The very first thing to note is that Mr. Rahimi isn’t actually involved with this case. He was recently interviewed in prison, where he claims to be “reformed”. He says that he will never touch another gun and wishes the case would just go away.
With that out of the way, the takeaway from today’s oral arguments is that everybody is playing on a bigger chessboard than just this case.
§922 is the unlawful acts portion of the Gun Control Act. (I wonder if “gun control” implicates the Second Amendment?)
This case is about §922(g)(8), a person with a restraining order for domestic violence being a prohibited person. According to Mark Smith, only about 21 convictions per year are made on §922(g)(8). This means that this is not an arrow in the quiver of the state. This is a tack they place on the chair of somebody they have already kitted up.
Rahimi was charged with §922(g)(8) because he was a bad man doing bad things and the authorities needed him off the streets now. He is currently in prison for all the other things he did. If this charge were thrown out, it would not change his situation in the least.
It is also important to note that this case was brought back from the dead by the Fifth Circuit court. Just before Bruen was issued, they had found, via means-end, that §922(g)(8) was constitutional, and the charge would stand against Mr. Rahimi.
After Bruen, the Fifth Circuit court brought the case back. On the post Bruen pass through the Circuit Court, they found that §922(g)(8) was unconstitutional. I do not remember if they remanded the case back to the district court. Regardless, we had a circuit court opinion that followed Bruen and found that parts of the GCA were unconstitutional.
At the same time, the Range case is currently seeking certiorari. That case is likely to be taken up by the Supreme Court as well. If the Supreme Court grants certiorari on the Range case, it will mean that there would be three gun rights cases to be heard by the Supreme Court within the next year, maybe even this term.
What this means, is that the Rahimi case is a holding action by the state, DOJ. They would love a win. The facts of Rahimi are bad. Mr. Rahimi was a bad man doing bad things.
Therefore, the briefs and oral arguments today, were about setting the groundwork for the cases to come without losing this case.
What does the state want out of this?
Thank you to Justice Kagan for getting the state to actually say it out loud:
The first error we see is that Respondent has asserted here and other courts have embraced the idea that the only thing that matters under Bruen is regulation. In other words, you can’t look at all of the other sources of history that usually bear on original meaning.
And I don’t think that that can be squared with this Court’s precedents, starting with Heller, which consulted a – a wide variety of historical sources, the same kind of evidence we’ve come forward with here about English practice, state constitutional precursors, treatises, commentary, state judicial decisions. All of that is relevant evidence about the scope of the Second Amendment right, and I think the Court could make clear that it’s not a regulation-only test.
Second, I think that looking just at regulations themselves, one of the fundamental problems with how courts are applying Bruen is the level of generality at which they’re parsing the historical evidence. Court after court has looked at the government’s examples and picked them apart to say: Well, taking them one by one, there’s a minute – minute difference between how this regulation operated in 1791 or the ensuing decades and how Section 922 provisions operate today. And I think that comes very close to requiring us to have a dead ringer when Bruen itself said that’s not necessary.
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. And so we think that you should make clear the courts should come up a level of generality and not nit-pick the—the historical analogues that we’re offering to that degree.
And, third and finally, I think that in many instances, courts are placing dispositive weight on the absence of regulation in a circumstance where there’s no reason to think that that was due to constitutional concerns.
So, for, example here, we don’t have a regulation disarming domestic abusers. But there is nothing on the other side of the interpretive question in this case to suggest that anyone thought you couldn’t disarm domestic abusers or couldn’t disarm dangerous people. And in that kind of context, I think to suggest that the absence of regulation bears substantially on the meaning of the Second Amendment is to take a wrong turn.
It’s contrary to the situation the Court confronted in Bruen where there was a lot of historical evidence to say states can’t completely prohibit public carry, and against that evidence, you might say that the absence of regulation is significant. But, here, there’s nothing on the other side of this interpretive question, and I think that that just shows that you shouldn’t hold the absence of a direct regulation against us.
There you have it, the state wants to gut Bruen. First, they want the lack of a regulation to indicate that the current regulation is constitutional. This flips the issue on its head. The plaintiff would then have to prove that the lack of regulation was because the people of the founding era knew it was unconstitutional.
Likewise, They are unhappy when the nuanced approach is not accepted, and they have to actually find matching regulations, which don’t exist.
And the big one? They want Second Amendment cases to become expert battles. Instead of courts having to do their jobs, to understand the law (regulations), it will become a “Which expert do I want to pick?”
I intend to read the rest of the transcript later today. Hopefully, I’ll have a more complete write-up on the arguments.