Prior to the Bruen opinion, the Fifth Circuit Court of Appeals heard the case of United States V. Rahimi.
On June 8, 2022, just a few weeks before the Bruen opinion, the Circuit court affirmed Mr. Rahimi’s convection.
1) Rahimi moved to dismiss the indictment on the ground that section 922(g)(8) on its face violates the Second Amendment and the district court denied the motion. Rahimi appeals this decision but acknowledges that it is foreclosed by our finding precedent. United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), cert. denied, 141 S. Ct. 1397 (2021).
—United States V. Rahimi, No. 21-11001, slip op. at 2 (5th Cir. Jun. 8, 2022)
Briefly, Rahimi was a bad dude, doing bad things. When he was arrested, he had a firearm. He had not been convicted of a crime. Along with all the state level charges brought against him, he was also charged as a prohibited person in possession of a firearm under §922(g)(8) and §924(a)(2).
The Circuit court had already ruled in 2020 on the exact question.
Separately, McGinnis argues his conviction should be vacated because his protective order does not track the requirements of § 922(g)(8). He also asserts the district court abused its discretion by imposing a written special condition of supervised release not orally pronounced at sentencing. We affirm the conviction but remand for the limited purpose of conforming McGinnis’s written judgment to the district court’s oral pronouncement.
—US v. McGinnis, 956 F. 3d 747, 750 (Court of Appeals, 5th Circuit 2020)
Because of this earlier case, Rahimi’s case wasn’t a foregone conclusion.
And then there was Bruen
This is until June 23, 2022. On that day, the Supreme Court issued their opinion on Bruen
July 7, 2022, a couple of weeks after they issued their original opinion, the Fifth Circuit issued another order, withdrawing the original opinion.
—United States v. Rahimi, No. 21-11001 (5th Cir.)
In other words, the Fifth Circuit Court reached out and said, “Oops! SCOTUS says we got it wrong. We are going to correct it ourselves, before it is appealed to the Supreme Court.”
This lead to one of the most epic opinions:
—United States v. Rahimi, 61 F. 4th 443 (5th Cir. 2023)
This opinion was issued on Feb 2, 2023. It was then withdrawn, and a new version published March 2, 2023. The state petitioned for a writ of certiorari on the 17th of March.
Where we are now
Governor Newsom sticks his oar in
But even as the Court revised the Second Amendment analysis to focus on text and history, rather than means-ends balancing, it repeated its prior assurances that this constitutional right “is not unlimited.” Id. at 2128 (quoting Heller, 554 U.S. at 626); see also id. at 2162 (same) (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 626-27 & n.26). In particular, the Court maintained two key limitations.
First, Bruen reiterated that the Second Amendment is concerned primarily with “‘the right of law-abiding, responsible citizens to use arms’ for self-defense.” Id. at 2131 (emphasis added) (quoting Heller, 554 U.S. at 635).
Second, the Court held that for the government to justify a firearms regulation, it need only “identify a well-established and representative historical analogue, not a historical twin.” Id. at 2133 (emphasis in original). “[E]ven if a modern-day regulation is not a dead ringer for historical precursors,” it withstands constitutional scrutiny if it is “relevantly similar” to a historical law. Id. at 2132-33. Thus, the Court emphasized, the “analogical reasoning” Bruen requires is not “a regulatory straightjacket.” Id. at 2133.
—Amicus Curiae at 4,5, Brief for United States v. Zachkey Rahimi, No. 22-915 (U.S.)
Again, we see the infringer’s language and tricks at play. The small quotes, limited context and a reliance on the exception rather than the rule. His entire argument will boil down to “law-abiding” and “responsible”.
“Responsible” is a very subjective measurement. It falls into the same category as “good cause” and “good moral character”. I.e. prove you are worthy of exercising your rights.
As for the “Law-abiding”, that is a very interesting argument to take. Newsom is arguing that a person is not law-abiding before they are convicted of a crime. Yes, Rahimi is a bad person. At the time he was arrested and when he was charged as a prohibited person in possession of a firearm, he had not been convicted of a crime.
In these United States, a person is innocent until proven guilty beyond a shadow of doubt.
Red Flag laws and §922(g)(8) are pre-crime punishments.
The Texas Advocacy Project
—Amicus Curiae, Brief for United States v. Zachkey Rahimi, No. 22-915 (U.S.)
“The shelters will run red with blood if we don’t have a law banning accused abusers from having guns!” We have an excellent example of that logic in play with the case of US v. Rahimi where his wife(?) had a TRO that said he could not have guns. Which is why he had a gun when he was arrested. See how well that TRO worked?
This is the same sort of guilty because we accused him logic,
The Texas court order on which Rahimi’s conviction was predicated found that Rahimi had committed domestic violence and posed a risk of further violence
—id.. The court might have “found” that Rahimi had done what he was accused of doing, but Rahimi had not been convicted of the crime.
Would he have been convicted? Most likely he would have been. That is not the issue. Being accused does not make you guilty.
Ok, read this next one carefully:
—id. at 2,3
If you are reading that quickly, your eye will filter out the citation. You then read
…was a predecessor to the Second Amendment—id. at 3. A true statement. That is immediately followed by
it ignores that the bill of rights was conditional—id. They did not capitalize “bill of rights” because they are referring to the 1689 English bill of rights.
They are explicitly arguing that because the English bill of rights was “conditional” so is the Second Amendment.
We have another example of short quotes.
The “going armed” laws are analogues.—id. at 4. That quote is taken out of context. The context is “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth…”.
The keywords in this are “to the fear of the good citizens”. We see this type of language echoed in other regulations of the founding era. They were all crimes of carrying weapons with the intent of terrorizing people. The closest a modern equivalent might get is the banning of open carrying of scary black rifles.
My wife disappeared with my kids. At first, she was staying with friends. She then claimed abuse and got into a woman’s shelter.
At the hearing, she was asked, in front of the judge, about that abuse. She explained to the Judge that her lawyer told her to claim abuse, so she could get housing at the shelter. Her lawyer denied, and I believe him, giving her that advice.
The judge was not happy with my ex-wife nor with her lawyer.
—id. at 5
This advocacy group falls into that group of people that “believe all women”. Women are humans. They are equal to men at so many levels. Their ability to lie being just one area where they are certainly equal to men.
Here’s a fun one, they are unhappy because:
—id. at 11
They are not wrong. Bruen did turn the rules upside down. If the conduct is within the scope of the plain text of the Second Amendment, that conduct is presumptively protected. The state then has to prove a history and tradition of the type of regulation they are proposing. Did Rahimi want to keep and bear arms? Yes. The right to keep and bear arms is part of the plain text of the Second Amendment? Yes. Therefore, this conduct is presumptively protected by the Second Amendment.
Gun Violence and Domestic Violence Prevention Groups
Umm… I can’t really snark this one. They are asking the Supreme Court to clarify what they mean by “not a regulatory straightjacket”. They are also asking the Supreme Court to acknowledge that “domestic abusers” are special and can be denied rights prior to conviction. And finally
States have taken a variety of measures to address the risks that firearms present in the domestic-violence context, and review is warranted to confirm their validity(Citation omitted)
New York County Lawyers Association
Being New York, they are concerned that Rahimi will affect the “longstanding gun licensing regime” of New York. It could strike down §922(g)(8) and the State’s red flag law (ERPO)
A bunch of infringing states
They are afraid that
The Fifth Circuit’s opinion could call into question amici States’ longstanding and commonsense efforts to protect public safety(citation omitted). Yeah guys, if the Supreme Court agrees that §922(g)(8) is unconstitutional, then your laws are unconstitutional too. Please fold it into an object that is all points and put it where the sun doesn’t shine.
Summary of other Amici Curiae briefs
The gist is the same. They want the Supreme Court to take up this case and vacate the decision of the Fifth Circuit. All of them have some level of emotional blackmail. All of them are worried that their important, commonsense, and “longstanding” laws will be overturned as a result.
Some focus on “law-abiding” while missing the need for conviction before that limitation. All depend on regulations that are not a match, “going armed to the terror of the people” and “surety” regulations.
Of course, there is a smattering of “it isn’t really in common use if the trigger isn’t being pulled as part of a self-defense event.”
This case was first distributed for conference on June 22, 2023. We will be hearing from the Supreme Court shortly with one of three results:
- A denial of Certiorari – The stated doesn’t get a chance to overturn the Fifth Circuit, a win for us.
- A grant of Certiorari – The state might win on §922(g) and still lose on the dicta, this is a win for us with the current Supreme Court make up.
- They don’t do anything. In this case, they will distribute for conference again and again until they decide.
It would have been great if the court had granted certiorari on the 24th. One year and a day since they released their opinion in Bruen. Regardless, this is a good place to be.
This could be the death of most of the Gun Control Act of 1968 as amended.
This could mean we can import interesting firearms that aren’t “for sporting purposes”. It would be the end of the 4473 because there is no legal reason to deny the sale, so no reason to collect any information.