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Rahimi On Remand

"We read the Court's analysis in Rahimi to have modified Bruen in at least one relevant respect."

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On September 12, the Fifth Circuit decided United States. v. Rahimi on remand from the Supreme Court. All-too-often, people think a Supreme Court decision is the end of the matter. But in reality, the lower court has to actually enter a judgment to carry the Supreme Court's ruling into effect.

Here is how the per curiam panel opinion describes Rahimi:

The Supreme Court, clarifying its Bruen test, reversed our judgment and held that § 922(g)(8) is facially constitutional. United States v. Rahimi, 602 U.S. ----, 144 S. Ct. 1889 (2024).

I agree. The Supreme Court did not faithfully apply Bruen. It changed the test! For all of the outrage about the Fifth Circuit's reversal rate, a lower court cannot be faulted for faithfully following precedent. Ditto for when the government changes its position on appeal, thus radically altering the dispute, which happened in the mifepristone cases.

The panel identified at least one important regard in which the Court "modified" the Bruen test:

We read the Court's analysis in Rahimi to have modified Bruen in at least one relevant respect. In Bruen, the Court instructed that surety laws provided no historical analogue for banning a person from having a gun, because surety laws only required "certain individuals to post bond before carrying weapons in public." 597 U.S. at 55. "These laws were not bans on public carry." Id.; see also id. at 59 (same). So any "reliance on [surety laws] [was] misplaced." Id. at 55. In Rahimi, the Court announced that surety laws "confirm" that covered individuals "may be disarmed." 602 U.S. at ----, 144 S. Ct. at 1901.

The panel is exactly right. In Bruen, Justice Thomas rejected the relevance of the surety laws. But in Rahimi, Chief Justice Roberts glommed together the surety laws (ex ante restriction) with felon disenfranchisement laws (ex post restriction) to support the disqualification for those subject to domestic violence restraining orders, but who were not convicted.

Judge Ho wrote a concurrence that makes this point explicit.

First, he explains that it is not the role of the lower courts to anticipate where the Supreme Court is likely headed:

The Supreme Court can adjust or amend its own precedents at its discretion. Inferior courts have no such luxury. The Supreme Court has repeatedly instructed us to follow its precedents, whether we agree with them or not—and whether we expect the Court itself to follow them or not. See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989); Agostini v. Felton, 521 U.S. 203, 237 (1997); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); United States v. Hatter, 532 U.S. 557, 567 (2001).

Second, as we all know, only the Supreme Court can modify its own precedents. Indeed, the Fifth Circuit halted the Mississippi abortion law that was upheld in Dobbs:

So we'd be defying the Court's express command if we decided cases based on anticipated changes to its precedents. It's up to the Court to modify or overrule its own precedents, as it alone deems appropriate—and to reverse us when it does. See, e.g., Jackson Women's Health Org. v. Dobbs, 597 U.S. 215 (2022), rev'g 945 F.3d 265 (5th Cir. 2019).

Third, Judge Ho explains that the Fifth Circuit in Rahimi faithfully followed Bruen.

That's exactly what happened here. We faithfully applied the Court's decision in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022). See United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). No member of our court disagreed with our interpretation or application of Bruen. As one of our distinguished colleagues put it, our job is not to relitigate Bruen, but to "operat[e] in good faith" and "faithfully implement Bruen." United States v. Daniels, 77 F.4th 337, 357–58 (5th Cir. 2023) (Higginson, J., concurring).

But fourth, the SCOTUS majority modified Bruen:

The Court has now modified Bruen—as our decision today explains. See United States v. Rahimi, 602 U.S. _ (2024), rev'g 61 F.4th 443; ante, at 2 n.1.

Judge Ho also highlights a point I raised on the blog: why must a criminal defendant, seeking to dismiss an indictment, bring a facial challenge to the statute? This framework, I observed, seems inconsistent with the standard in United States v. Lopez:

I write separately to note a second alteration to Court precedent. In the past, the Court has held unconstitutional laws that punish people who don't belong in federal prison—even if the defendant himself does. See, e.g., United States v. Lopez, 514 U.S. 549 (1995); see also United States v. Kersee, 86 F.4th 1095, 1101–02 & n.2 (5th Cir. 2023) (Ho, J., concurring). That principle readily applies here—victims of domestic violence don't belong in prison. . . .

Well, consider what the Court did in Lopez. Like Rahimi, Lopez is a dangerous person. Lopez was paid to bring a gun to school "so that he . . . could deliver it after school to 'Jason,' who planned to use it in a 'gang war.'" United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993). But the Court nevertheless decided Lopez's Commerce Clause challenge—and held the Gun-Free School Zones Act unconstitutional—because it sweeps in those who don't belong in a federal prison. See 514 U.S. at 562 ("§ 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.").

The same logic applies here.

And it is no answer to say that the Second Amendment requires a different standard than the Commerce Clause or the First Amendment.

As noted, Lopez involved a claim under the Commerce Clause, not the Second Amendment. But the Court has repeatedly instructed that "[t]he constitutional right to bear arms in public for self-defense is not 'a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'" Bruen, 597 U.S. at 70 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). So our court dutifully decided Rahimi's claim.

Judge Ho concludes that the Court may have foreclosed Rahimi from raising this claim, but others may raise it in a future proceeding:

The Supreme Court has now decided Rahimi. The decision does not mention Lopez, and it does not allow Rahimi to litigate the sincere concerns expressed by various amici curiae, judges, scholars, and practitioners. It does acknowledge the "potential faults" with § 922(g)(8). 602 U.S. at _ n.2. But it concludes that any defects must be addressed in a future proceeding.

Rahimi is an unsatisfying decision that quietly modified a two-year old precedent. And everyone who joined that decision knows it. Justices Barrett and Kavanaugh were never fully happy with Bruen in the first place. Had it not been for the chaos caused by the Dobbs leak, I think the Thomas majority might have fractured. And Justice Gorsuch cannot hide behind the facial analysis. Only Justice Thomas was willing to stand up for the Second Amendment, even when it allowed a dangerous person like Mr. Rahimi to have a firearm.