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.
If a law is ambiguous then you have to look at the intent of the ratifiers.
You need to read about the intent of Madison’s writing the first 8 amendments. It was to succor the anti-federalists who were afraid the new central government would become despotic. Limiting the states in the 2nd amendment would do just the opposite. It would expand the feds’ power to enforce the 2nd Amendment and allow them to regulate gun ownership in the states.
You need to study and learn the original intent of the first 8 amendments as explained in the 9th and 10th amendments.
Didn’t I already say that?
“So what’s the problem?”
I merely pointed put the facts, and passed no judgment one way or the other. Federal law is superior to state and local law when they conflict.
Yeah, well, the counterfeit incorporation doctrine had been tried and found wanting for a lot of reasons, including the Supreme Court decision in the Slaughterhouse Cases a few years after the 14A was ratified.
The Left’s anti-education program seems to have done its work.
I would tie that to an explicit reading of Art 1 Sec 8 for the Fed Congress's Right to enact said law in the first place. If a Federal law grants them a power not authorized by the Constitution, the States have the same rights as "We the People" to tell them to get bent.
The “incorporation doctrine” ran afoul because it allowed for selective incorporation, which created a whole new set of problems. A reasonable review would find that either all of the Constitution would apply, or none of it (in which case the incorporation doctrine could only be seen as a fiction).
Our esteemed legislators have gotten used to passing senatus consultum ultimum to authorize magistrates to break the law, which was one of the main reasons the Roman Republic became a dictatorship. Ironically, it was Cicero who concocted the legal justification for this deprivation of rights under Roman law.
“If a Federal law grants them a power not authorized by the Constitution, the States have the same rights as ‘We the People’ to tell them to get bent.”
I hear what you are saying.
However, the People and the States, through their representatives in Congress (the House for the People, and the Senate for the States), act on behalf of the People and the States, for good or ill. That is a republic. Congress is empowered by the People and the States to enact laws that comport with the Constitution.
Truly there is nothing new under the sun.
You might want to look at the Fourteenth Amendment. I think it mentions "privileges and immunities" of United States citizens. There was a need to address tyranny of some states against recently emancipated people.
Also, the Dred Scott decision very clearly describes that Dred Scott, if declared a free man once he entered a free state, would be entitled to carry a firearm. There was no consideration of whether a state could deny a free man the right to bear arms. State's attempting to disarm their own citizens is a relatively recent development.
That doesn't make it correct.
The clear language of the Second Amendment is a general prohibition of something. There is NO language in it that makes it specific to the Federal government.
Now you can bloviate, and pound that table, and try to hold yourself up as an unquestioned expert if you like, but it just doesn't work.
You need to study and learn
Your assumption that I and others here have not done so is both incorrect and insufferably arrogant.
” “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.”
True. If the woman has a gun she won’t end up dead.
“Gun Rights are NOT A FEDERAL ISSUE. Gun rights are a STATES’ ISSUE!!!”
In McDonald v. Chicago (2010), the Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments.
Gun rights are rights. Period.
I haven't bothered to read the excerpt here, but will be perusing the entirety tonight.
I guess we will have to agree to disagree on this account.
Real simple: if they are “too dangerous” to have a gun, then they are too dangerous to walk the streets, a fact that should be determined in a trial.
The man in this case should have been in jail long before they arrested him for a firearms violation.
Who then protects our inalienable rights, if you say those are not enshrined in the constitution and bill of rights?
The camel’s nose is under the tent.
You’re next.
Infringement; A breaking into; a trespass or encroachment upon; a violation of a law, regulation, contract, or right. Used especially of invasions of the rights secured by patents, copyrights, and trademarks.
Black's Law Dictionary 2nd Edition
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