Is There a Silver Lining in Rahimi Ruling?

Townhall Media

I'm guessing that most people, including many gun owners, don't have any objection to the Supreme Court's conclusion that those subject to a domestic violence restraining order can be barred from possessing a firearm. It's how the Court reached its 8-1 decision in Rahimi that concerns many Second Amendment advocates, who fear SCOTUS may have opened the doors to more inane rulings from the federal judiciary. 


The Court reiterated its stance in Bruen that in order to uphold a modern gun regulation, it must comport with the text, history, and tradition of the right to keep and bear arms, but upheld the statute challenged by Zachey Rahimi based on two 18th century laws that, in the mind of Justice Clarence Thomas at least, aren't materially similar. 

Thomas warned that Rahimi will likely be used in the future to curtail the rights of a much larger class of citizens than those who've been the recipient of a domestic violence restraining order, but on today's Bearing Arms' Cam & Co, California Rifle & Pistol Association president (and co-found of the 2A Law Center) Chuck Michel says after closely going over the majority opinion, the five concurrences, and Justice Clarence Thomas's dissent he's not as concerned as he was upon his initial reading. 

There's simply nothing in the past that would justify an entire class of modern firearms that are commonly possessed, like semi-autos. There's no historical law that would indicate you could ban CCW license holders from possessing in almost every public place, which is what the blue states Bloomberg has in his back pocket are trying to do. So I don't think it's going to get the kind of traction that attorneys general in states like California, Illinois, New York, New Jersey, Massachusetts are hoping for.


Michel says the Court's reliance on 18th-century surety and affray laws to uphold the modern prohibition on gun possession for those subject to a domestic violence restraining order will undoubtedly empower anti-gun groups. Going forward, they're almost certain to cite any 18th and 19th-century gun laws they can find to argue in favor of 21st-century restrictions on the right to keep and bear arms. But as Michel says, that's already been happening, just as we've already seen judges uphold modern restrictions based on flimsy analogues. 

One good thing the Court said in Rahimi is that this area of law is under development, so they recognize that they need to take more cases and clarify some things. And that brings us to what didn't happen today, which is that they did not take any of the cases [that are pending]. 

Yeah, as we noted earlier today, the Court has once again kept ahold of a half-dozen challenges to the gun and magazine bans that were imposed by the Protect Illinois Communities Act, as well as six different cases dealing with prohibited persons. That was surprising to me, but Michel says he anticipates the Court will take action in the last conference of the year. Orders from that conference could come as early as Wednesday this week, but depending on when the justices finish releasing opinions from this term it might be next Monday before we learn what the Court's plans are for the dozen lawsuits that have been pending in conference for the past few weeks. 


One theory about why the Court was postponing its decision to grant cert was that they were gonna wait, publish Rahimi, and maybe grant, vacate, and remand those other cases... but they didn't say enough in Rahimi, in my opinion... so why are they waiting? Well, the classic reasons they could be waiting are there's a denial with a dissent, and they're giving the dissenting judge time to write their dissent; or they're going to grant cert; or they're going to deny cert. It's possible they could do a per curiam opinion or a form of GVR saying 'you're wrong', but now we're reading tea leaves. The positive sign is that the Supreme Court justices in their concurring opinions agreed they need to take more cases, so maybe one or more of these will be the cases they take. 

So what about those silver linings I mentioned? Michel says that while the Court upheld the federal law prohibiting those under an active domestic violence restraining order from possessing firearms, the majority opinion took pains to note the "temporary" nature of that deprivation, as well as referring to the fact that Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order. Michel notes that in California and a handful of other states, those subject to a restraining order are prohibited from possessing firearms for years after the order has expired, so the language in Rahimi could help to undo those restrictions.  


The Court also rejected the DOJ's contention that only "responsible" people possess the right to keep and bear arms, which should make it easier to challenge the subjective "good moral character" clauses still in use in some jurisdictions. And as Justice Neil Gorsuch noted in his concurring opinion, the Rahimi decision is narrow, holding only that "when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment."

The case before us does not pose the question whether the challenged statute is always lawfully applied, or whether other statutes might be permissible, but only whether this one has any lawful scope. Nor should future litigants and courts read any more into our decision than that. As this Court has long recognized, what we say in our opinions must “be taken in connection with the case in which those expressions are used,” and may not be “stretch[ed] . . . beyond their context.”

The lower courts are almost certain to disregard Gorsuch's warning, but then, they've been ignoring the Supreme Court's guidance since Heller, so in that sense not much has changed. As Michel says, even the Court itself seems to recognize the need to flesh out its Second Amendment jurisprudence, and the best way to do that is to grant cert to more cases... including those lawsuits challenging bans on commonly-owned firearms and ammunition magazines. 



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