We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
SUPREMES TO REVIEW RAHIMI
Recall that last February, the 5th Circuit held in United States v. Rahimi that the Supreme Court’s June 2022 New York State Rifle & Pistol Ass’n v. Bruen decision meant that 18 USC § 922(g)(8), “a specific statute that prohibits people subject to a domestic violence restraining order from possessing a gun” violated the 2nd Amendment.
Bruen held that when the 2nd Amendment’s plain text covers an individual’s conduct, “the Constitution presumptively protects that conduct.” The government must then prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, the 5th Circuit said, “clearly fundamentally changed our analysis of laws that implicate the 2nd Amendment… rendering our prior precedent obsolete.”
Zackey Rahimi was under a domestic protection order for stalking an ex-girlfriend when he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even squeezing off five rounds into the air when Whataburger declined his credit card.
The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th held that the government had not shown that § 922(g)(8)’s restriction of 2nd Amendment right “fits within our Nation’s historical tradition of firearm regulation… As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the 2nd Amendment.”
The government wasted no time filing a petition asking SCOTUS to grant certiorari, even asking the high court to waive its traditional 14-day period between the filing of a reply brief and deciding whether to grant review. On Friday the last day of the Supreme Court’s term before its four-month break, the Court announced it would review Rahimi.
The petition for certiorari argued that “[g]overnments have long disarmed individuals who pose a threat to the safety of others” and that the law “falls comfortably within that tradition,” and warned that allowing the 5th Circuit’s decision to stand would “threaten[] grave harms for victims of domestic violence.”
Zack urged the high court to deny review, calling the decision a “faithful application of Bruen.” Bruen has only been law for a year, he argued, and the lower courts are “now hard at work applying the new historical framework and re[e]valuating firearm restrictions that were previously upheld” before Bruen. Zack suggested that additional lower courts should interpret federal and state gun laws in light of Bruen before the Supreme Court weighs in.
The case will likely be argued in the fall, with a decision to follow sometime next year, and may well be the signature criminal law case of October Term 2023.
United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. Mar. 2, 2023) (amended decision), certiorari granted (Case No. 22-915), June 30, 2023
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. —, 142 SCt. 2111, 213 Led 2d 387 (2022)
SCOTUSBlog, Justices take up major Second Amendment dispute (June 30, 2023)
– Thomas L. Root