Scholarship Highlight: Rahimi, PLCAA, and Tiers of Scrutiny
The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.
Daniel Harawa argues in a recent essay in the Yale Law Journal Forum that Rahimi “tells us whom the Court believes the Second Amendment is designed to protect and whom it is supposed to protect against.” Harawa examines the decision and frames it as showing “that the Court’s previous invocations of racial justice in its Second Amendment cases were instrumental: now that the Court’s project of refashioning the Second Amendment is largely complete, race and racial justice have fallen from the picture.”
In a new article posted to SSRN, Dru Stevenson argues that the Supreme Court should dismiss Smith & Wesson v. Estados Unidos Mexicano, where the First Circuit allowed claims by the government of Mexico against U.S. gunmakers to proceed under an exception to the immunity shield in the Protection of Lawful Commerce in Arms Act. Stevenson contends that the Supreme Court should wait to get involved until after a trial in the district court because “[t]he case needs to go to trial to allow factual and evidentiary development before the Court can assess the merits properly,” including complex questions surrounding proximate cause.
Finally, my forthcoming article History and Tradition As Heightened Scrutiny is now posted to SSRN. In the piece, I consider the relative strictness of text, history, and tradition as a methodology and argue that the test was originally intended to fall between intermediate and strict scrutiny. I then demonstrate that post-Bruen outcomes suggest a much stricter test than was intended and argue that “[t]he two-step approach including means-end scrutiny that courts applied prior to Bruen serves as a powerful anchor for judicial intuitions about THT, one that is not easily displaced by the mere promulgation of the new test or the Supreme Court’s admonition that means-end tests are a thing of the past.”
Daniel Harawa, Between a Rock and a Gun, Yale Law Journal Forum (November 2024)
Abstract:
The Roberts Court has methodically expanded the scope of Second Amendment rights. But in its first Second Amendment case involving a criminal defendant, United States v. Rahimi, the Court blinked. This Essay examines some of the deeper issues that lurk behind the Court’s seemingly inconsistent treatment of Second Amendment rights and what Rahimi portends for racial justice, gender justice, and criminal-defense lawyering going forward.
Dru Stevenson, Improvidently Granted: Smith & Wesson v. Estados Unidos Mexicanos, South Texas Law Review (forthcoming)
Abstract:
The Government of Mexico sued the American firearms manufacturers for arming the Mexican drug cartels through a distribution chain of straw purchasers and scofflaw gun dealers near the Mexican border. The case, though still at the pretrial motion stage, is now before the Supreme Court, with oral arguments scheduled for February 2025. A federal statute, the Protection of Law Commerce in Arms Act (PLCAA), privileges the gun industry with general tort immunity for gun crimes, with a few delineated exceptions. The Court has agreed to hear the appeal to define two of the terms or parameters for one of those exceptions – proximate causation and “aiding and abetting” crimes via commercial sales. This will be an important test case for PLCAA, as Mexico prevailed at the First Circuit, fending off a dismissal so the case could proceed to trial. This Article, part of a series published together about the case, argues that the Supreme Court should dismiss the appeal as improvidently granted. The case needs to go to trial to allow factual and evidentiary development before the Court can assess the merits properly. To support the argument that the First Circuit was correct to remand the case for trial, the rationale set forth in that opinion receives an in-depth analysis, drawing support from traditional canons of statutory construction and prior Supreme Court precedent that is most applicable to this case. In addition, a section on constitutional avoidance highlights the potential constitutional problems with PLCAA itself, as recognized by a state appellate court in recent years.
Andrew Willinger, History and Tradition As Heightened Scrutiny, Wake Forest Law Review (forthcoming)
Abstract:
The Supreme Court is turning to methodologies privileging text, history, and tradition, or THT, to interpret and implement various constitutional provisions. The Court has recently endorsed historically-focused approaches to determine how the Second Amendment protects the right to keep and carry a firearm, how the First Amendment protects the rights to free speech and freedom of religion, and whether the Due Process Clause protects reproductive autonomy, among other questions.
Much scholarship and popular commentary surrounding THT portrays the methodology as sui generis: presenting unique analytical challenges and impervious to direct comparison to existing doctrinal approaches. However, the jurist most frequently credited with deriving THT for Second Amendment cases, then-Circuit-Judge Brett Kavanaugh, offered a prediction about the test’s relative burden at that time. He wrote that “governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than [] under strict scrutiny.”
The past two years of Second Amendment case law following the Court’s adoption of THT in the 2022 case NYSRPA v. Bruen offer the first opportunity to test the accuracy of this prediction and weigh the strictness of THT against strict scrutiny in specific areas. By comparing pre-Bruen decisions that used or speculated about the application of strict scrutiny to decisions applying THT to the same gun laws, I make two major findings for the Second Amendment and other areas where historically-inflected methodologies are on the rise. First, I show that results on the ground deviate from initial predictions and that courts have drifted by applying a stricter test. Second, I argue that the Court’s decision this past Term in United States v. Rahimi is best understood as attempting to slot THT into its intended place on the means-end-scrutiny spectrum, demonstrating that some early decisions mis-applied the doctrine and suggesting the staying power of tiered scrutiny as a judicial guide across constitutional law.