Posted on 11/07/2023 12:24:56 PM PST by Red Badger
Supreme Court justices on Tuesday appeared to side with the Biden administration's appeal of a lower court ruling that struck a federal statute barring people under a domestic violence restraining order from possessing a gun, teeing up a possible narrow ruling over the law in question.
United States v. Rahimi is the high court’s first major Second Amendment case since Justice Clarence Thomas and the Republican-appointed majority ruled 6-3 that firearms regulations must be consistent with the nation's "historical tradition." That case, New York State Rifle & Pistol Association v. Bruen, featured a successful challenge to the Empire State's handgun licensing regime and established a new legal framework for evaluating gun laws.
The U.S. Court of Appeals for the 5th Circuit sided with Texan Zackey Rahimi earlier this year, holding that 18 U.S.C. § 922(g)(8), a federal law blocking anyone subject to domestic violence restraining orders from possessing a gun, violates the Second Amendment right to keep and bear arms. That prompted a strict rebuke from Attorney General Merrick Garland, who appealed the case to the nation's highest court.
"The only difference between a battered woman and a dead woman is the presence of a gun," Justice Department Solicitor General Elizabeth Prelogar told the justices on Tuesday at the start of nearly 100 minutes of arguments.
Chief Justice John Roberts asked Prelogar what test the high court should adopt to quell its concerns about the way the 5th Circuit ruled for Rahimi, who is facing separate charges for disorderly and violent use of a firearm in public, and whether that test should consider a person's risk to society.
“Just to be clear, your argument today is that [the Second Amendment] doesn't apply to people who present the threat of dangerousness, whether you want to characterize them as responsible or irresponsible, whatever the test that you're asking us to adopt turns on dangerousness,” Roberts said.
“Correct. For those who are not responsible citizens," Prelogar replied. “I do want to be clear that we think there are different principles that apply with those who are not law-abiding.”
Thomas asked Prelogar at one point whether it was her argument that "not responsible" and "dangerous" mean the same thing in the context of disarming some citizens.
"This case focuses on the 'not responsible citizens' principle and, in this context, we think that history and tradition show that it applies to those whose possession of firearms would pose an unusual danger beyond the ordinary citizen with respect to harm to themselves or harm to others," Prelogar said.
Several Republican-appointed justices, including Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, and Roberts, appeared reluctant to agree that the 5th Circuit's interpretation of Bruen aligned with their view of what that landmark case means, a point that became clear once public defender J. Matthew Wright, who represents Rahimi, presented his case.
Kavanaugh and Barrett wrote concurring statements in Bruen. In his concurrence, Kavanaugh wrote, “Properly interpreted, the Second Amendment allows a variety of gun regulations,” listing off examples such as the disarmament of the mentally ill, restrictions on qualifications of the commercial sale of guns, and some restrictions on bringing guns into sensitive places such as schools or government buildings.
Some justices seemed skeptical of the arguments in favor of allowing accused domestic abusers to have guns.
Justice Elena Kagan, who joined the minority in the Bruen decision, suggested Wright was “running away from [his] argument … because the implications of your argument are just so untenable that you have to say, ‘No, that's not really my argument.’” That sentiment was compounded when Barrett admitted she was "so confused" over Wright's argument.
Wright said he was departing from the legal test courts had long embraced before Bruen, which balanced the government's interest against the right to carry arms. Instead, Wright said, he was working within the new historic standard the Supreme Court set just one year ago.
The 5th Circuit ruling for Rahimi earlier this year came as lower courts have been grappling with the changes Bruen created for gun regulations. Since then, more than a dozen state and federal laws have been completely or partially invalidated, according to a 2023 study published in the Duke Law Journal.
Meanwhile, gun control and domestic violence advocates have seized on the case as a moment to raise awareness about domestic violence statistics across the nation, pointing to the 54% of domestic homicides that involve a firearm, according to a 2020 study published in the Journal of the American Academy of Psychiatry and the Law.
An eventual opinion could be narrowly tailored to the facts of the case and could simply make clear that the Second Amendment doesn't apply to people who have been placed under a domestic violence restraining order, if the justices rule in favor of the government.
The Supreme Court will also hear two other firearms-related cases this term, although they won't address the Second Amendment in the way that Rahimi does.
One case challenges the federal ban on bump stocks, which are attachments that make semiautomatic rifles fire more rapidly. The case asks whether the Trump-era Bureau of Alcohol, Tobacco, Firearms, and Explosives exceeded its authority when it reclassified bump stocks as “machine guns” under the National Firearms Act, banned the attachments in 2019, and told bump stock owners to destroy them or turn them in to the ATF.
The other case involves the First Amendment and was brought by the National Rifle Association over the group's claims that the former head of New York's Department of Financial Services tried to coerce banks and insurance companies to sever ties with the gun rights organization.
The NRA alleges Maria Vullo, who served as superintendent of the state agency, violated the organization's free speech rights by threatening regulatory retaliation if they did business with the group.
Both cases will be heard early next year, and decisions in all three gun-related cases are due by the end of June.
So the partner of a woman who has been beaten and threatened shouldn’t be disarmed before he/she is convicted?
The First Amendment clearly only enjoins the Congress. "Congress shall pass no law ..."
The Second Amendment clearly has no limits. " ... shall not be infringed".
You can pound the table if you like, but you can't change that broad, unlimited language in the Second Amendment. It clearly applies to all governments under the Constitution ... and that absolutely does include the several States.
The only possible exception, where a government may infringe a specific individual's rights, is found in the 5th and 14th Amendments, where they address "due process of law".
“Once the state is allowed to declare who is dangerous; it is game over.”
Yup. The laws that Garland and his cronies are relying on as historic precedent that “dangerous” people can be denied guns are the anti-Black and anti-Catholic gun laws from the 19th century.
Although they were justified back than as “dangerous people” laws, they were really “unpopular group” laws. Regular Americans are now in the “unpopular group” category and the Ruling Class is the “mean girls” clique. Nothing good can come of this.
I have to disagree with your position on this.
The right to self defense is a GOD GIVEN RIGHT, not given by the Feds, the States, the Counties, the Cities, or any other man or woman.
My GOD GIVEN RIGHT TO SELF DEFENSE can extend, IF I SO CHOOSE to my family, my friends, my state, or my national government, but only if I choose to do so.
Therefore my right to self defense GIVEN BY GOD cannot be abrogated by any government or individual; as a civilized society we have promulgated certain laws and regulations that have been agreed upon by all “law abiding citizens”.
We as a society have agreed that certain CRIMINALS, after CONVICTION of their accused crimes can and shall be deprived of certain rights under our laws and the laws of GOD.
Convicted CRIMINALS have repudiated their responsibilities as citizens in good standing and therefore upon CONVICTION can and should be deprived of certain rights under our CONSTITUTION.
Upon completion of their sentence all rights and privileges should be restored.
That’s why the death penalty and life in prison should be enforced to the utmost, some crimes simply do not allow for the CRIMINAL to re-enter society.
My right to self defense is given by GOD, not man, and no organization, government entity, or person is allowed to deprive me of that right.
The means I choose to employ in my defense of self and or others is at my discretion!
All caps aside, the Fourteenth and Second Amendments would like to have a word with you.
“I am hoping that the Court somehow focuses on the procedural issue side of this case and demands some meaningful judicial review. Something like a very prompt mandatory hearing re the actual facts and history of the alleged abuser.”
That’s the best that could come out of this very dangerous case.
Bad facts make for bad law. Noone on the court wants to say this guy is not violent. But the law they convicted him under is the law that removes guns from people with a domestic violence restraining order, not a law that provides any confidence that he is actually violent or dangerous.
Sorry, but it’s only an allegation until proven in a court of law. The state is not allowed to disenfranchise people of their rights based only on an allegation.
sorry jim w you are correct... i meant that other guy..
mea culpa
t
Wrong. Or... it would read: "Shall not be infringed by Congress." The Committee of Style was very precise in the wording they used.
“The second amendment does not limit the states at all but it directly forbids the feds. That’s it. Gun possession is a STATES’ issue.”
Actually, it probably did when enacted. Unlike the 1st amendment, which applies only to “Congress”, the second amendment is far broader. It speaks to a right that shall not be infringed. It doesn’t limit itself to any particular governing body.
I know the court ran from this obvious interpretation and we had to go through the laborious process of “incorporation” through the 14th amendment. But I don’t think that was actually necessary.
“A battered woman can be dead from alot of things-—NOT always a gun.”
I believe knives and blunt force trauma cause a lot more violent homicides than firearms.
Men who batter women are scum. But a domestic violence restraining order proves absolutely nothing.
Contrary to Leftist distortions, the 14th Amendment was ratified by the states as simply a a post-civil war reconstruction amendment to give ex-slaves full rights and citizenship.
NO WAY the states ratified the 14th Amendment to give the federal government the sweeping powers the Leftist “incorporation doctrine” claims. How do we know that? If there was such an intent by the states toward such a dramatic change to reverse the limited-government intent of the Constitution, there would have been a record of SOME KIND OF DEBATE in Congress prior to ratification. NO such record exists.
The counterfeit incorporation doctrine was also rejected by the Supreme Court in the Slaughterhouse Cases not long after the 14th Amendment was ratified.
No matter. The Delusional Lying Left has marched on since around 1900 to slowly but surely undermine and erode the Constitution making sure the American people have NO EDUCATION about the Constitution as written and originally understood and intended. So far, their plans seemed to have worked.
Technically speaking, Incorporation should not have been a thing. The ratification of the States should have been all the "application" that was required by the Constitution. This is clearly laid out in the Pre-amble to the Bill of Rights.
But, the Courts, because of politics, created the legal fiction of "incorporation" to limit "We the People" from getting too uppety over our Rights.
Well... We agree on that much at least. Kudos.
“But the law they convicted him under is the law that removes guns from people with a domestic violence restraining order, not a law that provides any confidence that he is actually violent or dangerous.”
I hear what you are saying; but the other side of the coin is that a judge (a court) reviewed the application for the restraining order and rendered his or her opinion as to the validity and legality of that application and either denied the application or affirmed it (thus, some will argue, that review and order constituted due process).
You lost me.
The first 10 amendment ONLY PROHIBIT the feds. They simply CONFIRM SOME of our inalienable rights.
Please read and re-read the 9th and 10th Amendments. After that, if you still have questions, then ask me.
So what’s the problem?
You keep saying that. It is demonstrably false. The States themselves ratified the Amendments and enshrined these protections for our Rights in the highest Law of the Land. They did so right after ratifying the Constitution replete with the Supremacy Clause.
Contemporary writings also prove your opinion is in error as the quote from Rawle points out.
The FedGovs powers were to be few and limited. The States were to have local administrative control over other areas, true.
But OUR RIGHTS were to be HANDS OFF. Period.
“Contrary to Leftist distortions, the 14th Amendment was ratified by the states as simply a a post-civil war reconstruction amendment to give ex-slaves full rights and citizenship.”
Yes; it said that former slaves were entitled to the same rights and privileges afforded under the Constitution (the supreme law of the land) as everyone else (except, ironically, women).
“NO WAY the states ratified the 14th Amendment to give the federal government the sweeping powers the Leftist ‘incorporation doctrine’ claims. How do we know that? If there was such an intent by the states toward such a dramatic change to reverse the limited-government intent of the Constitution, there would have been a record of SOME KIND OF DEBATE in Congress prior to ratification. NO such record exists.”
You forget that the 14th Amendment — as well as the 13th Amendment — was passed by the Northern states, which went all-in for Lincoln’s federal supremacy dreams. Remember, the Congress at that time was very much opposed to states’ rights. IMHO it was Lincoln who set the stage for the federal Leviathan that we see today, and Wilson enlarged on that, and FDR went Wilson several steps further.
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