The Volokh Conspiracy

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NFIB and Rahimi: Is a surety a mandate to prevent dangerous people from possessing a gun or a tax on dangerous gun owners?

Trying to reconcile Chief Justice Roberts on the ACA and 922(g)(8).


Chief Justice Roberts's greatest gift is to make a complicated case look simple–so simple, that the answer he reaches seems like the only plausible outcome. In less than 18 pages, Roberts purports to reaffirm Bruen while actually diluting the precedent. Now, the lower courts can uphold any gun control law that is "is consistent with the principles that underpin our regulatory tradition." If you read it quickly, you won't even realize what he's done. But this majority opinion in Rahimi is yet another masterclass in misdirection.

What is the leading "principle" that underpins the tradition for 922(g)(8)? Surety laws. As I was reading through the Chief's opinion, I could not stop thinking about the Obamacare cases. My NFIB PTSD was recently triggered by Moore, and Rahimi dragged me back in.

What is the connection, you may ask? Society has long determined that certain conduct is bad. There are several ways to deal with misconduct. First, after the person engages in misconduct, he can be punished. This is the criminal justice system. Second, if the person is likely to engage in misconduct, he can be subjected to some sort of prospective injunction to bar him from engaging in that misconduct. Think of the domestic violence restraining order at issue in Rahimi.  Third, a person can choose to prospectively pay some sort money that will allow them to engage in that misconduct.

Wait a minute, you might ask. Number three is not an option! Yes, it is. Look no further than the Affordable Care Act. Congress determined that going uninsured was a bad thing. To address that problem, Congress mandated that people purchase health insurance. But Congress allowed people to go uninsured by paying a penalty–or is it a tax? Doesn't really matter for present purposes. In some cases, the government may determine that the money generated by the fee can be used to address the underlying problem. Better that uninsured people pay a penalty than to throw them in jail, right? If you want another example, think of Jacobson v. Massachusetts. People who were unvaccinated could choose to pay a nominal fine. Once they paid that fine, they were free to mingle in society, without being vaccinated.

There is also a fourth way to deal with misconduct: the surety system. Long before there were law enforcement agencies, society developed a system to ensure bad conduct does not occur. In short, people who were at risk of engaging in misconduct could submit a payment to the court–known as a surety. If they behaved for a prescribed period of time, they would get their surety back. If they engaged in that misconduct, they would surrender the surrety. Thus, there was a financial incentive to behave.

Chief Justice Roberts explained that surety laws were invoked to prevent domestic violence. For example, a wife could demand a surety against an abusive husband. From this practice, Roberts finds support for Section 922(g)(8). But does it?

After posting a surety, a suspect domestic abuser can freely possess a firearm. But under 922(g)(8), a suspected domestic abuser cannot possess a firearm. Justice Thomas's dissent explains why this historical precedent provides no support at all for 922(g)(8). And this analogue brings us back to NFIB. Is the surety closer to a mandate, coupled with a penalty? Or is a surety closer to a tax on going uninsured? I think the answer is the latter.

A better analogue would be a system where a person who may pose a risk to others posts some sort of financial bond; the failure to post that bond would result in incarceration; and engaging in misconduct would also result in posting that bond. I think all would agree that Mr. Rahimi belongs behind bars, but if he is left on the street, there is no historical analogue that supports disarming him. Perhaps there is a "principle," but that exception will soon swallow the entire rule.

We will see what the Court does. The SG asked the Court to grant plenary review in Range and other pending Second Amendment cases. Or the Court may GVR everything to let the lower courts wallow in confusion for a few more years.