B.L.U.F. The United States filed a brief with the Supreme Court where they argue that the definition of “The People” is in the hands of the state. And other reasons why the state gets to decide when the Second Amendment applies.
—Brief of United States, United States v. Rahimi, No. 22-915 (U.S.)
The question is well-formed and well suited to an opinion by the Supreme Court. This is a dangerous gamble for the state. While they are looking at specifically §922(g)(8) there is nothing to keep the Justices from looking at all of §922(g).
If the Justices decide to look at more than just §922(g)(8) they could very well throw out much of the GCA. In addition, it is likely to put a hurting on many other infringements and infringement arguments.
—District of Columbia v. Heller, 467 U.S. 837, 2816–17 (2008)
Double emphasis added.
That one sentence is what all infringements hang on since Heller. “Not unlimited” means that the states have been searching for the limit ever since. They will push until a court stops them.
Post Bruen they are losing, but this one sentence is still their foundation.
It is also important to note that Scalia was explicit about “felons and the mentally ill”, but omitted all the other prohibited classifications. This is reading into dicta what was not said. Doing it from our side is just as bad as when the state does it from their side. Though I like to think that the side of the Constitution gets it correct more often than not.
In my opinion, the
nothing in our opinion should be taken to cast doubt on … was added to this opinion to get the more left—leaning Justices to sign on, in particular, Justice Roberts.
The Statements with Embedded Assumptions
—Brief of United States at 2, Rahimi, No. 22-915
This is another case of a person losing their constitutional rights because they agreed to the misdemeanor before it made them a prohibited person. Hayes was indicted in 1994. The state enacted the change to the GCA in 1996. For two plus years, after that indictment, Hayes could possess firearms. Then in 1996, he couldn’t.
At that moment in 1996, he became a prohibited person in possession of a firearm, a felony.
The state argues, in their opening, that many state entities have adopted the infringement of banning people who have not been convicted of a crime because
if there was a threat of domestic violence.
—id. at 6
The state is arguing that the laws of a country, which we had just kicked out, were binding. They argue that the laws of England, a century before the founding, were what the founders actually meant when they said, “shall not be infringed!”
The state is also upset that the 5th Cir. didn’t find their regulations banning people of color, Indians, Catholics, and British loyalist the same as an individual losing their rights.
As stated above, here is the quote:
Although the Second Amendment guarantees an individual right to keep and bear arms, that right is not unlimited. As this Court recognized in District of Columbia v. Heller —id.
Here is a quote that I find infuriating:
in NYSRPA v. Bruen, 142 S. Ct. 2111 (2022), the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens. —id.. Neither the Heller Court nor the Bruen Court say that the Second Amendment allowed Congress to disarm anybody.
The state then moves on to arguing that the wording of the Second Amendment that was NOT adopted should control what the meaning of the Second Means.
Second Amendment precursors proposed during the Founding Era guaranteed the right to keep and bear arms only to “honest and lawful” citizens or those who posed no “danger of public injury.” And commentators in the 19th century recognized the government’s authority to disarm individuals who were not “orderly,” “peaceable,” or “well-disposed.”—id. at 7. Translation to modern language: The amendments to
the bills that were passed in congress are what counts , and the comments of TikTok influencers further strengthen the argument that the failed amendments are what really count.
The state goes on to argue that disarming “loyalist” is the same as disarming an individual who has not been convicted of a crime. They argue that we should be looking at regulations in the 1800s (likely late 1800s) are also supportive.
—id. at 7–8
Notice the language game. They are implying that
… persons who are not law-abiding, responsible citizens. …—id. at 7 are not a part of “The People”. In addition to the normal “law-abiding” they add the very subjective term “responsible”.
Who gets to define what a “responsible citizen” is? That is a gigantic question.
Of course, the state argues that §922(g)(8) is only triggered when a court does all the right things and they KNOW that the target of the restraining order is a bad person. The state is never willing to admit that these sorts of restraining orders are often boilerplate and rubber-stamped.
Ask 100 men who have gone through divorces if their estranged wife ever made false allegations, just to get a step-up in the proceedings. I’ll bet that more than 50% say it happened to them. According to the Psychiatric Times it is lower at somewhere between 2% and 35%.
Oh my, the state claims they put my rights up for a vote and I lost:
… at least 48 States and territories have adopted laws that disarm, or authorize courts to disarm, individuals who are subject to domestic-violence protective orders. That consensus confirms that the persons subject to Section 922(g)(8) are among those who can permissibly be disarmed because they cannot be trusted with firearms.—Brief of United States at 8, Rahimi, No. 22-915. I don’t remember my rights being put to a vote. In addition, I’m very concerned about what the wolves will vote to have for dinner, lamb, or hay?
There is an excellent, for us, quote in there
… Congress may ban dangerous and unusual weapons …. This is excellent because it acknowledges that it is and and not or that is the rule. I would have no trouble quoting this as an example of why AW/LCM bans are unconstitutional under Heller
The state implied that they had the power to disarm a part of The People. Those that they determine are not “law-abiding” or who are not “responsible”. They even agree that those categories are part of The People. They just believe that the state has the power to trample on their Second Amendment protected rights.
—id. at 9
United States v. Castleman is not a good citation for the state. All 9 Justice agreed that attempting to poison the mother of your child qualifies as a “misdemeanor crime of domestic violence”.
Recognizing that “[f]irearms and domestic strife are a potentially deadly combination,” United States v. Hayes, 555 U.S. 415, 427 (2009), Congress forbade the possession of firearms by anyone convicted of “a misdemeanor crime of domestic violence.” 18 U.S.C. §922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having “intentionally or knowingly cause[d] bodily injury to” the mother of his child. App. 27. The question before us is whether this conviction qualifies as “a misdemeanor crime of domestic violence.”
We hold that it does.
—United States V. Castleman, 188 L. Ed. 2d 426 (2014)
It is crucial to know the question. Without knowing the question, it is impossible to understand the opinion of the Court. The only thing that was held in U.S. v. Castleman is that he was guilty of the crime of misdemeanor domestic violence.
Castleman didn’t argue that he should be able to possess firearms because §922(g)(9) was unconstitutional, he argued that hadn’t used physical violence. Because he didn’t ask the Court to rule on the constitutionality of §922(g)(9), the court did not address it.
Because Castleman didn’t touch on a constitutionality question, the only reason the state is citing it is to get Sotomayer’s words into the record.
All too often, the only difference between a battered woman and a dead woman is the presence of a gun. Those words do not address a constitutional question. Thus, making this argument emotional blackmail.
The state claims that TROs are temporary. It doesn’t matter. The sheriff in the antebellum south would frequently “temporarily” disarm black households. Later that same day, the KKK would arrive. “Temporary” didn’t matter when the trees bore strange fruit.
A right delayed is a right denied.
The state continues to hammer on The People only including those that are law-abiding, responsible citizens. They claim that congress has the power to remove rights from anybody they decide is not responsible or not law-abiding. The gist of this? You could be disarmed for speeding. You didn’t obey the law. You were not behaving responsibly.
—Brief of United States at 10, Rahimi, No. 22-915
More emotional blackmail. It also makes blanket statements that are not backed up. What “mode of analysis” has the Supreme Court specifically disapproved? The state is actually blaming the Fifth Circuit, claiming that their decision puts everybody at risk.
We Have the Power!
The Second Amendment Allows Congress To Disarm Persons Who Are Not Law-Abiding, Responsible Citizens—id.. No, it does not. It says, in the words the state quotes in the very next paragraph, that the right of the people shall not be infringed. There is no reading of the plain text of the Second Amendment where it implies that congress is allowed to infringe.
Of course, Scalia’s words come back to haunt us, yet again:
But as this Court has repeatedly emphasized, “the right secured by the Second Amendment is not unlimited”—id.. Every. Time.
—Heller, 467 U.S. at 2821
This is the more complete quote. It does not limit the rights protected by the Second Amendment to just
law-abiding, responsible citizens. Instead, it says that the subset of law-abiding, responsible citizens have an elevated right to keep and bear arms.
—Brief of United States at 10, Rahimi, No. 22-915
See —Heller, 467 U.S. at 2790. The Court goes on for six paragraphs about who “The People” are.
What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.—id. at 2790–91
This is the definition of The People. When the state argues that it is a subset of The People who are protected by the Second Amendment, they are absolutely contradicting the Heller opinion.
—Brief of United States at 12–13, Rahimi, No. 22-915
Double emphasis added.
Doctrine is not regulation. The state is arguing that the current system of infringements rests on the states’ ability to limit the set of people protected by the Second Amendment. If that doctrine were to fall, then many (most?) infringements would also fall.
Rights come from our creator. They do not come from the state.
Because the Amendment “codified a right inherited from our English ancestors,”—id. at 13 quoting Bruen This statement says we inherited the right from our English ancestors. It does not explicitly state that our English ancestors were endowed with those rights by their creator. Mostly because that would be overly wordy.
The state then claims
a court should begin with English law—id.. Ok, fine. That means we can look at how the English protected that pre-existing right. It does not mean that the right came from English law. This is what the state wants. They want the right to be state given.
If the state can give it, the state can remove it.
Wow. The state is arguing that any time period “after its enactment or ratification” is probative. Under this interpretation of the Court’s words, the public understand of today is just as probative as the public understanding in 1792.
Words have meaning:
Parliament first recognized a legal right to possess arms in the Bill of Rights—id.. Yes, the creator given right has existed for all time. The English decided to legally recognize a subset of that right in 1688. It means nothing except that The People’s rights were slowly being recognized by the state.
The next 3 pages talk about English law, English tradition, English understanding of the right to keep and bear arms. Which is to say, meaning less. When the state has to reach into a different country in a different century to justify a modern infringement, it is a step too far.
—id. at 16
I hope you are enjoying this article. I do hope you judge it by the precursors. What I wrote, then erased, is essential to the message in this article.
That is bullshit. Every time the state goes to the “These are the words they used in preliminary drafts of the Second Amendment”, my mind goes “They didn’t adopt that version because it isn’t what they wanted!”.
—id. at 18
Bruen explicitly said a history and tradition of regulation. Regulation means laws passed. It does not mean newspaper articles. The state is also implying that late 1800s citizens had the same understanding of the Second Amendment as the Founding Fathers did.
This is a bogus statement. This entire argument is bogus. 1860s is not 1790s.
The state carries on like this for another 27 pages. The gist being that The People actually means “law-abiding, responsible citizens” with the implication that the state gets to define those terms. They didn’t even bother to cite regulations from the antebellum period, instead relying on newspaper articles.
They move on to conflating the racists laws banning classes of people based on their race, black, Indian, mixed with a ban on an individual. They attempt to conflate disarming British loyalist and Catholics with §922(g)(8). They conflate temporary confiscations and surety laws with lifelong bans.
The only thing I can see as a potential problem for the Second Amendment is:
A protective order triggers disarmament under Section 922(g)(8) only if it satisfies stringent requirements, which confine the statute to the most dangerous domestic abusers and guard against the risk of inadvertently disarming law-abiding, responsible citizens. This Court need not decide here whether the Second Amendment requires those limits—some state laws omit similar conditions, see Illinois Cert. Amicus Br. 5-7—but their inclusion in Section 922(g)(8) makes this case particularly straightforward.
—id. at 32
They might be able to sneak §922(g)(8) through on this. It does require that the Court accept the fiction that TRO’s aren’t as easy to get as falling down.
I want to be done with this, but the following struck me.
—id. at 37
Double emphasis added.
The absolute goal blindness in this paragraph is overwhelming. The number of states that responded to Bruen by making the majority of their state a “sensitive place” is substantial. Multiple Bruen tantrum challenges have already made it to the Supreme Court’s official notice.
To say “trust me, I won’t make speeding a prohibiting action” begs the question of how New York could make state forests “sensitive places”.