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RAHIMI TEEING UP TO BE GUN POLICY DEBATE

United States v. Rahimi, the fast-track Supreme Court review of a 5th Circuit gun case, passed a filing deadline last week with no fewer than 60 separate amicus briefs on both sides of the debate.

In Rahimi, the 5th declared the 18 USC 922(g)(8) prohibition on people with domestic protection orders possessing guns to be unconstitutional under New York State Rifle & Pistol Ass’n v. Bruen.

Dozens of the briefs argue that the Circuit was right. One such example was an amicus filing by the California Public Defenders Association:

The State of California aggressively criminalizes the possession of firearms. We have seen that this disproportionately affects people of color, particularly Black people. Since New York State Rifle & Pistol Association, Inc. v. Bruen, we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment. And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.” We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.

As to the particular statute at issue in this case, 18 USC § 922(g)(8), we acknowledge the need to protect people from domestic violence. Many of our clients are themselves victims of domestic violence. But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.

Rahimi is set for oral argument on November 7, 2023.

The Department of Justice’s sense that Rahimi may be its decisive battle on the Second Amendment was reflected in last week’s filing of a petition for writ of certiorari in Range v. Attorney General. The Solicitor General wrote:

The decision below — which held an Act of Congress unconstitutional, conflicts with decisions of other courts of appeals, and has important practical consequences— would ordinarily warrant this Court’s review. See, e.g., Iancu v. Brunetti, 139 S. Ct. 2294, 2298 (2019) (noting that this Court’s “usual” approach is to grant review “when a lower court has invalidated a federal statute”). But the Court has already granted review in Rahimi to decide the constitutionality of 18 USC § 922(g)(8), the statute that disarms individuals who are subject to domestic-violence protective orders… The Court should therefore hold this petition for a writ of certiorari until it decides Rahimi… This case substantially overlaps with Rahimi. Both cases concern Congress’s authority to prohibit a category of individuals from possessing firearms. In each case, the government argues that the Second Amendment allows Congress to disarm individuals who are not law-abiding, responsible citizens.

This is palpable nonsense. Even if a low-grade conviction 25 years before (Range was convicted of a misdemeanor, but one carrying a maximum sentence of more than a year in prison, thus disqualifying him from having a gun under 922(g)(1)) can bar firearms possession consistent with the 2nd Amendment, Rahimi has little to do with barring someone who is not a “law-abiding, responsible citizen[]” from possessing guns or ammo. For example, in Ohio the testimony of the victim alone is enough to meet the simple “preponderance of the evidence” standard needed for a civil protection order. While a lesser standard such as this makes perfect sense where an order is intended to protect life and safety, to claim that the words on one aggrieved domestic partner establishes that someone is not a “law-abiding, responsible citizen[]” who can be stripped of 2nd Amendment rights demonstrates the weakness of the government’s “take-no-prisoners” approach to gun rights litigation.

In that vein, I note that last week the government also filed a petition for writ of certiorari in United States v. Daniels, a 5th Circuit decision from last August holding that 18 USC 922(g)(3) – which prohibits users of unlawful controlled substances from gun possession – was unconstitutional. Employing the same argument (indeed, the same language) it used in the Range petition, the government asked that Daniels be held pending the outcome of Rahimi.

United States v. Rahimi, Case No. 22-915

Amicus Brief of Alameda County Defenders Assn and California Public Defenders Assn (filed October 3, 2023)

United States v. Range, Case No. 23-374 (Petition for writ of certiorari filed October 5, 2023)

United States v. Daniels, Case No. 23-376 (Petition for writ of certiorari filed October 5, 2023)

– Thomas L. Root