The Volokh Conspiracy
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Second Amendment Roundup: Concessions by the Government in the Rahimi Oral Argument
Misdemeanants don’t fall within the “not law-abiding” category.
In the November 7 oral argument in U.S. v. Rahimi, the government conceded the fundamental difference between felonies and misdemeanors, which criminal defense and pro-gun attorneys will find useful. Also, direct references were made by some Justices to the issue of non-violent felons who are not dangerous. And on the separate state-law issue of whether administrative officials may have discretion to deny the right to bear arms, the government conceded that they do not.
Recall that under N.Y. State Rifle & Pistol Ass'n v. Bruen, a person who is among "the people" has Second Amendment rights, and conduct covered by the plain text of that Amendment is presumptively protected unless the state can satisfy its burden (yes, it's the government's burden) to demonstrate that the current gun control regulation is similar to valid historical analogue laws. In Rahimi, the issue is whether any Founding-era analogue laws exist to justify the federal gun ban against persons under a domestic violence restraining order (DVRO).
To uphold the ban, the government relies on laws that punished affrays, including the brandishing of weapons to terrify others, and laws that required persons who did so to find sureties to keep the peace. Such laws are not "historical twins" to today's DVRO laws but are argued to be close enough.
A significant concession arising in the arguments would have jumped out at any member of the criminal defense bar, although it was not on the exact issue before the Court. The United States had argued in its briefs that persons who are not "law-abiding, responsible citizens" may be disarmed. Solicitor General Elizabeth Prelogar began her argument by saying that not being "law-abiding" means having "committed serious crimes defined by the felony-level punishment that can attach to those crimes." Not being "responsible" "applies to those whose possession of firearms would pose an unusual danger."
Chief Justice Roberts asked whether a person who drives 30 in a 25 mile-an-hour zone is not "law-abiding." The response was that the term does not include a "misdemeanor or minor criminal conduct under state law," but only "serious crimes." Prelogar agreed that she was making a "misdemeanor/felony distinction," and that Rahimi did not have a "criminal record that would justify disarmament on that basis," but he was in the category of being a person who is not "responsible."
Roberts shot back: "Responsibility is a very broad concept. I mean, not taking your recycling to the curb on Thursdays." She replied that not being responsible means being "dangerous."
The gun ban on persons subject to a DVRO is in 18 U.S.C. § 922(g)(8). The very next provision, subparagraph (g)(9), bans gun possession by any person "who has been convicted in any court of a misdemeanor crime of domestic violence." Persons challenging the validity of that ban are sure to use Prelogar's concession that one must be a convicted felon to be not "law-abiding." Will the government then argue that such misdemeanants are under the "not responsible, dangerous" category? That seems to be what's left, but by definition a misdemeanor is not a serious crime.
And we are to assume that such misdemeanants are dangerous for life? That's the result, because civil rights are not taken away for a misdemeanor conviction, and hence cannot be restored, which is the requirement for restoration of gun rights under federal law. Only a felon can have civil rights taken away, and thus only a felon can have civil rights restored. That's how the courts have construed the relevant provisions, 18 U.S.C. §§ 921(a)(33)(B)(ii) and 922(g)(9).
A related issue that may have been obscure to many was Justice Amy Coney Barrett's statement: "But you're trying to save, like, the range issue. So you're not applying dangerousness to the crimes?" The term "range" should have been transcribed "Range," as it referred to the pending cert petition in Range v. Garland. In that case, the Third Circuit held the felon gun ban to be invalid as applied to a person who is not dangerous and who had been convicted of a non-violent crime.
Justice Barrett's remark stemmed from the government's argument that persons who are not "law-abiding and responsible" may be disarmed. As noted, Prelogar maintained that persons who are not law-abiding are those who have been convicted of serious offenses with "felony-level punishment," and those who are not responsible are "those whose possession of firearms would present a danger to themselves or others, but they don't have to be intentionally dangerous."
Justice Barrett asked why not just say "dangerousness" (instead of "not responsible"), pointing to surety and affray laws showing that "the legislature can make judgments to disarm people consistently with the Second Amendment based on dangerousness." Prelogar responded, "We don't think dangerousness is the standard with law-abiding, and I recognize you might have some different views on that, Justice Barrett."
That referred to then-Judge Barrett's dissent in Kanter v. Barr (7th Cir. 2019), in which she favored an as-applied challenge regarding non-violent felons who are not dangerous. In Kanter, and now in Range, the government argues that the ban on felons-in-possession of firearms is valid no matter how harmless the crime or how non-violent the convicted person may be. Since no limit exists to what a legislature may call a felony, no limit would exist on infringements on Second Amendment rights. That's what prompted Barrett to make the above comment to Prelogar about "trying to save … the [R]ange issue."
There was a good bit of discussion in the Rahimi argument on facial versus as-applied challenges. Justice Samuel Alito asked if it would be a defense to a federal prosecution under § 922(g)(8) if a state DVRO law does not require any finding of dangerousness. Prelogar said that no "as-applied challenges" could be made to federal charges.
Gorsuch asked about two potential as-applied challenges. What if a DVRO has no time limit and is "a lifetime ban"? That of course is an issue in the pending Range case. (It's also an issue regarding misdemeanor crimes of domestic violence.) Also, what if "someone's invaded their home and they use … a gun that they have illegally in self-defense," invoking the "historical common-law defenses of necessity and duress." No need to resolve those issues here, responded Prelogar.
Matthew Wright, Assistant Public Defender for the Northern District of Texas and counsel for Rahimi, began his argument by responding to Justice Gorsuch's question, noting that the courts don't consider self-defense, necessity, or duress in a dire emergency as defenses for the fleeting possession of a firearm by a prohibited person. Gorsuch repeated that the above defenses are not relevant in a facial challenge, but would be in an as-applied challenge.
Some discussion ensued about whether lack of due process in the state DVRO proceeding would be a defense to the federal charge, but several Justices said that the due process argument was not raised and is waived. Wright noted that the state-law standard of proof should at least be clear and convincing evidence.
Although Rahimi brought only a facial challenge, Justice Alito asked whether a restraining order against a man who threatened to shoot members of his family would be constitutional. Wright responded that "courts have always had broad power against the people who are brought before them."
Chief Justice Roberts asked, "you don't have any doubt that your client's a dangerous person, do you?" Wright responded that it depends on the meaning of "dangerous." Reflecting Rahimi's own actions, Roberts replied: "Well, it means someone who's shooting … at people. That's a good start." Laughter filled the courtroom.
Not boding well for Wright's facial challenge based on lack of historical analogues was Justice Barrett's interjection that "I'm so confused," after which Justice Kagan piled on, "you're running away from your argument … because the implications of your argument are just so untenable." But Wright stood his ground, correctly noting that courts have always had the power to make findings and punish wrongdoers, but that no historical analogues exist for banning firearms in the home based on "dangerousness."
Another issue arose that was not posed here, but is a brewing issue under the laws of certain states that passed more stringent legislation in the wake of Bruen. Justice Thomas was concerned with the distinction between being convicted of a crime and issuance of a protective order, where a "civil court is making the determination." Also, while the law at issue involves a judicial determination, how about if an administrative decision is the procedure used to deny arms to a person? (That's the state law issue, as explained below.) Prelogar responded that "it would be far more difficult to defend an executive branch or an administrative determination because of a separate Second Amendment principle that guards against granting executive officials too much discretion to decide who cannot have firearms."
She added that "there was some history about that in England," apparently referring to her argument in the Brief for the United States citing as a historical analogue the power under the Militia Act of 1662 of the Lord Lieutenants to disarm "dangerous" persons. But that was an oppressive law under Charles II, from which the government now retreated. As Prelogar said, "in the American legal tradition, these principles have been deployed through legislative judgments or through express judicial findings of dangerousness. So I don't think that we could point to the same history and tradition of giving executive branch officials that discretion."
As Justice Alito further probed, how about a permit requirement similar to what Bruen invalidated that "requires an applicant to show that he or she is sufficiently responsible"? If "implemented through a system of executive discretion," Prelogar responded, principles would "come into play that would guard against that kind of licensing regime."
Thank you for that, General Prelogar. It just so happens that New York's Concealed Carry Improvement [sic] Act grants the licensing officer discretion to decide if the applicant is "of good moral character," defined as "having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others." Similar laws were enacted in other states to flout the Bruen decision.
In Antonyuk v. Hochul, U.S. District Judge Glenn Suddaby held New York's requirement violative of the Second Amendment because it conferred "open-ended discretion on licensing officers to deny licenses to applicants based on undefined assessments," failure to limit consideration to "prior conduct" indicating likelihood of misuse of a weapon, and "failure to expressly remind the licensing officer to make an exception for actions taken in self-defense." The issue is pending before the Second Circuit.
And in Srour v. City of New York, Judge John P. Cronan of the Southern District of New York rendered summary judgment in favor of an applicant for a license to possess firearms who had been denied for supposed inadequate "good moral character." As he wrote, "Presumably, there were plenty of people at the time of our country's Founding who were considered to lack good moral character, but were not necessarily dangerous…." See my post NYC's "Good Moral Character" Requirement Void.
Bottom line: Given Prelogar's concession, the United States should be unlikely to provide any amicus support for such state laws, or defend proposed federal legislation with comparable provisions.
If the Court upholds the ban in Rahimi, look for a narrow decision reaffirming the text-history test, with the liberal Justices concurring to uphold the law but casting doubt on text-history. The next chapter in the saga will be as-applied challenges, which the Rahimi arguments seem to imply will have success.
