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SPECULATION INCREASES THAT SCOTUS WILL REVIEW § 922(g)(1) CONSTITUTIONALITY
When the Supreme Court heard arguments earlier this month in United States v. Rahimi on whether 18 USC § 922(g)(8) – which prohibits people under a domestic protection order from having guns – violates the 2nd Amendment, Justice Amy Barrett asked the government, “But you’re trying to save, like, the Range issue. So you’re not applying dangerousness to the crimes?”
The New York Times last week expanded on what it called Justice Barrett’s “cryptic” reference for those not following the gun debate: “She was… referring to… Bryan Range, who has challenged a federal law prohibiting people who have been convicted of felonies from owning guns.” Barrett’s reference provides the clearest indication yet that the Court may review Range v. Atty Gen’l (now known as Garland v. Range), the 3rd Circuit en banc decision holding that the felon-in-possession law is unconstitutional as applied to a guy like Bryan Range, who had an old nonviolent felony conviction on his record.
Bryan is a far more sympathetic figure than domestic violence defendant Zackey Rahimi, accused of threatening women and being involved in 5 shootings in a 2-month stretch. Bryan’s criminal history, on the other hand, consisted of doing 3 years of probation 25 years ago for making a false statement to get food stamps, with only minor traffic violations and a ticket for fishing without a license since then.
A week ago, the Supreme Court considered whether to grant review in Range – which both the government and Bryan Range’s lawyers want – but the Court has not announced any action on the petition. The government asked the Court to wait on Range until it decides Rahimi. Bryan’s lawyers argued that there was no reason for delay and that the Court should consider both cases in its current term, which ends in June.
But would the Supreme Court grant a second 2nd Amendment case this term? Some believe it would. Writing in the Volokh Conspiracy, a blog by constitutional law professors, Josh Blackmon (South Texas College of Law) said, “Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from [New York State Rifle & Pistol Ass’n v. Bruen]. Indeed, the Court may be able to split those cases in a way so as not to water down Bruen. The Court could even vacate-and-remand Rahimi in light of Range.”
Last week, Blackmon argued that “in Rahimi, presumably, a majority of Justices will want to write that the 2nd Amendment rights must be taken away from people merely accused of being dangerous, even if they are not convicted, let alone indicted. I think that opinion will be harder to write than one may think.”
In other news, the 4th Circuit ruled last week that Maryland’s handgun licensing law, which featured a 30-day waiting period, a requirement that the applicant submit fingerprints, and completion of a 4-hour handgun course, was unconstitutional. The Circuit held that Maryland has not met its burden to show a ‘historical analogue’ demonstrating that its law falls within a historically recognized exception to the right to keep and bear arms… and it has offered no other historical evidence to justify its law.”
It appears that pressure on the Supreme Court to rule on § 922(g)(1) felon-in-possession’s constitutionality before next June is increasing because of the complexity of the issues raised in Rahimi.
New York Times, The Supreme Court’s Search for a More Attractive Gun Rights Case (November 20, 2023)
Reason, Rahimi, Meenie, Miney, Mo (November 8, 2023)
New York State Rifle & Pistol Assn. v Bruen, 597 US —, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022)
United States v. Rahimi, Case No. 22-915 (Supreme Court, argued November 7, 2023)
Garland v. Range, Case No 23-374 (Supreme Ct., petition for cert pending)
Md Shall Issue, Inc. v. Moore, Case Nos. 21-2017, 21-2053, 2023 U.S. App. LEXIS 30955 (4th Cir. Nov 21, 2023
– Thomas L. Root