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DOJ SEEKS CERTIORARI ON 5TH CIRCUIT RAHIMI DECISION

You may recall Zack Rahimi, a man who responded to the all-too-common embarrassment of having his credit card declined in the usual way. After being unable to use plastic to pay for his Whataburger Patty Melt (ranked as the chain’s best sandwich, by the way), Zack understandably drew his handgun and opened fire on houses, police cars, and pretty much anything else in front of the muzzle of his pistol. He even shot at bad drivers (something we’ve all had the urge to do from time to time).

At the time, Zack was subject to a civil protection order for having stalked an ex-girlfriend. After the locals got done charging him for felony hangry-ness, the Feds weighed in, charging him with possessing a firearm while being subject to a domestic violence protection order, a violation of 18 USC § 922(g)(8). But in the wake of the Supreme Court’s decision last June in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, the 5th Circuit ruled that prohibiting people from possessing guns because of domestic violence protection orders violates the 2nd Amendment. The Circuit said:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Circuit said. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the 2nd Amendment of the Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen… it is not.

The government has now filed a petition for writ of certiorari with the Supreme Court, and has done so quickly. The government could have sought en banc review, asking the entire 26-judge court to consider the issue. Instead, the government explained in its petition for writ of cert, due to “the significant disruptive consequences of the Fifth Circuit’s decision, the government is filing this petition for a writ of certiorari on a highly expedited schedule — a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion — in order to allow the Court to consider the petition before it recesses for the summer.”

The government argues in its petition that the appellate decision “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals… Although courts interpreting the 2nd Amendment must consider text, history, and tradition, they should not focus on whether the law at issue has ‘a historical twin,’” the government contends “To the contrary, this Court emphasized that ‘even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.’”

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman wonders whether the Supreme Court will be amenable to the government’s request to “take up the case on an expedited basis even before there is a direct circuit split.” He suggests that “expedited” may have a more glacial meeting at the high court: “I suspect the Justices will get back to these Second Amendment matters pretty soon. But ‘pretty soon’ in Supreme Court timelines does not really mean ‘soon’…”

There have been District Court decisions elsewhere that have relied on Bruen to gut § 922(g) limitations on gun possession by people under indictment, possession of guns with obliterated serial numbers, and possession of guns by marijuana users.  In the 3rd Circuit, the appeals court is examining whether the § 922(g) proscription on gun possession by people with felony convictions can survive Bruen.  And on Monday, a U.S. District Court in the Central District of California struck down the state’s Unsafe Handgun Act – which required all handguns sold in the state to have three features which not a single handgun in the world has – as unconstitutional under Bruen.

Perhaps the legal tsunami of attacks on § 922 alone – even absent a circuit split – will force SCOTUS’s hand and bring us another gun decision sooner rather than later.

United States v. Rahimi, Case No. 21-11001, — F.4th —, 2023 U.S. App. LEXIS 5114 (5th Cir., March 2, 2023) (amended opinion)

Petition for Writ of Certiorari, United States v. Rahimi, Case No. 22-915 (Supreme Court, filed March 17, 2023)

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 213 L. Ed. 2d 387  (2022)

The Hill, DOJ asks SCOTUS to review ruling that overturned firearm ban for those with domestic violence restraining orders (March 18, 2023)

Sentencing Law and Policy, With DOJ asking, will SCOTUS quickly take up a post-Bruen case on gun possession by thoe subject to DV orders? (March 20, 2023)

Boland v. Bonta, Case No. SACV 22-01421-CJC (March 20, 2023)

Thomas L. Root