Who Can Have A Gun?

Today, SCOTUS ruled that people under domestic violence restraining orders can be prosecuted if they possess a firearm. The Chief Justice called it a “commonsense” decision. Justice Robert Jackson famously wrote that the Constitution is not a suicide pact. But that has been what the Supreme Court’s Second Amendment jurisprudence amounted to before today, up to and including last week’s decision in the bump stock case, which essentially says that anyone who wants to have a machine gun can have one. Rather than taking time to reflect, I decided to share my hot takes on Rahimi with you in real-time.

U.S. v. Rahimi was decided 8-1. The court ruled that when an individual has been found by a court to pose a credible threat to the safety of another person, the first person’s right to possess firearms can be taken away, at least temporarily. The majority opinion is authored by Chief Justice Roberts. Only Justice Clarence Thomas wrote in dissent. And there was a free-for-all when it came to concurrences—multiple Justices wanted to make their views known, most notably Justice Ketanji Brown Jackson, who took Justice Thomas’s dissent head on. Justice Thomas is an absolutist when it comes to the Second Amendment, he’s the Oprah of firearms. Everyone gets a gun. Thomas believes limits are only acceptable if they were in place at the founding of the country and are rooted in our history and tradition. That’s the standard he got the Court to rally around when it decided Bruen.

In her concurring opinion, Justice Jackson says, “enough!” Women had few if any protections from domestic violence at the founding. Men could not, in the eyes of the law, rape their wives. There was no protection from physical assault by a husband, perpetrated by musket or otherwise. Justice Jackson writes that we are not locked into what the founders did. Justice Thomas’ weak rejoinder was, “not a single historical regulation justifies the statute at issue.” We are likely to see more of this debate about precisely what it means to be an originalist next term.

The new standard that emerged today is that it’s acceptable for Congress to put limits on firearm possession if the person being restrained is a danger to others. That’s a wobbly standard. Does it apply to all people with prior felony convictions? Or does it apply only to violent offenders, but not to bank tellers convicted of larceny? What about other categories of people prohibited from owning a firearm under the statute Mr. Rahimi was prosecuted under? That includes fugitives, addicts, “mental defectives” (the language in the statute, not mine), aliens without legal immigration status, people with dishonorable discharge from the military, and people who have renounced their American citizenship, along with people who have been convicted of misdemeanor domestic violence offenses and people under domestic violence restraining orders.

Our criminal laws are supposed to be definite and provide certainty so people can ascertain what conduct is criminal and what conduct they can lawfully engage in. The Supreme Court has created a hash in this area. The problems stem from a series of bad decisions, starting with Heller. That case extended the Second Amendment protection for well-armed militias to permit individual Americans to possess virtually any kind of firearm that wasn’t fully automatic or short-barreled in their home, under a self-defense rationale. Then came Bruen, the New York case, where the Court struck down what it termed unreasonable limitations by the state on public possession of firearms. The net result of those two cases was to broadly sanction both private and public possession of firearms. The criminal statute at issue here was one of the last firewalls still in place.

After today’s decision, we know it can be used for people under domestic violence restraining orders, but we don’t know more than that. In that sense, this is a lackluster decision. That’s more a complaint about the way the Court has permitted the law to unfold across a series of Second Amendment cases than it is about this one. As Justice Gorsuch correctly notes in his concurrence, “Article III of the Constitution vests in this Court the power to decide only the ‘actual cas[e]’ before us, ‘not abstractions.’” Let’s hope he feels the same way in the presidential immunity case.

My dear colleague, Professor Paul Butler, at Georgetown’s Law Center, pointed out to me that there is tension between criticizing the decision—calling it lackluster—but at the same time praising the Court for using restraint and not exceeding the bounds of the fact situation presented here. He’s absolutely correct. His thought was that while the Court is not going to reverse Heller, this opinion does make us less dangerous and vulnerable. He pointed out that Rahimi frees the courts from Bruen's originalist hell, where we could never have more rights than those that existed at the founding.  The Court could have described the statute Mr. Rahimi was charged under as consistent with gun history and tradition. Instead, they seem to have created a new exception to the Bruen standard that, on a first read (the case is over 100 pages), authorizes Congress to keep guns away from "dangerous people" (whatever that means) or people who might cause physical harm. Rahimi could signal that the Court will gently back away from the precipice created by Heller and Bruen. We will not know for certain until the Court decides the next round of decisions in this area, but I take at least a little heart from Paul’s point. 

Remember July 4, 2022, when the Republican gubernatorial candidate in Illinois said it was time to move on just two hours after the shooting in Highland Park that left six people dead and 24 seriously injured. (He later said that wasn’t what he meant).

That’s where absolutist Second Amendment jurisprudence leaves us, so it’s a positive to see the Court stem the tide, even just a little bit, today. But this decision wasn’t a radical move to protect Americans, it simply permits the status quo to remain in place. Federal prosecutors are free to continue to prosecute at least some people under a statute that has traditionally been used widely to keep guns out of the hands of dangerous people.

At the time of that Illinois shooting, I wrote in the newsletter, “The truth is this: the Founding Fathers would not have wanted the country to live like this. Their muskets weren’t so sacred to them that they would have sacrificed our children to them. They didn’t pass the Second Amendment so parents could get shot in our streets on the 4th of July. The Second Amendment’s well-regulated militia wasn’t supposed to be shooting at us!” I still believe that’s true. Justice Jackson gets it right here.

As the Fifth Circuit noted at the start of its decision in Rahimi, “The question presented…is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.” They went on to reach a conclusion that the Supreme Court reversed today, “In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen…it is not.” Despite the small firewall today’s Supreme Court decision leaves in place, the state of the Second Amendment in this country still leaves Americans in a dangerous, vulnerable place.

You’ll find the decision here.

We’re in this together,

Joyce