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.

(3,800 words)

The Question

Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence protective orders, violates the Second Amendment on its face.
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.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
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

“Firearms and domestic strife are a potentially deadly combination.” United States v. Hayes, 555 U.S. 415, 427 (2009). To address that acute danger, Congress enacted 18 U.S.C. 922(g)(8), which disarms individuals who have been found to pose a specific threat of domestic violence and are subject to protective orders. At least 48 States and territories have adopted similar laws, which continue a longstanding history and tradition of disarming those who are not law-abiding, responsible citizens. But the Fifth Circuit invalidated Section 922(g)(8) on its face, holding that the Second Amendment bars Congress and the States from enacting these measures to keep firearms out of the hands of individuals who endanger their intimate partners.
Brief of United States at 2, Rahimi, No. 22-915
United States v. Randy Edward Hayes, 555 U.S. 415, asks “when is it domestic violence?” There was no question that Hayes was a nasty piece of work. There was no question that he had a previous conviction for “[the] misdemeanor crime of domestic violence”.

To clarify, Hayes was convicted of a generic battery charge against his then wife. The crime was not labeled as domestic violence. Hayes claimed that since it was a generic charge, it didn’t make him a prohibited person. The Supreme Court found that the label didn’t matter, what mattered was the act of domestic violence.

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.

The court of appeals stated that, because Rahimi presumptively holds Second Amendment rights, the government bore the burden of identifying historical analogues to Section 922(g)(8). Pet. App. 17a. The court then rejected each analogue the government offered. For example, the government cited a 17th-century English statute disarming individuals judged to be dangerous, but the court concluded that the statute was “not a forerunner of our Nation’s historical tradition of firearm regulation.” Id. at 18a. And the government cited colonial and early state laws disarming categories of individuals legislatures “considered to be dangerous,” but the court dismissed those laws because they operated on a categorical basis, while Section 922(g)(8) rests on individualized findings. Id. at 19a.
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 not adopted, that were passed in congress are what counts in determining the meaning of the bill, 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.

Section 922(g)(8) fits within that history and tradition because it disarms persons who are not law-biding, responsible citizens. Individuals subject to domestic violence protective orders pose an obvious danger to their intimate partners because guns often cause domestic violence to escalate to homicide and because abusers often use guns to threaten and injure their victims. Armed abusers additionally endanger people beyond their partners—such as children, bystanders, and police officers.
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?

The Fifth Circuit failed to justify its extraordinary conclusion that the Second Amendment prevents Congress and the States from disarming individuals whom courts have found to pose a specific threat of domestic violence. The court emphasized that the Second Amendment protects the right of “the people” to keep and bear arms. But just as Congress may ban dangerous and unusual weapons regardless of whether they qualify as “arms,” so too it may disarm persons who are not law-abiding, responsible citizens regardless of whether they are among “the people.”

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.

Emotional Blackmail

In cases of domestic violence, firearms pose a grave threat. See United States v. Hayes, 555 U.S. 415, 427 (2009). More than a million acts of domestic violence occur in the United States every year, and the presence of a gun substantially increases the chance that violence will escalate to homicide. United States v. Castleman, 572 U.S. 157, 159-160 (2014). “All too often,” this Court has recognized, “the only difference between a battered woman and a dead woman is the presence of a gun.” Id. at 160 (brackets and citation omitted).
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”.

JUSTICE SOTOMAYOR delivered the opinion of the Court.

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.

The Fifth Circuit’s contrary decision was profoundly mistaken. It conflicts with this Court’s precedents—indeed, it employs a mode of analysis that this Court has specifically disapproved. It misreads the history of the Second Amendment. And it endangers victims of domestic violence, their families, police officers, and the public. This Court should reverse.
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 Citizensid.. 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.

And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.
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.

With the new citation system, it makes it much easier for me to bounce out of writing an article to look citations up. More and more it proves to me that the state will twist words and meaning to meet their ends.
In Heller, this Court described the right to keep and bear arms as a “right of law-abiding, responsible citizens.” 554 U.S. at 635. The Court also made clear that legislatures may adopt categorical prohibitions on the possession of arms by those who are not law-abiding and responsible, identifying “longstanding prohibitions on the possession of firearms by felons and the mentally ill” as “examples” of “presumptively lawful regulatory measures.” Id. at 626, 627 n.26.
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.

Many aspects of Second Amendment doctrine rest on the premise that the Amendment protects only law-abiding, responsible citizens. In judging whether a modern firearms regulation is consistent with a historical precursor, a court must ask “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Bruen, 142 S. Ct. at 2133. In judging whether a weapon is dangerous and unusual, a court must consider whether the weapon is “typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. And States may require applicants for gun permits to pass background checks and take safety courses because such requirements ensure that those who carry guns “are, in fact, ‘law-abiding, responsible citizens.’ ” Bruen, 142 S. Ct. at 2138 n.9 (citation omitted). Those legal principles all reflect the understanding that the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.
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 lawid.. 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.

… because evidence of the “public understanding of a legal text in the period after its enactment or ratification” is probative of original meaning, a court should consider how the Second Amendment was understood in the 19th century.

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 Rightsid.. 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.

Many precursors to the Second Amendment described the class of persons entitled to keep and bear arms using synonyms for “law-abiding, responsible citizens.”
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!”.

Antebellum commentators shared the Founding generation’s understanding of the Second Amendment’s scope. Not every commentator who discussed the right specifically addressed the government’s power to disarm certain individuals—just as not every commentator specifically discussed its power to prohibit dangerous and unusual weapons or to bar carrying weapons in sensitive places. But the commentators that did address the issue confirmed that the government may disarm those who are not responsible or law-abiding.
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:

Section 922(g)(8)’s strict requirements confirm its constitutionality
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.

The Fifth Circuit claimed that the government’s reading lacks a “limiting principle” and would allow Congress to disarm “speeders” or those “who do not recycle.” Pet. App. 11a. But the “law-abiding, responsible citizens” principle no more allows Congress to disarm anyone it pleases than the sensitive-places doctrine allows Congress to ban guns anywhere it pleases. See Bruen, 142 S. Ct. at 2133. Rather, this Court’s references to “law-abiding” and “responsible” citizens reflect the Second Amendment’s history and tradition and exclude only criminals and individuals whose possession of firearms would endanger themselves or others (such as underage individuals, persons with mental illnesses, drug users, and persons subject to protective orders). And it trivializes the profound harms of domestic violence to liken disarming domestic abusers to disarming “speeders” or those “who do not recycle.”
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”.


Brief of United States, United States v. Rahimi, No. 22-915 (U.S.)
District of Columbia v. Heller, 467 U.S. 837 (2008)
United States V. Castleman, 188 L. Ed. 2d 426 (2014)
False Allegations of Abuse During Divorce: The Role of Alienating Beliefs, Psychiatric Times, (last visited Aug. 16, 2023)
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By awa

4 thoughts on “Brief of United States v. Rahimi, US Supreme Court – UPDATED”
  1. Not a new tactic. The leftists/statists have been trying that “the people means the government” line for ages.
    The Declaration of Independence might not be the legal founding document of the US, but the Constitution is reliant on the statements made in the Declaration. It rings hollow without it.
    Specifically, “…That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” from the 2nd paragraph of the Declaration comes into play here. I (and from what I can tell, the Founding Fathers) read that as the Government IS the people. Individuals consent to be governed by a government of representatives answerable to the public.
    What leftists do is distort that statement/ideal. The Government IS the people therefore, the government is equivalent to a person’s head. When the brain says do X, the body complies. (Not well described, but I hope you get the point.)
    Government by the people, for the people, and of the people, does not mean that government IS the people, it means the people are the government. A distinction lost on the power hungry, all-powerful State adoring leftists.

  2. Hot dang but you nailed this one out of the park!

    It is frustrating whenever someone makes a bad faith statement knowing it will not be challenged out of professional courtesy or apathy. Things like “as everyone knows” or “it is plain to see that because of X then Y”

  3. Read it. Great job – thank you!
    (Nothing of relevance to contribute, so leaving this here in lieu of getting an error when trying to hit the “like” button. 🙂 )

  4. The more I read the more I wonder if the courts consist of people who can’t read, people who like to fantasize, people who think themselves to be legislators, or people who just make it up as they go along on a political bend.

Only one rule: Don't be a dick.

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