Legal Docket: Staring down the barrel

NICK EICHER, HOST: It’s Monday morning, November 20th and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket. Today we’ll cover the biggest Second Amendment case so far this term: United States versus Rahimi.

This is one of those cases where you may find yourself rooting for the principle and only half-heartedly, if at all, for the plaintiff.

Here are the facts in this case: Zackey Rahimi is the son of an immigrant family from Afghanistan who settled in Texas when he was a child. He’s 23 years old now with a documented history of assault, random shootings, and drug dealing.

In 2020, the mother of Rahimi’s child got a restraining order against him under federal law, 18 USC section 9-22. That meant Rahimi was barred from possessing firearms while it was in effect.

EICHER: But Rahimi paid no heed and kept firing off guns in public. He now sits in jail, awaiting trial on multiple criminal counts.

Note well. He’s accused but not convicted. He’s been found guilty, actually, of nothing. And to take away his guns with no conviction, he argues, violates his Second Amendment right to keep and bear arms.

The Biden administration disagrees. Its lawyer, Elizabeth Prelogar:

ELIZABETH PRELOGAR: Guns and domestic abuse are a deadly combination. As this Court has said, all too often the only difference between a battered woman and a dead woman is the presence of a gun.

She said that’s why section 9-22 targets only the most dangerous domestic abusers, and even then only after a court determines a person is a threat to an intimate partner.

And prohibiting gun ownership, she argued, is rooted in American history. All the way back to the Revolutionary War when Loyalists refused to swear an oath of allegiance to the United States:

PRELOGAR: That principle is firmly grounded in the Second Amendment's history and tradition. Throughout our nation's history, legislatures have disarmed those who have committed serious criminal conduct or whose access to guns poses a danger. For example, Loyalists, rebels, minors, individuals with mental illness, felons, and drug addicts.

EICHER: Rahimi is like those people, she argued. And therefore section 9-22 is consistent with a landmark Second Amendment decision from last year called New York State Rifle and Pistol Association versus Bruen. That decision said when the government seeks to restrict gun rights, any restriction must be rooted in U.S. history and tradition.

REICHARD: But Rahimi argues a mere protective order is too thin of a reed upon which to revoke a constitutional right.

It’s one thing to look at history. But that history also includes later case law that clarifies earlier law. His lawyer, James Wright:

JAMES WRIGHT: Now the danger with any kind of historical inquiry is like the person looking down a well. So it feels like what the government is doing is looking down the dark well of American history and seeing only a reflection of itself in the 20th and 21st Century and saying that's what history shows. When Congress enacted Section 922(g)(8) in 1994, it acted without the benefit of Heller, McDonald, and Bruen, so we shouldn't be surprised that they missed the mark. They made a one-sided proceeding that is short a complete proxy for a total denial of a fundamental and individual constitutional right.

In other words, Congress passed section 9-22 without full information that came from later, clarifying case law.

Both sides got tough questions. Here’s an exchange between Chief Justice John Roberts and lawyer Wright:

CHIEF JUSTICE JOHN ROBERTS: You don’t have any doubt that your client is a dangerous person, do you?

WRIGHT: Your Honor, I would want to know what ‘dangerous person’ means at the moment.

JUSTICE ROBERTS: Well, it means someone who’s shooting, you know, at people. That’s a good start. (laughter)

EICHER: Nobody is saying Rahimi should have a gun, but lawyer Wright reiterated: suspending constitutional rights requires due process, and that’s a good bit more than what’s required to win mere orders of protection.

Justice Ketanji Brown Jackson homed in on what the “history and traditions” test in Bruen really means.

JUSTICE JACKSON: I'm a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts.

Meaning, the history of people considered full citizens during the Founding Era of America. That didn’t include blacks and Native Americans.

Lawyer Wright for Rahimi answered that. He said that those who understood they were bound by the Second Amendment were the ones considered full citizens back then.

Justice Jackson pushed back:

JUSTICE JACKSON: But you seem to be suggesting and this is going back to a question that Justice Kagan asked that what we're looking for is Reconstruction Era sources, I suppose, that applied to the regulation of white Protestant men related to domestic violence. Is that sort of the level that we are focused on when we’re trying to find a history and tradition?

REICHARD: Wright clarified that it’s Founding Era, not Reconstruction Era that is the basis of analysis:

WRIGHT: And -- and -- and it has got to be the people, someone who would have been understood to be part of the people, a rights-holding citizen of the United States.

Prelogar for the government defended section 9-22, pointing to how legislatures have authority to decide when access to firearms will create untenable risk and authority to predict who is law abiding and responsible.

But Chief Justice Roberts wondered just what does “law abiding” and “responsible” mean?

JUSTICE ROBERTS: Responsibility is a very broad concept. I mean, not taking your recycling to the curb on Thursdays. I mean, if you're -- if it's a serious problem, you're -- it's irresponsible. Setting a bad example, you know, by yelling at a basketball game in a particular way. It seems to me that the problem with responsibility is that it's extremely broad, and what -- what seems responsible to some -- irresponsible to some people might seem like, well, that's not a big deal to others.

EICHER: Preloger answered that court precedent has narrowed the concept. Responsibility is tied to the special instances of danger presented by access to firearms.

Overall, things weren’t going well for Rahimi’s lawyer. Listen to Justice Elena Kagan:

JUSTICE KAGAN: You know, 200 some years ago, the problem of domestic violence was conceived very differently. People had a different understanding of the harm. 

I feel like you’re running away from your argument, you know, because the implications of your argument are just so untenable that you have to say no, that's not really my argument.

REICHARD: Prelogar for the government in rebuttal gave it her best:

PRELOGAR: Once the Court corrects the misinterpretation of Bruen, then I think the constitutional principle is clear. You can disarm dangerous persons. And under that principle, Section 922(g)(8) is an easy case. It's an easy case for three reasons. First, it requires an individualized finding of dangerousness.

And a finding of dangerousness in a state court proceeding is enough.

Second, presuming that state protective orders are fundamentally unreliable would prove disruptive for the state courts that are on the front lines trying to protect victims of domestic violence.

PRELOGAR: And the third reason why Section 922(g)(8) should be an easy case is because it does guard against a profound harm. A woman who lives in a house with a domestic abuser is five times more likely to be murdered if he has access to a gun. And it's not just the harms in the home. It extends to the public and to police officers as well. I was struck by the data showing that domestic violence calls are the most dangerous type of call for a police officer to respond to in this country. And for those officers who die in the line of duty, virtually all of them are murdered with handguns.

I counted seven justices who seemed likely to rein in Bruen. Justices Clarence Thomas and Samuel Alito could see a way the law might violate the Constitution, but even their questions seemed to cast doubt on Rahimi’s argument.

There is another gun case on the docket this term. The question there is the legality of a regulation against bump stocks that allow for rapid firing of semi-automatic weapons.

And that’s this week’s Legal Docket!

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