Dangerous and Irresponsible Citizens
The oral argument in United States v. Rahimi clarified the fronts on which future Second Amendment battles will likely take place. Solicitor General Prelogar was a terrifically clear and compelling advocate and she advanced three ways the Court could provide guidance on Bruen’s standard: (1) clarify that all historical evidence shedding light on legislative authority is relevant, not just what historical laws happened to exist, (2) require courts to use a sufficiently high level of generality when reviewing historical regulations so as to avoid mandating historical twins, and (3) underscore that the absence of evidence—historical silence on a question—does not imply any sort of historical understanding that the government lacked power to act. The third principle (and to some extent the first) is what I focus on most in my recent Duke Law Journal piece—as its title, “The Dead Hand of a Silent Past,” suggests. The second clarification is the one front and center in the amicus brief Joseph, Darrell, Eric Ruben, Reva Siegel, and I filed in the case. It is also the focus of Joseph and Eric’s Yale Law Journal piece “Originalism-by-Analogy and Second Amendment Adjudication.” Those clarifications would do much to mitigate the chaos Bruen has caused in the lower courts and the damage that a narrow reading of the decision would do to a significant amount of existing firearms regulation. But in this post, I want to focus on a different aspect of oral argument: what are the historical principles justifying laws disarming certain people?
There has been a lot of debate about what the history supports with respect to prohibitions on gun possession. In oral argument, SG Prelogar advanced two separate and independent principles that she argued arise from the historical record: (1) the “Law-Abiding” Principle, and (2) the “Responsible” Principle. The former, she said, means that the government can disarm individuals who are convicted of “serious offenses.” When pressed, she said the line between serious and non-serious offenses would track the felony-misdemeanor line. (That’s different than the line the 3rd Circuit drew in its pre-Bruen case law on the “seriousness” standard that it used to delimit the permissible scope of the felon prohibitor.) She stated that the Law-Abiding Principle is not the one relevant for deciding this case. Instead, the other historical principle is—the Responsible Principle. She argued that this historical principle means the government can disarm “those whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, with respect to harm to themselves or harm to others.” She equated the Responsible Principle with what has often been called the dangerousness rationale. An individual can be disarmed if he poses a danger with guns, even if he is not culpable for that condition, such as the fact that he is a minor or is suffering from certain kinds of mental illness. And she rejected a principle based on “virtue,” distancing the Responsible Principle from that one.
SG Prelogar suggested that, once those historical principles are abstracted from the historical record, the government need not go back and search for particular analogues to the challenged law. Instead, the argument turns to whether those historical principles actually support the law. And for that, she argued, courts would judge whether the determination that the legislature made is supported by the evidence. She identified several factors that courts should use when judging whether, for example, a legislature’s attempt to tap into the Responsible Principle passes muster. Now quoting from the government’s reply brief: “First, courts may properly review a disqualification’s breadth.” “Second, . . . courts may properly review a legislature’s judgment that a category of persons would pose a danger if armed.” And third, the determination should be made by legislatures, not executive branch officials acting with open-ended discretion. Some of those factors may require courts to assess empirical claims about how dangerous it would be to allow a group access to firearms. As the brief says, “[c]ourts may ask, for example, whether that judgment is supported by evidence, common sense, or the judgments of other American legislatures today or over time.”
The government fought the suggestion that dangerousness was the only principle justifying modern laws (a la Justice Barrett’s Kanter dissent). And while the government’s argument focused just on the two principles above, historians like Saul Cornell have suggested the founding generation may have had other principles that justified restrictions, like the restrictions on Quaker gun access, which doesn’t necessarily fall neatly into either of the government’s buckets. The government may have thought the principles it derived were the most defensible to the current Court and would enable it to defend the other federal laws that have been struck down by lower courts. But I am not quite sure how easy that will be with the way the principles were fleshed out during oral argument. Consider the two cases with pending cert petitions in which lower courts invalidated the laws: Range v. Garland, where the 3rd Circuit said 18 U.S.C. § 922(g)(1) is unconstitutional as applied to someone like Range, who had an old, nonviolent conviction for welfare fraud, and United States v. Daniels, where the 5th Circuit said 18 U.S.C. § 922(g)(3) is unconstitutional for barring active users of illegal drugs from possessing guns as applied to a marijuana user who had not been shown to be under the influence at the time he possessed guns.
Range implicates the Law-Abiding Principle. There, the decades-old conviction at issue is not just for a nonviolent offense—it is for an offense that the state classified as a misdemeanor. The federal law that subjected Range to disarmament is colloquially known as the “felon prohibitor” but it doesn’t speak in those terms. Instead, it applies to a person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” The definitional provisions also make clear that this does not encompass “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” But because Range’s false statement offense carried a potential five-year prison term, it qualified.
In defending Range’s conviction, the government will no doubt argue that the felony/misdemeanor line should be focused on the potential prison term, not just on the legislative label. Indeed, SG Prelogar said at argument that the law-abiding category is “defined by the felony-level punishment that can attach to those crimes” (emphasis added)). That, however, seems a hard line to maintain when one surveys the wide swath of conduct that qualifies, especially given how dramatically potential prison time has increased for offenses since the mid-20th century. Plus, the line between the two categories is itself hard to draw—here’s a post documenting the justices’ struggles over this dividing line in a Fourth Amendment case several years ago. (In writing for the Court in that case, Justice Kagan noted that misdemeanors “vary widely, but they may be (in a word) ‘minor’” and she even underscored that “misdemeanors run the gamut of seriousness.” That view seems to me hard to square with the notion that all misdemeanors with more than two years potential prison time are categorically serious.) I think the government will have its work cut out for it in Range when it tries to defend this line.
Daniels implicates the Responsible Principle. The defendant in the case admitted that he used marijuana multiple times a month. Marijuana is an illegal drug under federal law. That, apparently, would be enough to secure a conviction under § 922(g)(3). As the Fifth Circuit noted, under its case law, “[a]n ‘unlawful user’ is someone who uses illegal drugs regularly and in some temporal proximity to the gun possession.” The statute does not require proof of gun possession or access while under the influence of the controlled substance. The ATF regulations implementing the statute provide that “[a] person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm.” And it may even have been quite a bit of time before gun possession because qualifying “use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.”
In defending this law, the government will likely argue that unlawful drug users are categorically more dangerous with access to firearms than ordinary citizens. Maybe. But it seems like it could be an uphill battle for the government to show that Patrick Daniels’ regular marijuana ingestion makes him appreciably more dangerous than a person who drinks liquor a comparable amount (alcohol is excluded from the list of controlled substances under federal law, and there is no alcohol-based gun prohibition in federal law, so the chronic drinker can keep his gun while the smoker of chronic faces 15 years in prison; this despite the empirical evidence showing the toxic combination of guns and alcohol). In addition, many states have legalized marijuana, making a judgment that marijuana users are not more dangerous than (say) alcohol users. This was a key point in the argument of then-Florida Agriculture Commissioner Nikki Fried’s lawsuit on behalf of medical marijuana users in the state—a case for which the 11th Circuit heard arguments in the appeal just last month, and an issue which has been covered on this blog previously. The 11th Circuit may in fact decide to hold the case pending Rahimi.
Applying the criteria the government itself pointed to in assessing the reasonableness of a legislative determination shows the difficulty the government faces in Daniels. First, the government said courts should assess the breadth of the law. “So, if it’s sweeping broadly or indiscriminately and capturing people we think of as ordinary citizens, that’s going to be a problem.” Section 922(g)(3) seems to capture a lot of ordinary citizens who lawfully use marijuana in their state. (Consider that every gun owner with a medical marijuana card is likely subject to the bar.) Next, the government said courts should review the “justifications and the evidence before the legislature.” Depending on what it can show about specific types of connections, I could see trouble for the government with showing that mere unlawful use, even at a different time from gun possession, creates heightened risk. In oral argument, the government also urged the courts to look for “legislative consensus.” I’m not sure how many state-level disarmament provisions there are for illegal drug use, but the growing state-level consensus in favor of legalizing marijuana at least cuts against this argument, one would think. The same day as the Rahimi arguments, Ohio became the 24th state to legalize recreational marijuana.
One might think that any concerns over particular individuals getting swept up in otherwise permissible categories could be handled through as-applied challenges. But SG Prelogar resisted the suggestion that Second Amendment cases should be open to as-applied claims. “[W]e don’t think,” she said, “that there should be a system of as-applied challenges in this context, because I think that what we know is that Congress is entitled to make categorical judgments, predictive judgments of dangerousness based on history and tradition even in—if there are really edge cases where that predictive judgment wasn’t actually necessary to guard against a danger there.” I’m not sure if that leaves the government in the same boat as the facial challenger, ready to accept or reject the statutory provision in full. The difficulty of implementing a system for as-applied challenges through the court system is no doubt a daunting one. And the experience in district courts in the Third Circuit post-Range is certainly not promising. But I have no doubt the Supreme Court will have to settle that question one way or another very soon—if not in Rahimi, then perhaps in one of these other cases waiting in the wings.
 There was also a fair amount of discussion about whether laws that disarmed disfavored groups, like Native Americans, African Americans, and religious minorities were off the table. Rahimi’s counsel argued they should never be relied on to provide historical principles. I think SG Prelogar said they were not relevant to this case because they dealt with individuals who were not considered members of the political community, but left open the possibility they could be relevant to other laws. In fact, she did at one point say those laws evince “a distinct principle” and at another point that they represent a “separate principle.” If that’s the case, then they might be relevant to, say, challenges to 18 U.S.C. § 922(g)(5), which bars (among others) undocumented immigrants from possessing guns. As I wrote in in this Stanford Law Review Online piece, I think those sordid laws also demonstrate a dangerousness principle.