UNITED STATES v. RAHIMI is in the news with a Supreme Court ruling a few days ago. And the victim disarmament crowd is all over it.
You see, SCOTUS found that someone never convicted of a crime can still lose his Second Amendment rights via a domestic violent prevention order. Associate Justice Thomas dissented. For very good reasons.
Michigan’s Attorney General is one of the people eyeing this ruling with glee.
Nessel says SCOTUS gun ruling confirms constitutionality of Michigan gun laws
“Michigan’s recently passed ERPO [extreme risk protection order] law was modeled after the federal law at issue in the Rahimi case, and the Supreme Court’s decision today only confirms the constitutionality of our own law.”
Not so fast, statist thug.
Rahimi was charged with unlawful firearm possession under 18 U.S. Code § 922(g)(8). An important part of that is this:
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
That’s a problem with Michigan’s ERPO law (“red flag”). Michigan’s law allows ex parte proceedings in which the accused does not receive “actual notice, and at which such person had an opportunity to participate.”
So, no, RAHIMI does not support your unconstitutional “red flag” law.
A lower court had dismissed the charge against Rahimi, based on the BRUEN test of general, historical legal tradition; the court found no early laws analogous to firearm possession bans via protective order. But — compromised? — Chief Justice Roberts, writing for the majority, claims to have found not one, but two such laws.
By the 1700s and early 1800s, though, two distinct legal regimes had developed that specifically addressed firearms violence: the surety laws and the “going armed” laws. Surety laws were a form of “preventive justice,” 4 W. Blackstone, Commentaries on the Laws of England 251 (10th ed. 1787), which authorized magistrates to require individuals suspected of future misbehavior to post a bond
[…]
Surety laws could be invoked to prevent all forms of violence, including spousal abuse, and also targeted the misuse of firearms.
Can you spot the subtle difference between a surety bond to prevent a person performing an actual violent act, and a protective order that bans possession of a tool regardless of whether it was used?
Dolly-influenced(?) Roberts couldn’t.
His other example law similarly misses the mark.
The “going armed” laws—a particular subset of the ancient common law prohibition on affrays, or fighting in public provided a mechanism for punishing those who had menaced others with firearms. Under these laws, individuals were prohibited from “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.”
The “going armed” laws were specific to threatening and menacing actions using guns (and other weapons), not the simple possession of those implements.
Roberts missed it by this ……………….. […] ………………….. much. I’m not sure how he missed it, since I figured it out two years ago. Yes, I examined historical surety bonds and such in this very light. Maybe the Fifth Circuit read it, even if Roberts didn’t.
Thomas, dissenting, gets it right, as usual.
To trigger §922(g)(8)’s prohibition, a restraining must bear three characteristics. First, the order issues after a hearing where the accused “received actual notice” and had “an opportunity to participate.”
No ex parte proceedings allowed.
Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections.
And Thomas correctly notes that this is a deprivation of rights not triggered by a criminal conviction. Plus…
In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders.
The bans firearm possession, not just threatening or menacing actions. Sometimes it’s like Thomas reads my work as much as I read his. (That’s a joke; I’d be dumbfounded if Thomas knows who I am even if prompted with my name.)
And what does Clarence Thomas think of Roberts’ surety laws argument?
Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendment— possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the “materially different means” of surety laws.
Aha! the outright ban on mere constitutionally protected possession is not analogous, it is a “materially different means.”
Thomas notes that even the prosecution didn’t try to present surety and going armed laws as analagous to 8 U.S. Code § 922(g)(8).
Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification.
The Government couldn’t come up with even one, so Roberts invented one for them.
