On Tuesday, the Supreme Court heard oral argument in United States v. Rahimi. Things did not go well for Mr. Rahimi. I can see him losing 7-2, 8-1, or maybe even 9-0, over some very stern concurrences. That the Supreme Court will (almost certainly) reverse the Fifth Circuit does not mean that the Fifth Circuit failed to faithfully apply Bruen. To the contrary, the Supreme Court seems to already have doubts about a precedent that, like Dobbs, is in its fifth trimester. Don't blame the inferior courts for taking the Supreme Court at its word.
The most likely path forward is for the Court to give (in Justice Kagan's words) "useful guidance" for the lower courts on how to apply Bruen. And by "useful guidance," Justice Kagan means watering down the Bruen test so lower court judges can pretend Justice Breyer's Heller dissent is controlling. What is that guidance? Solicitor General Prelogar explains "The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right." Here, the Solicitor General purports to lecture the--what we are told is--the most originalist Supreme Court ever on originalism. Yes, after decades of discussion about original meaning, and we're stuck with "identifying principles" from history.
Still, we should not abandon all hope. On two occasions, Justice Barrett shined a light on another case looming on the docket.
Early in the argument, Justice Barrett acknowledged that domestic violence is a fairly easy case with regard to a "tradition of dangerousness." Rahimi's conduct "might be in a heartland," Barrett asked, "but then you can imagine more marginal cases." That is, a case where it is no so clear that the defendant is dangerous.
Later, Justice Barrett pressed the SG about what would happen in a case where the defendant is not dangerous. Prelogar responded, "You don't need to resolve that issue here. This is a is a case just about someone who is not responsible in the form of being dangerous." Barrett asked, "But you're trying to save, like, the range issue. So you're not applying dangerousness to the crimes?"
If you skimmed the transcript, you might have missed the reference. Indeed, "range" was lowercase and not italicized. Here, Barrett was referring to Garland v. Range. Range presents the question of whether a person convicted of making false statements to obtain food stamps is subject to the disqualification under Section 922(g)(1). On June 6, 2023, the en banc Third Circuit held that under Bruen, Range could not be disarmed.
Four months later, the Solicitor General filed a cert petition in Range. (By contrast, the Solicitor General filed a cert petition fifteen days after the panel decided Rahimi--Prelogar has made it a habit to skip en banc review in the Fifth Circuit.) But the SG did not ask the Court to grant certiorari in Range right away. Rather, the SG urged the Court to hold Range pending Rahimi. You can imagine why. Rahimi presents the worst facts possible for a Second Amendment case. Meanwhile, a person who engaged in welfare fraud is a far more sympathetic defendant. In Range, the respondents (represented by Cooper & Kirk) told the Court to grant the government's petition, even though they won in the lower court! (You don't see that happening often.) The government's reply brief, filed six days before Rahimi was argued, once again urged the Court to hold Range pending Rahimi.
Back to Justice Barrett. She asked the SG "But you're trying to save, like, the [Garland v. Range] issue. So you're not applying dangerousness to the crimes?" Prelogar responded, "That's correct." Prelogar added, "We think that there are additional arguments that can be made to defend felon disarmament and that those depend on the unique history and tradition with respect to criminal conduct." And looking ahead, the SG said, "we would hope to have the opportunity to present those arguments and perhaps persuade you in a future." Barrett interrupted Prelogar. "In that case perhaps." That is, Range. After some cross-talk, Prelogar said, "yes."
Range will be distributed at the November 17 conference. If the Court grants certiorari, the case can be argued in the March/April window. Range and Rahimi would become companion cases. Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from Bruen. Indeed, the Court may be able to split those cases in a way so as not to water-down Bruen. The Court could even vacate-and-remand Rahimi in light of Range. If the Fifth Circuit is given clear guidance on what the state of the law is, it can follow that guidance.
