The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit
Courts are "not insensitive to domestic violence" but are "sensitive to the constitutional rights of the accused."
The conventional wisdom is that the Supreme Court will certainly reverse the Fifth Circuit in Rahimi. Indeed I've voiced that position myself several times, especially in light of a potential grant in Range. (The New York Times picked up Justice Barrett's question). But let me challenge that conventional wisdom: an opinion reversing Rahimi will be tougher to write than most critics will admit.
Let's start with a premise: Rahimi was a faithful application of Bruen. Efforts to "clarify" Bruen are really an attempt to rewrite the precedent. I don't think anyone seriously doubts this premise. Now the reason why the Court may "clarify" Bruen is because certain members of the Court don't like the results that it yields: namely, that a dangerous person like Rahimi can possess a firearm. Again, the correctness of the Bruen precedent should be able to stand without regard to how it may be applied in future cases. But that's where we are. Some members of the Court who profess to be originalists are still motivated by consequentialism. And these concerns came out loud and clear during oral argument.
Still, there is a long time between November and June. A majority opinion has to be written. And that opinion will have to navigate an issue that didn't get much attention during oral argument: what other constitutional rights should dangerous people lose? Certainly this case can't just be about guns.
One of my first published articles, The Constitutionality of Social Cost, was published in the Harvard Journal of Law & Public Policy in 2011. I had started thinking about the topic in 2009, before McDonald v. Chicago was decided. The basic premise of my article was that there are many dangerous rights, and the Second Amendment was not an outlier. Here is a snippet from the introduction:
Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities. The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished. Likewise, a violation of a person's Miranda rights renders certain confessions—even an uncoerced inculpatory confession—inadmissible. Procedural rights during the criminal trial—including the right to grand jury indictment, the right against self‐incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury—all make the prosecution of culpable defendants significantly harder. The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non‐excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial. The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be detained indefinitely without proper procedures. Liberty's harm to society takes many forms—not just from the exercise of the right to keep and bear arms. These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a "primary concern of every government [is] a concern for the safety and indeed the lives of its citizens," this concern is not constitutionally sacrosanct.
Not much has changed since I wrote these words more than a decade ago. The Supreme Court, often with lopsided majorities, protects the constitutional rights of very dangerous people. Yet when it comes to the Second Amendment, it's as if all of these precedents vanish.
This point was recently made in United States v. Kersee, a case from the Fifth Circuit. Here, the defendant pleaded guilty to transporting a minor across state lines with intent to engage in sexual activity. He was sentenced to ten years in prison and five years of supervised release. After he was released from prison, the probation officer submitted a petition to revoke Kersee's supervised release for several charges, including felony aggravated robbery, and misdemeanor family assault. Kersee's girlfriend was the complaining witness for these charges. The charges were later dismissed. Kersee's girlfriend did not testify at the revocation hearing. Thus, Kersee could not challenge out-of-court statements made by Kersee. The district judge revoked Kersee's supervised release, and sentenced him to six months in custody.
Kersee appealed the revocation to the Fifth Circuit. The panel (Graves, Higginson, and Ho) vacated the revocation of supervised released, and remanded for a new hearing. Why would the panel allow this dangerous person back on the street? Under circuit precedent, due process "entitles the defendant to a 'qualified right to confront and cross-examine adverse witnesses.'" This is not exactly the Confrontation Clause, as construed in Crawford v. Washington, but some more nebulous facet of the Due Process Clause. The panel explained:
On balance, the district court failed to make a showing of good cause. Kersee's interest in confronting the adverse witnesses outweighs the government's interest in denying that opportunity. Thus, the district court erred in denying Kersee his due process right to confront and cross-examine adverse witnesses.
To be very clear, the Fifth Circuit ordered that a dangerous criminal, who was alleged to have engaged in domestic violence, was entitled to a new hearing because of a purported constitutional right. If allowed back on the street, Kersee has shown a propensity to harm those around him. Yet, the Constitution prevails.
Judge Ho wrote a four-page concurrence. The introduction speaks to the dangerousness of constitutional rights more broadly, and Rahimi more precisely.
Violent criminals should be prosecuted, convicted, disarmed, and incarcerated. United States v. Rahimi, 61 F.4th 443, 463 (5th Cir. 2023) (Ho, J., concurring), cert. granted, 143 S. Ct. 2688 (2023). But we don't presume that citizens are dangerous criminals. We presume they're innocent. And to overcome that presumption, we require more than just notice and a hearing. We afford the accused with the assistance of counsel and a meaningful opportunity to present evidence and confront adverse witnesses. We impose a robust burden of proof on the government. And when in doubt, we err on the side of liberty. . . . I write separately to observe that the court grants relief, not because it is insensitive to domestic violence or the safety of Kersee's girlfriend, but because it is sensitive to the constitutional rights of the accused.
The emphasized sentence is important. In other contexts, the constitutional rights of the accused are not diminished because of what the accused may do with those rights. Those rights are protected in spite of what the accused may do with those rights. Judge Ho includes a string-cite that explains all of the ways that the Supreme Court has afforded broad constitutional protections to dangerous people:
The Supreme Court has repeatedly granted relief to dangerous criminals out of concern about the procedures used to determine their dangerousness. See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (murder); United States v. Davis, 139 S. Ct. 2319 (2019) (violent felonies); Johnson v. United States, 576 U.S. 591 (2015) (armed career criminals); Crawford v. Washington, 541 U.S. 36 (2004) (assault and attempted murder); Maryland v. Craig, 497 U.S. 836 (1990) (sexual abuse of a child); Miranda v. Arizona, 384 U.S. 436 (1966) (kidnapping and rape); Gideon v. Wainwright, 372 U.S. 335 (1963) (burglary).
In these cases, the Supreme Court did not shy away from the constitutional right because the defendant was presumptively dangerous:
In none of these cases did the Supreme Court decline to uphold constitutional safeguards just because the defendant was credibly accused of a dangerous crime. If government must turn "square corners" when it comes to the removal of illegal aliens, Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021), surely it must do the same when it comes to the basic rights of our own citizens.
In Rahimi, presumably, a majority of Justices will want to write that the Second Amendment rights must be taken away from people merely accused of being dangerous, even if they are not convicted, let alone indicted. I think that opinion will be harder to write than one may think. The Court will have to reconcile that holding with the cases in Judge Ho's string cite, and the cases I identified in my article. How will the Court explain why people convicted of violent crimes should be released onto the street due to the government's failure to comply with constitutional procedures, but a person who has not been convicted of anything will lose a constitutional right?
Of course, the Court can simply ignore the rest of the law and treat Rahimi as a one-off. This would be a salient point for any concurrence or dissent to point out. If members of the Court insist on treating the Second Amendment differently from all other rights, then they should address the inconsistencies with other areas of the law. And if the Court fails to address these other rights, then I think lower courts may rightly assume in future cases that other rights of dangerous people may likewise be curtailed, if "history and tradition" so provides. Rahimi will not be decided in a vaccum.
One last point. I could imagine that a ruling in favor of Rahimi would result in a salutary change to process. If people accused of domestic violence are so dangerous, then they should be indicted and prosecuted for domestic violence. Perhaps a ruling for Rahimi will increase the number of domestic abusers who are put behind bars, rather than being allowed on the street where they can cause mayhem. Like Judge Ho said, "Violent criminals should be prosecuted, convicted, disarmed, and incarcerated."
