The Volokh Conspiracy

In two previous posts (here and here) I've pointed out some erroneous arguments by Merrick Garland's Justice Department in its reply brief filed in United States v. Rahimi. That's the case in which the Fifth Circuit recently struck down a federal statute imposing additional penalties, including a ban on the possession of firearms, on individuals subject to state domestic violence restraining orders (DVROs). The Supreme Court will hear argument in the case on November 7.

Here are several more, ranging from basic errors to nonsensical arguments. Each begins with a quote from the reply brief in italics, followed by a rebuttal.

"Rahimi next objects to the government's reliance on 19th-century surety statutes, under which potentially irresponsible persons could be required to post bond in order to carry firearms. But those laws illustrate the principle that legislatures may keep firearms away from those who are apt to misuse them."

Not so.  The person would simply post the bond or obtain sureties and keep on carrying. Even if the person violated the conditions imposed on them, the remedy was forfeiture to the government of the sum pledged, not loss of the right to arms. See the note at the end of this post regarding the research of Angus McClellan, Ph.D., that shows how surety laws were used to prevent spousal abuse.

"In criticizing those historical laws, however, Rahimi ignores that past lawmakers' failure to enact firearms laws can likewise reflect prejudice.  For example, past generations' failure to disarm domestic abusers may have reflected greater tolerance of domestic abuse, the belief that state intervention would undermine marital harmony, or women's inability to vote before the Nineteenth Amendment."

So the absence of any analogue even though the same societal problems existed somehow becomes an analogue because today we're better than the Founders? In identifying historical analogues, the burden is on the government to point to real laws that were actually passed and enforced, not to make excuses regarding why imaginary laws were not passed.  And, by the way, domestic abuse was widely condemned at the time of the Founding, and measures were enforced to prevent or punish it. Again, see the note at the end of this post.

"Rahimi cites no historical sources or judicial decisions—literally nothing—suggesting that legislatures lack authority to disarm dangerous individuals." Read More

On the theme of both-sidesism, let me draw an analogy. During the Great Awokening, there was a common call-and-response: the left would would say "Black Lives Matter," and the right would respond "All Lives Matter." The purpose of this response was obvious: to draw attention to the fact that there are many types of oppression in this world, and it is a mistake to only focus on one race. The response to the response was that "All Lives Matter" was actually racist (what isn't?) and was designed to minimize the oppression faced by black people, in particular. And don't even get started on "Blue Lives Matter." Even thinking about the lives of police officers is enough to get hate-grouped by the SPLC.

In the wake of October 7, we see a similar refrain: "we oppose Anti-Semitism, Islamophobia, and all forms of hate." It wasn't possible to focus on the most horrific act of Anti-Semitism since the Holocaust. Rather the message had to immediately be diluted to include all other types of hate. As we speak, the rate of Anti-Semitic attacks around the world is at record highs. But attention cannot be paid to Anti-Semitism, by itself.

Jew Lives Matter, All Lives Matter.

In a previous post, I wrote about the attempt by Merrick Garland's Justice Department in United States v. Rahimi, set to be argued before the Supreme Court on November 7, to sidestep the controlling "text and history" interpretative methodology described in District of Columbia v. Heller and in New York State Rifle & Pistol Ass'n v. Bruen. Rahimi is the case challenging the facial constitutionality of 18 U.S.C § 922(g)(8), a federal statute that disarms any individual subject to a state domestic violence restraining order (DVRO). In that post, I explained how the Government is contending, contrary to Bruen, that the established rule is that "Congress may disarm persons who are not 'law-abiding, responsible citizens.'" That statement is not just incorrect, but a serious distortion of what Heller actually said.

As it turns out, the Government's recently filed reply brief contains several other important errors about the fundamental principles to be applied when assessing historical analogue laws, which are central to Bruen's methodology.  Let's start with an easy one.  The Government takes Rahimi to task for allegedly asserting that Bruen limits courts to historical evidence from "near the time of ratification." Here's what Rahimi's brief actually said, after discussing attempts by some courts to boost some dicta in Heller to the level of substantive constitutional law:

[T]he original meaning of the Second Amendment must be determined exclusively using the text and the historical tradition of firearm regulations adopted near the time of ratification—not with assumptions or dicta. 

That statement by Rahimi was contrasting the use of actual historical traditions to determine the meaning of the Second Amendment, as opposed to twenty-first century dicta, or assumptions by lower courts regarding what those dicta meant. It was not an attempt to fine tune the period of time with precision.

Yet Rahimi is correct that the time around the adoption of the Bill of Rights must be the principal period to determine the original public meaning of its provisions.  Bruen quoted Heller to the effect that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them," before noting that "The Second Amendment was adopted in 1791…."

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From Kamdem-Ouaffo, PhD v. Colgate Palmolive Co., filed yesterday by Judge Claire C. Cecchi (D.N.J.); the lawsuit is a spinoff of an underlying lawsuit over "alleged misappropriation of Plaintiff's proprietary pet food flavoring information":

Defendants also note that, throughout his filings and in correspondence with the parties, Plaintiff has made a number of inappropriate assertions. For example, in a January 2023 email to certain of the Morgan Lewis and Naturasource Defendants, Plaintiff asserted that Defendants engaged in "abysmal sexual intercourse depravity," and stated, "[w]e do not hesitate about denouncing improper sexual intercourse fornicators like you, and when the form of government permits we will identify improper sexual inter[co]urse fornicators like you to [ ] the government to be prosecuted and punished, including death sentence if the Jihad/Sharia law so determines." ECF No. 40-2.

In the Colgate Action, Plaintiff made similar accusations against the Court, claiming that its prior orders have "been about SEX and MONEY, and nothing else about the laws of the United States." Kamdem-Ouaffo v. Colgate Palmolive Co., No. 15-7902, 2023 WL 4287611, at *2 n.1 (D.N.J. June 30, 2023). In that case, Plaintiff also asserted that the Third Circuit Court of Appeals only credited his "argument to the extent that it does not conflict with the Circuit Judges' personal financial, improper sexual intercourse, and political interests." Id. As has been previously stated, this Court is in no way influenced by these comments and continues to liberally construe Plaintiff's pro se pleadings and examine the relevant arguments made therein.

On a more positive note, here's another passage from the email the judge quoted:

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Federal prosecutors have announced an arrest in the Cornell threats case (see Sunday's post):

Patrick Dai, age 21, a junior at Cornell University who is originally from Pittsford, New York, was arrested today on a federal criminal complaint charging him with posting threats to kill or injure another using interstate communications….

The complaint alleges that Dai posted threatening messages to the Cornell section of an online discussion site, including posts calling for the deaths of Jewish people and a post that said "gonna shoot up 104 west." According to information provided by Cornell University Police and other public information, 104 West is a Cornell University dining hall that caters predominantly to Kosher diets and is located next to the Cornell Jewish Center, which provides residences for Cornell students.

In another post, Dai allegedly threatened to "stab" and "slit the throat" of any Jewish males he sees on campus, to rape and throw off a cliff any Jewish females, and to behead any Jewish babies. In that same post, Dai threatened to "bring an assault rifle to campus and shoot all you pig jews."

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