bear arms as long as they’re able-bodied i.e. militia-capable,

Randal – that is exactly the opposite of what Stevens and Breyer wrote Read Breyers dissent – his first sentence ” The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests.”

Stevens 8th paragraph – “I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.”

As Stevens writes "its clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes." which means that the individual right is not protected.

If congress can regulate with no limitations, then it means that it is not a protected right.

[Randal]

Again, that's all about "why," not "who" or "when." Even Stevens says: Who? Everybody. When? All the time. It's the Why he disagreed on. Scalia found "self-defense" emanating from a penumbra, and Stevens said, "no, it says right there it's for militias."

[Tom for equal rights]

Stevens 8th paragraph – “I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.

randal - you persist in ignoring Stevens clear statement in Stevens 8th paragraph.

That statement is where Stevens is elaborating on a limitation that does not exist in 2A. There is absolutely nothing in 2A that supports a limitation.

[Randal]

It says "purposes." It's about purpose. The Why. That's what I've been saying all along.

Nobody thinks the 2A is absolute, except total retards. Congress's authority to regulate the use or possession of firearms for purely criminal purposes isn't limited by the Second Amendment, as I assume you'd agree, even though that limitation also doesn't exist in the amendment itself. You're just basically not making sense at this point.

[Bubba Jones]

Where is my cannon?

[Aubrey LaVentana]

It's aboard my privateer.

[Absaroka]

Speaking of cannon, here's a vid from a great youtube channel, 'The History Guy'. It's about 'The Great Cheese Riots of 1766'. There was famine in England, and the hungry populace was angry about food being exported because the prices were higher on the continent. Cheese warehouses were being ransacked.

He mentions one cheese warehouse owner drove off the crowd with ... grapeshot.

(I kinda sympathize with the hungry crowd here ... )

[Brett Bellmore]

Sadly, I kind of expected this. If the Court had actually meant Bruen, they'd have been taking a bunch of cases from the circuits that weren't faithfully applying it, and been handing out summary reversals like candy on Halloween. The 5th circuit took the Bruen decision's reasoning more seriously than the Court that issued it did.

I don't think ALL is lost, but the Court seems likely to back down a bit from actual originalism in the case of the 2nd amendment.

[Defenderz]

I'd be thrilled if they reversed this particular case, but added dicta that nearly everything else the lower courts that were resisting Bruen was improper. But then I woke up from dreaming.

[apedad]

Actual originalism!

Hadn't heard that one before so I'll add it to the list.

Actual Originalism
Framework Originalism
Intrinsicist Originalism
Instrumental Originalism
Liquidated Originalism
Original Intent
Original Meaning
Original Methods Originalism
Original Public Meaning
Semantic Originalism
Structuralism
Textualism
"Halfway Originalism"

And what is Actual Originalism?

[SRG2]

And "Ouija board originalism", where judges connect with the spirits of the FFs to ask them how to interpret the constitution in a specific case. Much favoured by Scalia, who IIRC never found an instance where the summoned FFs disagreed with him.

[Reallynotbob]

No, no, no. You're laboring under the impression that the founders ever disagreed. They had a single common understanding of how every phrase would be applied.

[Alpheus W Drinkwater]

Not just the framers, every single ratifier in every single ratifying convention shared the same common understanding.

[Stephen Lathrop]

What is that guidance? Solicitor General Prelogar explains "The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right." Here, the Solicitor General purports to lecture the–what we are told is–the most originalist Supreme Court ever on originalism. Yes, after decades of discussion about original meaning, and we're stuck with "identifying principles" from history.

Wait a minute. Wasn't the notion of being stuck with history the much-touted principle of constraint purported as justification for originalism?

[MaverickNH]

Given everything is a crisis these days, broad, sweeping laws to address them has become the solution. In this case, the domestic violence crisis necessitates ‘better that ten accused persons be disarmed than one guilty person remain armed’?

[Tim]

> Yes, after decades of discussion about original meaning, and we're stuck with "identifying principles" from history.

I'm pretty confused what Josh means here. That is, what inconsistency he's seeing between original meaning and principles from history.

If he was lamenting tiers of scrutiny and interest-balancing, I would understand.

But I thought we were talking about looking at the historical evidence to determine what the meaning of "right to bear arms" was when the amendment was passed.

And if Josh's complaint is that it is insufficiently textualist, it seems to me his problem is with Bruin itself. It was Thomas who also directed people to look at examples of regulations from history in order to determine something about the meaning of the right to bear arms. The disagreement I can see between the 5th circuit and the solicitor general seems to be about the degree of specificity of the analogies.

(Disclaimer: That's setting aside the due process question of whether the determination about Rahimi was sufficient process, and whether the "any restraining order prohibiting violence is enough" is sufficient process.)

[David Nieporent]

I’m pretty confused what Josh means here. That is, what inconsistency he’s seeing between original meaning and principles from history.

That's because Josh is pretty confused what Josh means here.

(Disclaimer: That’s setting aside the due process question of whether the determination about Rahimi was sufficient process, and whether the “any restraining order prohibiting violence is enough” is sufficient process.)

Keep in mind that Rahimi didn’t raise those challenges, though. He could’ve brought an as applied challenge, or a due process claim. He did not.

[Brett Bellmore]

It's somewhat reminiscent of Miller, isn't it? Such an important case, all all he has is a public defender. You'd think SOMEBODY would have had the sense to hire him a good legal team, even if he's unlikable.

[ReaderY]

I think the problem there is more one of dollars than sense.

It’s possible that Rahini tried, but the NRA and other organizations that could provide legal funding found Rahimi too toxic to stand behind. Perhaps someone on this blog might know about it.

Nonetheless, I’m suprised by the lack of an as-applied challenge. This is a direct appeal from a criminal conviction. The job of any criminal defense lawyer, and especially a public defender, is to defend the accused individually, not to make general claims on behalf of ideological causes.

It’s possible that counsel made a strategic decision that because Rahimi was not a very sympathetic character, getting the Court to focus on him individually would not be the best strategy.

[Brett Bellmore]

I could certainly see the NRA making that decision. They've repeatedly tossed segments of the gun owning community under the bus like that. Machine gun owners, bump stock owners.

I was really thinking it would have been one of the principled pro-gun organizations, like the SAF or GOA.

[Longtobefree]

"The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right."

Funny, nothing in there about the crazy concept of actually reading the constitution.

[Brett Bellmore]

It's the levels of abstraction shuffle: You take the specific language, derive from it a general principle at a high level of abstraction, and then apply it in specific circumstances in a way that actually violates the language you derived it from.

[Reallynotbob]

Great point. Now do the First Amendment on religion.

[Brett Bellmore]

Sure. An ‘establishment of religion’ is a state church, like the Anglican Church in England. Several states had them at the time, and the 1st amendment barred Congress from enacting any law having to do with established churches. It could neither establish a national church, nor interfere with states having their own.

[Alpheus W Drinkwater]

Yes yes, we know. Incredibly narrow interpretation of establishment, incredibly broad interpretation of free exercise.

[Brett Bellmore]

Historically accurate interpretation of establishment.

[Sarcastr0]

Only if you ignore all the scholarship going the other way and a bunch of Jefferson quotes.

[ReaderY]

I think Professor Blackman, and some other posters on this blog, have taken stray comments from Heller and Bruen and interpreted with a good measure of their own ideological take on things, plus a big dose of wishful thinking.

Professor Blacan may be a reliable predictor of how the 5th Circuit sees 2nd Amendment issues, but clearly not the Supreme Court.

[loki13]

"Prelogar has made it a habit to skip en banc review in the Fifth Circuit"

Weird, huh? It's almost like there is a certain circuit that practically requires Supreme Court review. Which, given the current makeup of the Supreme Court, is saying something.

[Estragon]

So the sum total of your analysis in this post is to note that Range has more sympathetic facts than Rahimi?

“To the contrary, the Supreme Court seems to already have doubts about a precedent that, like Dobbs, is in its fifth trimester.”

Oh really? What are those doubts in your view? Do you find them to be legitimate?

This whole post strikes me as a substance-free vehicle to snark Prelogar and Kagan. Which is actually pretty on brand.

[Daddyhill]

Why is this a Second Amendment case and not a case of reckless endangerment (how many bystanders has he shot at again?) or breach of the peace? There are very good reasons for keeping loaded firearms out of the hands of children, despite the fact that very few children are violent abusers with restraining orders against them. This jerk would seem to have the impulse control of a 4-year-old, and yet he's allowed to keep his loaded firearms? Apparently, common sense isn't something that gets considered when "originalism" is at the bar.

[Memo to Alito: "he said, she said" used to be the rule of thumb in male-on-female rape cases. It isn't any more. I'm pretty sure I don't want to live in whatever century you think this is.]

[Brett Bellmore]

"This jerk would seem to have the impulse control of a 4-year-old, and yet he’s allowed to keep his loaded firearms?"

This jerk would seem to have committed multiple dangerous crimes, and yet they leave him out on the street while taking their own sweet time about prosecuting him for them?

Do you think telling him he couldn't have guns made him safe? Really? No, it's a form of security theater.

[Brett Bellmore]

I think the Court has already tackled this particular question, haven't they? The "danger" that justifies regulation isn't that a being shot with a gun can harm you, it's the purpose of guns to be dangerous in that way.

It's a different sort of danger.

A hand grenade, that causes area damage, so you can't target just a person who you hypothetically might have a legal basis for shooting.

An anti-material gun, where you might shoot somebody in front of you, and the shot would then go through the wall behind them and take out somebody you didn't even see.

A booby trap, that could end up shooting somebody who was not legally at fault.

A defective gun, that might blow up in your hand, or go off if dropped.

The normal sort of danger a gun poses is a controlled danger, capable of being legally deployed. The sort that can be regulated is the sort of danger that escapes that control.

[Rossami]

re: Those are temporary - No. Or at least, not always. I'd venture to say not most times but that probably varies by jurisdiction.

re: subject to more formal challenge after - Theoretically, yes but if you do so, 1) you do so at your own considerable expense and 2) you piss off the judge who has control over your access to your kids, etc. As a practical matter, the answer is basically also no here.

[Defenderz]

In addition to the points Rossami raised, a temporary injustice is still an injustice

[Aubrey LaVentana]

I think the Kopel brief surveys all States' laws on whether the order is temporary, extendable, or permanent, and how such orders are sought and issued. That brief was reviewed on this blog.

[Defenderz]

I agree that there's no principled way to argue that machine guns are outside the protection of the 2nd Amendment. They are commonly borne infantry weapons.

[Brett Bellmore]

That is the point, and they should be, and this Court is not remotely prepared to go there.

[Randal]

And proof that originalism is a results-oriented sham.

[Defenderz]

And if they held that machine guns were protected, you'd call them extreme and crazy. Some choice you've given them!

[Randal]

You don't get handed a machine gun on your first day of boot. Training, certification, and safety procedures are part of what makes a militia well-regulated.

[Defenderz]

I have no issue with mandatory military service.