The Court isn’t set to issue an orders list this morning; rather, the final list of the calendar year will come next Monday, December 11.  The major case to watch from a Second Amendment perspective is Range, which was mentioned at the Rahimi oral argument and is clearly on the minds of some justices. 

On November 15, a pro se petition was filed in Nichols v. Newsom—a Second Amendment challenge to various California public carry regulations (including state restrictions on how and when guns can be kept or carried within 1,000 feet of a school and the state’s ban on open carry).  The petitioner also raises a challenge to procedural aspects of the district and appellate court rulings in the case.  In both Nichols and Caulkins (a case dealing with Illinois’ assault weapons and large-capacity magazine ban), the state-respondents have waived their right to respond to the petitions for certiorari.

The response brief in Perez-Gallan, which involves a Second Amendment challenge to the federal domestic-violence restraining order ban on gun possession in 922(g)(8)–the same law at issue in Rahimi–was filed on November 30.  Perez-Gallan urges that, “if the Court’s decision in Rahimi dictates remand to the Fifth Circuit, . . . the Court [should] remand with instructions to consider his as-applied challenge” to 922(g)(8).  That is because, according to Perez-Gallan, his challenge differs from Rahimi in two important ways: (1) “Perez-Gallan was alleged to have been violent solely within his own home, directed his violence solely at his domestic partner, and did not use a firearm as part of that violence”; and (2) “Perez-Gallan was alleged to have possessed a firearm in a different state from his domestic partner and possessed it to protect himself in a dangerous area.”  It seems a near certainty that the Court will hold Perez-Gallan for the time being pending its decision in Rahimi. 

On November 27, a subset of plaintiffs in the ongoing litigation challenging Illinois’ ban on certain semiautomatic firearms and large-capacity magazines (the National Association for Gun Rights, Robert Bevis, and Law Weapons & Supply) filed an emergency application with the Court.  On November 3, the Seventh Circuit upheld Illinois’ law in the first appellate decision on a state assault weapons ban post-Bruen.  The panel majority relied on the circuit’s earlier decision in Friedman, the perceived circularity of the “common use” test, and “the distinction between military and civilian weaponry” to conclude that the banned firearms and magazines are not protected “arms” and that the law is consistent with historical tradition.  Judge Brennan dissented.  The emergency application, which relates only to the Bevis case where the Seventh Circuit affirmed the district court ruling denying a preliminary injunction, asks the Supreme Court to enter an injunction in the first instance “restraining enforcement of the challenged laws pending the disposition of [a] petition for rehearing en banc in the Seventh Circuit and the filing and disposition of any follow-on petition for writ of certiorari.”  Justice Barrett, the circuit justice for the Seventh Circuit, has requested a response from the state that is due on Wednesday, December 6.  The Court summarily dismissed a prior emergency application in the case while the Seventh Circuit decision was pending (we covered that application here).  From the Seventh Circuit docket, it appears that the plaintiffs in each of the consolidated cases challenging the Illinois law recently filed requests for the full circuit to rehear the case en banc.  

Petitions Granted and Pending Argument

Petitions Pending

Petitions Disposed

The amicus briefs filed in support of Rahimi at the Supreme Court include a wide variety of arguments against the constitutionality of the federal domestic violence restraining order ban in 18 U.S.C. § 922(g)(8)—some of which received substantial airtime during the oral argument earlier this month, and some of which did not.  While many amici focus on the Fifth Circuit’s application of Bruen’s historical Second Amendment test, others do not address the Second Amendment at all.  Rather, these briefs emphasize alleged due process and procedural shortcomings or argue that, as a threshold matter, Congress lacks power under the Commerce Clause to regulate individual gun possession.[1] 

The Supreme Court can affirm the Fifth Circuit’s decision on any ground that is supported by the record—longstanding precedent says “that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.”  So, in theory, the Court could say that the Fifth Circuit was wrong on its Second Amendment analysis but still affirm because it finds that 922(g)(8) fails to provide sufficient procedural safeguards before depriving restraining order respondents of their right to keep and bear arms and thus violates the Due Process Clause.[2]  The due process arguments against 922(g)(8) relate primarily to the fact that an individual may become subject to its gun possession ban without a judge ever making an explicit finding that the individual is dangerous, a credible threat to an intimate partner, or has committed family violence. This is because, under subsection (8)(C)(ii), a qualifying order might merely restrain a respondent from harassing an intimate partner and prohibit the use of force.  The order in Rahimi’s case did determine that he engaged in domestic violence and was a threat to his intimate partner.  Therefore, the due process objections would seemingly lead to an outcome where the Court severs the statute and invalidates only part of it, despite the fact that Rahimi mounts a facial challenge to the law.  At oral argument, Justices Thomas and Alito appeared especially focused on due process arguments about 922(g)(8) and predicate family court protective order proceedings. 

In this post, however, I will primarily address the Commerce Clause argument—one that was not discussed at any length during oral argument but which does appear in a number of amicus briefs in the case.  The amicus brief filed by the Firearms Policy Coalition argues that “[t]he Commerce Clause does not authorize Congress to enact criminal laws banning mere possession of arms” and that “[t]he Court has long recognized that family law is likewise traditionally the province of state law.”  Professor Nicholas Johnson’s brief similarly argues that, “[w]hile the sort of arms prohibition at issue here might fairly be grounded on state police powers, it outruns the limited powers of the Federal Government” and that “it requires a stretch of the imagination to picture mere possession as affecting commerce.”  And the brief filed by the Foundation for Moral Law also appears to advocate some form of return to the original understanding of the Commerce Clause—arguing that “the Founders would have never tolerated a restriction on arms by the federal government.”  

As a purely historical matter, these arguments are on relatively solid footing.  The federal government was not involved in regulating individual gun possession outside of the militia context until the early 20^th century, although the line between regulation of militia and individual weapons was blurry in early American history.  As Saul Cornell observes, “government policy in the era of the Second Amendment aimed to encourage Americans to buy weapons they did not desire [but which were most useful for militia service], not discourage them from purchasing guns they did desire [for personal use].”  In any event, members of the Founding generation likely did not envision the kind of extensive federal gun regulation framework explicitly tied to commercial activity that exists today—most federal gun regulation is based on a jurisdictional hook or nexus to interstate commerce, including all status-based prohibitions in Section 922(g) and the last major substantive piece of federal gun legislation, the now defunct federal Assault Weapons Ban of 1994.  Up until 1937 and the “switch in time that saved nine,” the Court consistently rejected “an expansion of the commerce clause that would absorb or imperil the reserved powers of the states.”  But, beginning in the late 1930s, the Court gradually endorsed an interpretation of the Commerce Clause power that is significantly broader than earlier judicial and legislative constructions.  (That’s not to say, however, that a broader interpretation is necessarily inconsistent with original intent or even original public meaning.  Scholars including Jack Balkin have argued that the original meaning of “commerce” was expansive and included all “interaction and exchange between persons or peoples”—likely covering many, if not, all modern-day exercises of the Commerce Clause power even if those applications were not specifically foreseen by the Founders.)

In a pair of major decisions issued in 1942, the Court clarified this new standard.  In United States v. Wrightwood Dairy Co., the Court upheld federal price regulation of milk, explaining that “[t]he commerce power is not confined in its exercise to the regulation of commerce among the states.”  Then, in Wickard v. Filburn, the Court held that,

even if [] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.”

This approach opened the door for all manner of previously unknown federal regulation, including in the areas of labor, the environment, and firearms.  In a 1977 decision in Scarborough v. United States, the Court held that a contrary, narrower construction of the interstate commerce nexus in the federal felon-possession ban would “create serious loopholes in the congressional plan to ‘make it unlawful for a firearm . . . to be in the possession of a convicted felon.’”  United States v. Lopez struck down a provision of the Gun Free School Zones Act in 1995 because “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”  However, Congress amended the law to cover only gun carrying in or affecting commerce (i.e., a gun that has travelled in interstate commerce).  That change was suggested by the Lopez decision itself, and subsequent challenges to the revised law were rejected.  Every federal court of appeals has similarly held that the jurisdictional hook in 922(g) is within the Commerce Clause power (even post-Morrison, a 2000 decision which further narrowed the scope of the power by restricting when and how the impact of intrastate activity on interstate commerce can be aggregated).

Modern Commerce Clause doctrine supports federal regulation in three separate areas: (1) regulation of the channels of interstate commerce (for example, interstate highways and transportation networks), (2) regulation of persons or objects in interstate commerce and the instrumentalities of interstate commerce (including, for example, guns or drugs that have traveled in interstate commerce), and (3) intrastate activities that substantially affect interstate commerce (for example, non-instrumentality crimes like arson or loan-sharking covering activity that is local in nature but has a potentially broader impact on interstate commerce).  The Court’s most recent decisions narrowing the Commerce Clause power (Lopez and Morrison) have dealt with the “substantial effect” category.  But the jurisdictional nexus in Section 922(g) makes it an object or instrumentality case; the prohibitions are not predicated on a finding that gun possession by prohibited persons has a substantial effect on interstate commercial activity.

Why, then, are these Commerce Clause arguments re-emerging now in Rahimi?  For one, some argue that Scarborough was wrongly decided or did not actually endorse an interpretation of the Commerce Clause that allows the federal government to regulate individual gun possession (as in 922(g)) based solely on the fact that the gun in question traveled in interstate commerce at a prior point in time.  These arguments are, I think, quite clearly designed to appeal to Justice Clarence Thomas.  Justice Thomas has long stated that he believes the Court’s post-1937 Commerce Clause jurisprudence is unfounded and un-originalist, and he advocates a return to first principles that appears to be broader than simply repudiating the “substantial effect” category of permissible Commerce Clause regulations.  For example, Justice Thomas’ concurrence in Lopez urged his fellow Justices “to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”  And Justice Thomas has noted his view—in dissenting from denial of certiorari in a 2011 case regarding body armor—that “Scarborough, as the lower courts have read it, cannot be reconciled with Lopez because it reduces the constitutional analysis to the mere identification of a jurisdictional hook.”  Justice Thomas, then, seems squarely among those who believe that a proper construction of the Commerce Clause (either under Lopez and Morrison, or under an even narrower scope consistent with original intent) would invalidate large swathes of federal gun regulation—potentially by requiring some sort of quantitative proof of interstate commercial impact even for instrumentality regulations like Section 922(g).  And the amicus arguments along these lines seem to be directed primarily toward Justice Thomas.

One other reason that I believe the argument is receiving attention in Rahimi is that it potentially provides a doctrinal method for striking down 922(g)(8) while not also implicitly invalidating similar state statutes that restrict gun possession by those subject to domestic violence restraining orders (these state laws vary significantly, and some are broader than 922(g)(8)).  Many amicus briefs filed in support of the government raise the possibility of such state laws being invalidated, and I think it’s generally true that the Fifth Circuit’s historical analysis would result in most similar state restrictions falling (if there’s no analogous historical tradition for 922(g)(8), that likely means no historical tradition for any domestic violence restraining order possession ban).  But as Professor Johnson notes, “[w]hile the sort of arms prohibition at issue here might fairly be grounded on state police powers, it outruns the limited powers of the Federal Government.”  In other words, the federal government cannot ban DVRO respondents from having guns (under the Commerce Clause) but state governments potentially can—separate from whether those state laws might comport with the Second Amendment.  Thus, the idea (I believe) is that the Court should initially decide the threshold Commerce Clause issue by affirming on that basis, and then determine in a separate case whether state DVRO restrictions (which present no Commerce Clause problem) are consistent with the Second Amendment under Bruen.  

Will the current Supreme Court be receptive to Commerce Clause arguments in Rahimi?  I think the answer is likely no, for two main reasons.  First, although Justice Thomas seems to be on board, it is unlikely that any other Justice believes that substantial portions of Section 922(g) are beyond the scope of the Commerce Clause power.  Justice Gorsuch, for example, voted to reject a Commerce Clause challenge to the felon-in-possession law as a circuit judge and otherwise endorsed the Court’s modern Commerce Clause precedents.  While Justices Barrett and Kavanaugh do not appear to have issued major Commerce Clause decisions, there’s no indication they are on board with a major departure from current jurisprudence in this area.  There’s certainly some present-day momentum behind Commerce Clause arguments against federal gun regulation—one need look no further than last year’s dissent from the Fifth Circuit’s denial of rehearing en banc in United States v. Seekins, a felon-in-possession case.  Judge James Ho, joined by two other judges, decried that “[o]ur precedent on felon-in-possession statutes allows the federal government to regulate any item so long as it was manufactured out-of-state—without any regard to when, why, or by whom the item was transported across state lines” and urged his fellow judges to consider a return to the original understanding of the Commerce Clause.  And, in his concurrence to the en banc decision in Range, Third Circuit judge David Porter wrote that “[a] conception of the Second Amendment right that retcons modern commerce power into early American state law is anachronistic and flunks Bruen’s history-and-tradition test, . . . underprotect[ing] the constitutional right to keep and bear arms.” (I discussed Judge Porter’s concurrence in this earlier post.)  But no other Third Circuit judge joined Judge Porter’s concurrence, and it also seems likely that the time has not yet come for this argument to gain real traction at the Supreme Court.  In Seekins, the Court denied a petition for certiorari over no noted dissents (not even by Justice Thomas).

Second, Rahimi likely does not provide the best situation for this argument to succeed.  For one, 922(g)(8) is invoked relatively rarely—per Rahimi’s brief, “[d]uring fiscal years 2018 through 2022, the Government secured sentences for 167 people under § 922(g)(8)—and 19 of those were also convicted under (g)(1).”  Of course, this does not account for the number of background check denials that are  based on qualifying restraining orders—which is significantly higher.  But, in any event, it would be thoroughly strange for the Court to use this case to introduce a broad change in Commerce Clause jurisprudence—one that would have a far greater impact outside of the area of gun regulation.  For example, narrowing the instrumentality category significantly would place into jeopardy numerous different areas of federal law including criminal law outside of firearms, federal environmental regulation, and federal financial and securities regulation (to name just a few).  These changes would each have a significantly greater impact than removing the federal government’s ability to disarm domestic abusers (something that most states already do in some form).  There does not seem to be any basis for adopting a narrower view of commerce instrumentalities in gun cases only, and it would be thoroughly odd—at the least—for the Court to implicitly endorse a major change in this area in a gun case without defining the question presented so as to enable thorough briefing on all potential consequences of such a change.  Moreover, the facts in Rahimi don’t really lend themselves to a Commerce Clause argument.  There seems to be no dispute that Rahimi possessed and used multiple firearms, all of which were manufactured outside of Texas.  By contrast, Seekins—which, according to Judge Ho’s dissent involved “a homeless man (and previously convicted felon) [indicted] for possessing two shotgun shells that he found in a dumpster . . . [with] no record evidence of any commercial transaction of any kind involving the shells”—is a much better set of facts on which to bring a Commerce Clause challenge.

[1] Rahimi’s brief itself devotes two pages to this argument, asserting that “the Court [should] affirm for the alternative reason that Congress has no affirmative power to enact § 922(g)(8).”

[2] It is possible that Rahimi’s recent “proposal to lodge” relates to documents or evidence bearing on the due process argument.

There’s not much activity to report on this week due to the holiday.  The Range petition, which was distributed for consideration at the November 17 conference, appears to still be under review and the Court is not expected to issue an orders list this morning. 

In Daniels (an as-applied challenge to the federal ban on gun possession by unlawful users of controlled substances), the respondent filed his brief in opposition on November 20.  Daniels asks the Court to reject the government’s petition for review, arguing against an approach where history and tradition are consulted in the first instance to determine broader “principles” and then some level of deference is accorded to a modern legislature’s judgment that a category of persons falls within that historically-supported principle—the same argument the Solicitor General urged at the Rahimi argument.  Daniels labels this the  “principle argument,” asserts the approach is contrary to Bruen because it would “create an exception that swallows the rule,” and quotes some of Justice Jackson’s queries during the Rahimi argument.  Other potential analogues, Daniels says, are not relevantly similar because they “disarmed people only while they were actually under the influence of alcohol.”  Daniels appears on track to be distributed for the Court’s final conference of the calendar year on December 8.  

Petitions Granted and Pending Argument

Petitions Pending

Petitions Disposed

The Court released an orders list this morning but there is no order yet in Range, which was considered at last Friday’s conference.  The response in United States v. Daniels – an as-applied Second Amendment challenge to the federal ban on gun possession for unlawful users of controlled substances by a regular marijuana user – is due today. 

On November 9, a petition was filed in Caulkins v. Pritzker.  The case is a wide-ranging challenge to Illinois’ recently-enacted assault weapons and high capacity magazine ban, the Protect Illinois Communities Act or PICA.  The plaintiffs (a group of gunowners and businesses in Illinois) bring due process, equal protection, and Second Amendment claims.  In August, the Illinois Supreme Court reversed, in a 4-3 decision, a state circuit court decision striking down the law on equal protection grounds related to the law’s exemptions for certain groups such as current and former law enforcement officers and grandfathered owners of prohibited weapons and accessories.  The plaintiffs raised a Second Amendment challenge for the first time on appeal to the Supreme Court, which found the argument waived.  The dissenting supreme court justices focused primarily on legislative procedural irregularities.

The plaintiffs now seek certiorari, arguing primarily that certain state supreme court justices should have recused themselves from the case.  They also appear to raise Second Amendment-related and equal protection claims, arguing that the banned semiautomatic weapons are in common use and that “[a]ny historic tradition based on restricting possession by the dangerous, the infirm or persons who pose a danger to others is not measured by the date one procured the firearm to equate the prohibited with the dangerous.”  There seems to be a real question about whether the Second Amendment arguments are waived for failure to raise them at the trial court level.   The Seventh Circuit also recently released its decision in a pure Second Amendment challenge to PICA, upholding the law in Bevis v. Naperville primarily by relying on pre-Bruen circuit precedent.  While there is a strong possibility that the challengers in Bevis seek en banc review first, when compared to Caulkins, Bevis seems by far the more likely case to ultimately find its way onto the Supreme Court’s docket.

Petitions Granted and Pending Argument

Petitions Pending

Petitions Disposed

Much of post-Bruen Second Amendment litigation has focused on the federal status-based prohibitions contained in 18 U.S.C. § 922.  Jake Charles, for example, has found that more than 40% of federal court Second Amendment challenges in the one year following the Bruen decision were to the federal felon-in-possession law, 922(g)(1), and that more than 60% of federal court cases related to one of Section 922’s status-based disqualifications.[1]  While these challenges have mostly been unsuccessful, in some major decisions courts have struck down federal status-based prohibitions under Bruen that were widely held to be constitutional under the prior legal test. 

The Supreme Court recently heard oral argument in Rahimi, which deals with the DVRO ban in 922(g)(8), and challenges to 922(g)(1) (the felon possession ban), 922(g)(3) (the unlawful drug user ban), and 922(n) (the felony indictment receipt ban) may follow soon on the Court’s docket.  However, I am not aware of a post-Bruen case examining the constitutionality of 922(g)(6)—which prohibits any individual “who has been discharged from the Armed Forces under dishonorable conditions” from possessing a gun.[2]  This post will briefly survey the (scant) pre-Bruen case law on this provision and offer some thoughts about the application of Bruen’s historical test in this context.

Prior to Bruen, in a 2018 decision, a unanimous panel of the Second Circuit Court of Appeals applied intermediate scrutiny and upheld the law (after assuming, without deciding, that dishonorable discharged veterans are within “the people” the Second Amendment protects).  Jimenez involved an individual who had been dishonorably discharged from the Marines after a court-martial conviction and military prison sentence for conspiring to sell firearms and other military equipment in the civilian market and using controlled substances.  The government appears to have argued in that case that, because Jimenez was convicted of and ultimately discharged for committing a felony-equivalent offense in military court, he could be disarmed for the same reasons that felons may be disarmed generally.  The panel agreed, noting that the dishonorable-discharge ban was included in the Gun Control Act along with the felon-in-possession law and that “[d]ishonorable discharges are generally reserved for members of the military who have been convicted [by court-martial] of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring severe punishment.”  The court also observed that those who “receive extensive training on how to use deadly weapons [as part of military service] are likely to be more dangerous with firearms should they be thoughtless or heartless enough to turn them onto civilians” and held that the different procedural context of a military court martial[3] did not prevent such convictions from serving as the basis for future disarmament.

It’s worth noting that Jimenez was a facial challenge, which the district court emphasized in upholding the law:

[Jimenez] asserts that a “dishonorable discharge is categorically different from a conviction for a felony” because a person can be dishonorably discharged for offenses such as insubordinate conduct, malingering, adultery, bigamy, making disloyal statements, being absent without leave, disobeying a superior officer, wrongful cohabitation and improper fraternization. These arguments do not save Defendant’s motion, as Defendant’s own circumstances illustrate a constitutional application of § 922(g)(6) and therefore undermine his facial challenge. The argument concerning the application of the statute to others discharged for lesser offenses is precisely the type of argument that can succeed only in as-applied challenges, and not in facial ones.

Thus, Jimenez stands only for the proposition that the law was facially valid under the Second Amendment applying the old two-part test; the Second Circuit panel did not suggest any view on whether a court martial and dishonorable discharge for disobeying a superior officer, for example, would similarly be a constitutional basis for lifetime disarmament.[4]

The Jimenez panel specifically invoked Lee Harvey Oswald, who served in the Marines, was trained as a sniper, was discharged after multiple court martials, and later assassinated President John F. Kennedy with a sniper rifle.  Congressional testimony preceding the Gun Control Act of 1968 also focused heavily on Oswald, as well as Sirhan Sirhan (who assassinated Senator Robert F. Kennedy), and James Earl Ray (who assassinated Martin Luther King, Jr.).  Notably, of the three, only Ray had a prior criminal conviction in a civilian court at the time of the assassination.  Alabama representative James Buchanan noted that Oswald and Sirhan were nevertheless “not typical, lawabiding citizens . . . [but] outsiders and malcontents who reviled and even hated the country in which they lived”—and evidence of Congressional intent to cast the net beyond criminal convictions is quite strong.  Senator George Murphy observed that “Oswald’s record shows he was discharged from the Marine Corps under highly questionable circumstances, which clearly sets him apart from that great body of fine, and I think representative, young Americans.”  It’s unclear whether Oswald’s initial hardship discharge (shortly after two separate court-martial proceedings, one for possessing an unregistered private firearm and one for using “provoking words” to a superior officer) would have been sufficient on its own to disqualify him from possessing a firearm under 922(g)(6),  had the GCA been in effect at the time.  The Jimenez panel noted in dicta that even less serious “dismissal” or “bad conduct” separations from the armed forces likely implicate 922(g)(6) but did not mention hardship specifically.  Oswald’s discharge, however, was later changed to “undesirable” when Oswald renounced his American citizenship after defecting to the Soviet Union in 1959—renouncing citizenship would have independently disqualified Oswald from possessing a gun under 922(g)(7).  In any event, it’s easy today to lose sight of the fact that Congress was driven by a discrete group of tragic events in enacting the GCA and that dangerous behavior short of a felony conviction was thus a major consideration.

While dishonorable discharges are relatively rare, consistently accounting for merely 0.1% of total military discharges since the Vietnam War era according to one study, 922(g)(6) remains something of a live issue.[5]  For example, Bowe Bergdahl was initially given a dishonorable discharge for deserting his base in Afghanistan and surrendering to Taliban forces in 2009 before ultimately being returned in a prisoner exchange in 2014.  That determination was recently vacated by a federal court due to apparent improprieties in the underlying court-martial proceedings.  If Bergdahl’s discharge status is ultimately reinstated, he would be barred under 922(g)(6) from possessing a firearm (and potentially for that reason alone, as he does not appear to have any other disqualifying status).  Interesting legal questions also remain.  For one, Jimenez was surprisingly reticent to proclaim the provision constitutional in all applications and seemed to leave open serious questions about the application of 922(g)(6)’s ban to someone dishonorably discharged for a non-felony-equivalent offense[6] (even under the old two-part test).  Second, Bruen changes things drastically and likely makes any effort to rely solely on felon disarmament—as the government did in Jimenez—much more of an uphill battle.  Courts are increasingly reluctant to find that the felon ban itself is constitutional in all applications, despite Heller’s endorsement, and post-Bruen decisions generally reject efforts to analogize other status-based bans to the felon prohibitor.

How might 922(g)(6) fare under Bruen’s test?  As with most aspects of federal gun regulation, the modern military discharge system is itself a relatively recent innovation.  The Servicemen’s Readjustment Act of 1944 (commonly known as the “G.I. Bill”) established the current system of tiered discharged statuses—including dishonorable discharge—and specified which benefits veterans were eligible for based in part on discharge status.  But, as scholars have observed, “[t]he basic framework for the American military’s separation of servicemembers and characterization of their service dates back to the founding era.”  Richard Bednar notes that “[p]unitive separation was recognized as a form of punishment for officers as early as the American Articles of War of 1775.”  And soldiers who were dishonorably discharged under the Founding Era framework generally had been court-martialed and “lost certain military benefits such as travel pay and retained pay” as a result.  There was likely not any systematic disarmament of those punitively separated from the military during the Founding Era, although there certainly was a Founding Era tradition of disarming those “disaffected to the cause of America”—including those who refused to take loyalty oaths during the Revolutionary War. 

At least one amicus brief in Rahimi addressed 922(g)(6) in passing, arguing that, “to the extent that law [(g)(6)] authorizes disarmament without any finding of present dangerousness, it is no more justified by the historical evidence compiled in this case than Section 922(g)(8) itself.”  I believe that framing is probably the wrong way to approach the question.  As Representative Buchanan said during the GCA debates, part of the objective was to ensure that “outsiders and malcontents who reviled and even hated the country in which they lived”—such as Oswald, and perhaps Sirhan and Ray—did not have access to firearms.  That wasn’t a novel idea; indeed, Buchanan could just as well have been describing a 1777 Loyalist as a 1959 Soviet defector.  It’s not immediately clear to me how a Second Amendment challenge to (g)(6) would play out today and there are issues with relying on historical laws we would never embrace in the modern era, at least not without significant revisions.  But I think the correct historical framing for 922(g)(6) is one focused on loyalty and civic responsibility, not dangerousness. 

[1] Which, for purposes of this post, include all prohibitions in 922(g) and the federal ban on receiving new firearms while under felony indictment in 922(n).

[2] The same is true, to my knowledge, of 922(g)(2) (covering fugitives from justice) and 922(g)(7) (covering those who have renounced their American citizenship).

[3] As the Supreme Court explained in a 2018 decision, the military justice “system begins with the court-martial itself, an officer-led tribunal convened to determine guilt or innocence and levy appropriate punishment,” and the outcome of that proceeding can be appealed in a military appellate system culminating at the United States Court of Appeals for the Armed Forces.  Only a conviction in a general court-martial of certain especially serious offenses would automatically result in a dishonorable discharge.

[4] A dishonorably discharged individual may also lose the right to vote, at least in certain states.

[5] There is a tragic link between military service and subsequent mental health problems, and former, active duty, or reserve military personnel (although not necessarily with dishonorable or even less than honorable discharges) have committed a number of high-profile shootings.  In addition to Oswald, the 1966 University of Texas shooter was a Marine veteran, in 2009 an Army psychiatrist murdered 13 people at Fort Hood in Texas, and the suspected Lewiston, Maine shooter is an Army reservist.

[6] In addition to criminalizing offenses that are also felonies in the civilian world, the Uniform Code of Military Justice includes “military misconduct offenses that have a referent offense in medieval chivalric codes or Roman military practices (e.g., mutiny, desertion, cowardice).”

The transcript of the Rahimi oral argument is now available here.  Notably, in an exchange with the Solicitor General, Justice Barrett referenced the Range case by name–suggesting that the issue presented there would be “saved” for future consideration rather than resolved in Rahimi.  The government’s petition for review in Range is distributed for the Court’s November 17 conference.

Hardin and Guedes will remain on the tracker for now, but the cases are all but certain to be held pending the decision in Cargill where the Court granted certiorari.  The three cases all implicate the question of whether ATF’s bump stock ban was a permissible exercise of agency authority. 

Petitions Granted and Pending Argument

Petitions Pending

Petitions Disposed

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.[1] 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.

[1] 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.

The Supreme Court heard oral argument yesterday morning in United States v. Rahimi, a Second Amendment challenge to the federal ban on gun possession for those subject to certain state-issued domestic violence restraining orders.  The oral argument audio is available here, and the transcript can be accessed here.  We previously covered the Fifth Circuit’s decision in the case striking down the federal prohibition here and here. 

We’ll have analysis of the argument on the blog in the coming weeks and months leading up to an expected decision next year. 

As has been discussed on the blog in recent months, many questions about Bruen’s application and scope remain unanswered. United States v. Rahimi represents the first opportunity for the Supreme Court to clarify the details of how Bruen’s test should be applied and to begin sorting out the disparate outcomes that have already emerged at the district and appellate levels in post-Bruen Second Amendment cases. As the Supreme Court prepares to hear oral argument tomorrow, November 7, the Justices have been busy with a lot of reading.

A total of 60 amicus briefs were filed in the case: 37 in support of the government, 22 in support of Zackey Rahimi, and 1 in support of neither party. Among the cases set for argument in October and November, these 60 briefs make Rahimi the clear leader in terms of amici involvement. Still, both Heller and Bruen saw more amicus briefs filed (68 and 84, respectively), so it seems safe to say that Second Amendment cases tend to attract many “friend of the Court” briefs. Other high-profile cases before the Court this term have seen around the same number of filed amicus briefs. For example, in Loper Bright Enterprises v. Raimondo—where the Court could decide whether to overrule the Chevron framework for administrative deference—62 amicus briefs were filed between July and September (the Court will hear oral argument in Loper Bright in January). 

Very few amici (only 4) ask the Court to overrule Bruen, leaving the vast majority of the briefs to work within Bruen’s history-focused framework. Accordingly, briefs on all sides of the issue devote a great deal of attention to historical tradition. Generally speaking, briefs in support of the government suggest that there are historical analogues for § 922(g)(8), while briefs for Rahimi suggest that no such analogues exist (consistent with the Fifth Circuit’s decision). However, many amici also address a specific piece of dicta in Bruen suggesting that “unprecedented societal concerns” may trigger a “nuanced approach.” Among the 37 briefs in favor of the government, 8 argue that the issue of domestic violence is an “unprecedented concern” that triggers this “nuanced approach.”

Beyond the historical tradition arguments, many amici extensively address a different issue: due process. 35 briefs touch on due process in some way—briefs in support of the government tend to emphasize that protective orders only qualify for § 922(g)(8)’s firearm prohibition when issued after notice and a hearing; briefs in support of Rahimi focus on alleged shortcomings such as the fact that § 922(g)(8) covers orders issued without a credible-threat finding and without resolution of disputed facts. Domestic violence restraining orders are creatures of state law, and unsurprisingly vary greatly with regard to standards of proof, procedural protections, and length of orders. Accordingly, 24 amicus briefs discuss the details of state DVRO laws or Rahimi’s potential impact on state DVRO-based disarmament statutes.

While not as frequently addressed in the amicus briefing, arguments surrounding the Commerce Clause are also worth keeping an eye on. Only 6 amicus briefs mention the Commerce Clause, 4 of which were filed in support of Rahimi. The law under which Rahimi was convicted, § 922(g)(8), relies on a jurisdictional hook—a mechanism used by Congress to ensure compliance with the Commerce Clause—requiring that the gun or ammunition possessed by the defendant was transported in or affected interstate commerce. The argument that this jurisdictional hook is insufficient for the federal government to regulate under the Commerce Clause is unlikely to win the day, but some justices (notably Justice Thomas) have indicated a strong desire to narrow the scope of the federal Commerce Clause power in a way that might significantly curtail § 922(g) as whole.

As one might expect with such a high volume of briefs, there was ample variation. Notably, some of these briefs touched on issues such as reproductive rights, tribal gun law, and interesting intersections between religion and firearms. Other amici focused extensively on one particular issue in the case, including Congress’s enumerated powers, DVRO laws across the country, and telling the stories of victims of gun violence at the hands of individuals who exhibited patterns of domestic violence.

Finally, the Duke Center for Firearms Law was widely cited throughout the amicus briefing. There were 42 citations to scholarship authored by Center leadership and affiliated scholars.  The Center’s Second Thoughts Blog was also cited 5 times.

[This post previously ran as a guest post on the Balkanization blog here.]

Since 1994, persons subjected by courts to qualifying domestic violence restraining orders have been prohibited from possessing a firearm under 18 U.S.C. § 922 (g)(8). In United States v. Rahimi, the Fifth Circuit declared that prohibition unconstitutional under the Second Amendment.

On November 7, the Supreme Court will hear argument in Rahimi. The case provides an occasion for the Justices to clarify the kinds of public safety laws the Second Amendment permits under its recent decision in New York State Rifle & Pistol Association v. Bruen. Will the Roberts Court read the Second Amendment to forbid government from enacting a targeted weapons regulation responding to the well-established link between guns and domestic violence? Today, “[n]early half of all women murdered in the United States are killed by a current or former intimate partner, and more than half of these intimate partner homicides are by firearm. Women are five times more likely to be murdered by an abusive partner when the abuser has access to a gun.”

Rahimi has rightly drawn attention because of the domestic violence stakes and because of the questions the case raises about the historical-analogical method that now governs Second Amendment cases. The lower federal courts have struck down an increasing number of gun laws since Bruen, interpreting it along the lines of the Fifth Circuit’s decision striking down the domestic violence prohibitor in Rahimi.

We show that the domestic violence prohibitor is constitutional under Bruen’s historical test, and explain how the Fifth Circuit and other federal courts are manipulating levels of generality in applying the test so that it can be used to strike down nearly any modern gun law. Rahimi therefore provides a critical occasion for the Court to uphold the domestic violence prohibitor and to reject the asymmetric application of Bruen’s analogical framework that the Fifth Circuit employed in justifying the law’s invalidation.

Both District of Columbia v. Heller and Bruen authorize modern forms of gun regulation. As we demonstrate in prior work, Part III of Justice Scalia’s majority opinion in Heller affirms a common law tradition that has long authorized laws protecting the public against weapons threats. Bruen specifically contemplates change in forms of regulation over time; it directs judges to use history as a guide to determine the kinds of regulation that are “consistent with this Nation’s historical tradition of firearm regulation.”  Bruen does not require gun laws to repeat the past like some kind of grotesque Groundhog Day.

But—ironically enough, on Groundhog Day of last year—the Fifth Circuit struck down 922(g)(8). The law was adopted in 1994 as society came to better recognize women as equal rightsholders. As a critical mass of women entered politics, they demanded that government address the role that guns play in intimate partner violence—in enabling an abusive partner or ex-partner to coerce, threaten, and terrorize and to inflict injury and death, in events that sometimes explode beyond the original target to include multiple victims and even trigger mass shootings.

To justify invalidating 922(g)(8), the Fifth Circuit’s decision in Rahimi employs an approach we have called selective and asymmetric updating. That approach interprets the Second Amendment to protect weapons like AR-15s that did not exist at the Founding, while insisting that government can only regulate the use of such weapons if it enacts laws that closely resemble legislation enacted in the ratification era. The Fifth Circuit invokes Bruen’s history and tradition method to perpetuate, under Second Amendment cover, a tradition of gun violence between intimates that the nation enacted 922(g)(8) to repudiate. Is this tradition of weapons threats and violence a tradition that the Supreme Court is now prepared to entrench and honor in the Second Amendment’s name? 

The Court’s decisions in Heller and Bruen authorize change, consistent with historical tradition, in regulation as well as rights. As Chief Justice Roberts put it at oral argument in Heller, “[W]e are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.”

 Bruen suggests that application of its historical-analogical test depends on whether the modern law being challenged addresses a “societal problem” that the Framers might similarly have addressed but choose not to—or whether instead the problem the law addresses is novel, involving “unprecedented societal concerns or dramatic technological changes” unforeseen by the Framers. In the latter case, the burden on the government to show historical analogues is lessened. We show that under either of these paths, the government should prevail in Rahimi, but in doing so we also spotlight how Bruen’s test can be manipulated: judges can require regulation closely to resemble laws of the distant past even as they define the scope of the right expansively to protect weapons whose lethality the framers could not have fathomed.

So what “societal problem” does the domestic violence prohibitor address?

By its terms, 922(g)(8) specifically addresses possession of a “firearm or ammunition” by individuals subject to qualifying domestic violence restraining orders. It does not address domestic violence in any other context. So characterized, 922(g)(8) addresses a societal problem that the Constitution’s ratifiers did not experience.

Domestic violence by gun was not a significant societal problem when the Second Amendment was adopted. In the Founding era, “[f]amily and household homicides—most of which were caused by abuse or simple assaults that got out of control—were committed almost exclusively with weapons that were close at hand,” not loaded guns but rather “whips, sticks, hoes, shovels, axes, knives, feet, or fists.” A drunken, angry, or homicidal abuser would’ve been far less likely to load and fire an unwieldy black powder musket.

It is therefore unsurprising that Founding era legislatures did not adopt laws specifically disarming domestic abusers—their guns were not the problem. Simply put: One important reason that the framers did not regulate the use of guns in domestic violence was that guns did not play a significant role in violence between intimates until much later.

Some advocates, scholars, and judges have framed the relevant societal problem more broadly—as domestic violence full stop, or even interpersonal violence. Rahimi’s brief and others emphasize that Americans at the time of ratification did respond to such violence, but did not enact laws specifically permitting judicial orders disarming those who threatened domestic abuse. The common law instead provided a battered woman, her relatives, and her community various alternative forms of deterrence and protection: homicide law, divorce law, and, as Laura Edwards has shown, peace warrants and sureties. There was, in other words, an “historical tradition” of responding to domestic violence, even if that tradition did not provide women equal protection of the laws. 

In Rahimi the Fifth Circuit points to these earlier forms of regulation as grounds for striking down 922(g)(8) because none of the identified historical antecedents was sufficiently like 922(g)(8) in barring gun possession. In doing so, the court engineers a mismatch by describing the problem and solution at different levels of generality. If the social problem is defined broadly, then the search for regulatory antecedents must be similarly capacious—including not just gun-specific responses, but other modes of constraining domestic violence. Rahimi’s own reading of the historical record then identifies the necessary analogues, including sureties. But the court dismisses them on the grounds that they do not similarly burden the right to bear arms. This is a distinction without a difference if firearms were not prominent instruments of domestic violence at that time.

As we have shown, either of the two “societal problem” frames supports the constitutionality of 922(g)(8). If we characterize the societal problem to which 922(g)(8) responds as domestic violence by gun, the problem to which 922(g)(8) responds has not persisted since the Founding.  In a case of this kind, Bruen calls for a “more nuanced approach” to analogical reasoning where gun regulation responds to “unprecedented societal concerns or dramatic technological changes.” Rahimi involves both forms of change Bruen mentions. The nation employed different types of law to regulate domestic violence as it responded to technological change affecting the instruments of domestic violence and as it responded to an evolving understanding of women’s roles.

If, in the alternative, we start where Rahimi does and find that domestic violence is a persistent societal problem that the Founding generation faced, we should define as historical analogues all legal responses to domestic violence that the common law afforded to deter and remedy the problem.

From this vantage point, we can see that Rahimi manipulates levels of generality to create a one-way ratchet for gun rights that is not mandated by Bruen. The opinion shows how deciding cases on the basis of obscure historical sources does not constrain judicial discretion, as many originalists claim, but instead can conceal expression of a judge’s personal preferences. (Judge Cory Wilson, author of the Rahimi opinion, made clear in an NRA questionnaire—filed as part of a run for office in Mississippi—that he opposes most gun regulation, including universal background checks.)

What the Supreme Court in Rahimi must rule out is this mix-and-match approach by which judges describe societal problems broadly so that they seem continuous with modern life, but then restrict the search for regulatory antecedents narrowly, recognizing as antecedents only laws that closely resemble modern regulations. On this selective appeal to the past, the Second Amendment protects the right of a person subject to a domestic violence restraining order to his AR-15, while at the same time prohibiting government efforts to disarm that person unless the intervention resembles common law interventions at a time when domestic violence by gun was not a leading cause of women’s death.

Our caution that asymmetric updating and manipulation of levels of generality enables judges to enforce—and mask—their values in deciding Second Amendment cases has added force in challenges to the domestic violence prohibitor. If gun-libertarians prevail in Rahimi, they will perpetuate traditions of exclusion and inequality in new form. Rahimi and especially its precursor  United States v. Perez-Gallan exemplify preservation through transformation. Judges invoke feminist accounts of laws’ discriminatory under-protection of women in intimate relations as reason to strike down a law protecting women from violence in intimate relations. The old is all dressed up as new. These decisions illustrate exactly why observers object that the Court’s turn to history and tradition provides cover for entrenching inequality.

Reasoning from history, as Bruen requires, does not mean repeating it. Recognizing traditions that deserve perpetuation unavoidably demands normative judgment.  Indeed, much of what judges, lawyers, and citizens do in arguing from history is to draw cautionary lessons—that is what the Court itself does in Heller and Bruen as it expands the right to keep and bear arms in part as a response to historical disarmament of disfavored groups. But concern about perpetuating inequality must evenhandedly apply to the regulation side of the inquiry as well, or else, once again, it will be the interpreters’ own values—their interest in expanding gun rights, and not concerns about history, equality, or fidelity to the Court’s cases—that is driving the outcome.  

In a previous post, I explored the Supreme Court’s doctrine concerning facial constitutional challenges and its bearing on the Rahimi case. This post further unpacks how the arguments apply to the arguments made by Rahimi and his amici and the potential for exceptions to the Salerno standard in Second Amendment law.   

In the Supreme Court, Rahimi argues that 922(g)(8) is facially invalid. Absent an overbreadth doctrine, he presumably must show that there are “no set of circumstances” in which the statute can be constitutionally applied. His brief does not discuss—or even cite—Salerno. (Neither, to be fair, does the government’s.) Rahimi does argue that “[t]he words of the statute cannot ‘bear a construction rendering it free from constitutional defects,” quoting from a pre-Salerno case, Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964), suggesting his belief that 922(g)(8) indeed has no constitutional applications. And many of his arguments for facial invalidity do not depend on the context in which the statute is applied.^[1]

But some of Rahimi’s arguments do suggest that it is the other subsection of the law under review, 922(g)(8)(C)(ii), that renders the statute especially problematic. Recall that (C)(ii) permits restraining orders to qualify that only forbid using physical force but do not contain an express finding of dangerousness. But, again, the order at issue in this case satisfies (C)(i) because it contains the express dangerousness finding that Rahimi posed a credible threat to the safety of the protective order applicant. In the course of arguing for facial invalidity, for instance, Rahimi argues that the statute is not as narrow as the government suggests, pointing to subsection (C)(ii): “it reaches orders with no finding of threat or violence, including orders where the movant admitted the respondent had never been violent.” “In fact,” the brief continues, “§ 922(g)(8)(C)(ii) is broad enough to reach preliminary orders that ‘in uncontested boilerplate’ forbid the parties from abusing each other during run-of-the-mill divorce proceedings.” It even raises examples of other possible applications of that statute that are problematic, noting that the government has prosecuted “prohibited persons who briefly possess someone else’s gun in self-defense” and that courts “routinely reject self-defense, defense-of-others, and necessity defenses.”

None of that, however, is not what happened in the proceedings that made Rahimi subject to 922(g)(8).

Similarly, in the scholars’ amicus brief ostensibly filed on behalf of Rahimi, the authors concede that “there is ample original meaning precedent for limiting an individual’s arms rights based on a judicial finding that the person poses a danger to others.” That finding need not come in a criminal proceeding, they acknowledge. The finding in (C)(i) of a credible threat during a protection order hearing is sufficient. Only (C)(ii) is problematic. Thus, they argue that “[t]he problem could be solved by changing a single word between §922(g)(8)(C)(i) and (ii): ‘or’ to ‘and.’ Making (C)(i) and (C)(ii) conjunctive instead of disjunctive would remedy the infringement in (C)(ii).” The amicus brief clearly conceded that “[b]ecause (C)(i) requires a judicial finding of dangerousness, it does not infringe the Second Amendment.” If that’s the case, then shouldn’t Rahimi lose? The scholars’ brief seems like it would have more appropriately fit as a brief in support of the government—or at most in support of either party. It doesn’t seem to justify reversal of an order based on §922(g)(8)(C)(i).

This discussion raises two important questions for Rahimi and Second Amendment law. First, is there—or should there be—a Second Amendment overbreadth doctrine? And second, assuming there is, should the Court in Rahimi invalidate 922(g)(8) as substantially overbroad? Although a full treatment would require much more than a short blog post, on first blush it seems to me that the answer to both questions should be “no.”

First, overbreadth doctrine is rare—and rarely expressly validated by the Court outside the First Amendment context. It protects against possible chilling of protected conducted. But there’s hardly a concern that individuals will be “chilled” in their exercise of gun rights in the same way they might be chilled from speech. Several courts of appeals have in fact rejected an overbreadth doctrine in the Second Amendment context. Plus, as Justice Thomas has underscored, there might well be institutional concerns about the ability of judges to assess the proportion and value of unconstitutional versus constitutional applications of a statute dealing with firearms. Limiting Second Amendment challenges to those whose particular conduct itself cannot be criminalized does not seem an onerous limit. After all, that is how litigation has proceeded against the federal felon-in-possession prohibition under 18 U.S.C. § 922(g)(1). Not a single court has held the statute facially unconstitutional. (I am not aware of any scholars who have argued that it is, either.) But several courts, like the Third Circuit in Range v. Attorney General, have held that the statute is unconstitutional as-applied to particular challengers. To the extent 922(g)(8) does have any infirmity in the breadth of (C)(ii), the Court could address that in a case in which that provision was actually applied.

Second, even assuming there were a Second Amendment overbreadth doctrine, it is hard to see how Rahimi has carried his burden to show that the overbreadth is “substantially disproportionate to the statute’s lawful sweep.” If (C)(i) is constitutionally permissible (a concession Rahimi does not make, but his legal scholar amici do), then even if there were a Second Amendment overbreadth doctrine, the task would turn to assessing the proportion of (C)(i) applications as compared to (C)(ii) applications. I am not aware of studies about the underlying protective orders giving rise to 922(g)(8) prosecutions, but United States v. Hansen does teach that a fanciful “string of hypotheticals” does not suffice. Hansen faulted the challenger for failing “to identify a single prosecution for ostensibly protected expression in the 70 years” that the relevant provision and its precursors were in effect. If there are a wide variety of constitutional applications and few invalid ones, the ratio does not support facial relief. “Hansen asks us to throw out too much of the good based on a speculative shot at the bad.  This is not the stuff of overbreadth—as-applied challenges can take it from here.” It seems to me that the same is true for 922(g)(8). If there are unconstitutional applications of the law, those can be handled in the normal manner of case-by-case adjudication. But Rahimi, as to whom the statute can be constitutionally applied, cannot secure facial invalidation of the law—at least not without himself demonstrating that a substantial proportion of applications of the statute are under (C)(ii) alone.

The Supreme Court’s decision might not turn on these complexities. The Court could decide—consistent with Rahimi’s primary argument—that there is simply no analogous historical tradition of disarming individuals after proceedings like those sanctioned in 922(g)(8). That would likely require facial invalidation of the law. Or it could decide that the law is valid in full. But, if the Court is concerned about some applications of the statute—and particularly the applications raised in the amicus brief filed in support of Rahimi by some Second Amendment scholars—then it should leave open the possibility of an as-applied challenge in that context. But that is not what happened in this case. Here, the order found that Rahimi presented a credible threat to an intimate partner. That should be enough to dispose of the case. To quote Hansen, “as-applied challenges can take it from here.”

[1] Rahimi argues that “five features” together “conspire” to render the statute facially unconstitutional:

First, the law is a total ban on possession of any type of firearm or ammunition, even in the home. Second, the ban is enforced with severe criminal penalties of up to ten or fifteen years in federal prison. Third, the ban applies to United States citizens who retain all their political and civic rights. Fourth, the ban is not triggered by conviction of an infamous crime; it arises automatically and unavoidably from a civil state-court order, often after a one-sided proceeding, regardless of whether the order itself addresses firearms. Fifth, § 922(g)(8) is a federal, nationwide ban. Whatever the founding generation believed about state and local legislatures’ power to restrict firearm ownership, they would have resisted a federal law purporting to say which citizens could, and which citizens could not, keep firearms.

It is a bit hard to tease out the importance of these individual features. The severity of the penalty itself, for instance, does not seem germane to whether the law facially violates the Second Amendment. So too the fact this is a federal law and not a state one. The other features may be relevant to the facial invalidity of the statute, but the brief does not make these connections express.

There seems to me an unexplained oddity in the Supreme Court’s upcoming case of United States v. Rahimi. The case focuses on the facial validity of 18 U.S.C. § 922(g)(8), which bars gun possession for individuals subject to certain kinds of domestic violence restraining orders. But, as applied to Zackey Rahimi, the statute should be valid. This initial post will consider the nature of the challenge in Rahimi and provide background on the Supreme Court’s approach to facial constitutional challenges (including its seminal 1987 decision in United States v. Salerno) and overbreadth.  In part two, which will run on the blog in the coming days, I’ll consider how this case law applies to Rahimi.

In this case, the Fifth Circuit vacated Rahimi’s conviction for violating the statute. The panel opinion invalidates the law on its face as lacking analogous historical support. Under the statute, an otherwise qualifying domestic violence restraining order can invoke the federal prohibition if it either: (C)(i) “includes a finding that such person represents a credible threat to the physical safety of [an] intimate partner or child,” or (C)(ii) “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.” The order against Rahimi did both. Some arguments in the case and some amicus briefs filed in the case, however, concern how an order that only satisfies (C)(ii) might be constitutionally problematic. One amicus brief on behalf of several Second Amendment scholars, for example, argues that the statute is unconstitutional because subsection (C)(ii) does not by its terms require a finding of dangerousness. But because Rahimi’s order did include a credible threat finding under (C)(i), these sorts of arguments raise questions about the viability of a facial challenge when the regulation would survive as applied to the challenger.

The Court’s 1987 Salerno decision holds a number of lessons for thinking about both Rahimi and Second Amendment doctrine more broadly. The case formally concerned whether two defendants could bring a facial constitutional challenge to the Bail Reform Act’s allowance for pretrial detention after a finding of dangerousness. Its lessons include both how notions of dangerousness interact with constitutional rights and—more pertinently for this post—how facial constitutional challenges should be decided. On the first point, the Salerno Court’s repeated references to the government’s compelling interests, to the paramount goals of public safety, and to the explicit conclusion that social welfare can outweigh individual interests, stand in stark contrast to the libertarian, rights-as-trumps framing of Second Amendment rights in Heller and Bruen. So too is Salerno helpful for thinking about the kinds of restrictions that can be placed on the exercise of someone’s rights because they are found to be dangerous after an evidentiary hearing that’s not a full criminal trial and prior to any criminal conviction. But in this post, I want to focus on Salerno’s statement of the standard for facial challenges, what has become known as the “no set of circumstances” test. Under that demanding standard, as some scholars have underscored, “the government need only produce an example in which the statute could be applied constitutionally to defeat the facial challenge.”

In an opinion written by Chief Justice Rehnquist and joined by five other justices, including Justice Scalia, the Salerno Court set out the standard for facial challenges. The facts in Salerno help shed light on Rahimi’s challenge—and the arguments made on his behalf. There, two leaders in the Genovese crime family, Salerno (the boss) and Cafaro (a captain), were charged with a number of federal crimes, including fraud, extortion, and RICO violations. Under the newly enacted Bail Reform Act, the government sought to detain Salerno and Cafaro pending trial. The Act provided that “[i]f, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.” That hearing provided for an arrestee’s right to counsel, right to present evidence and testimony, and right to cross-examine government witnesses. It required the court to find by clear and convincing evidence, in writing, that no bail conditions could “reasonably assure the safety of other persons and the community” before ordering detention.

In support of its effort to secure pretrial detention, the government introduced evidence during the detention hearing that the two men “had participated in wide-ranging conspiracies to aid their illegitimate enterprises through violent means.” The trial court agreed with the government and ordered the men detained. They “appealed, contending that, to the extent that the Bail Reform Act permits pretrial detention on the ground that the arrestee is likely to commit future crimes, it is unconstitutional on its face.” After a Second Circuit panel agreed, the Supreme Court granted review.

At the Supreme Court, Salerno and Cafaro raised Fifth Amendment due process arguments and Eighth Amendment excessive bail challenges to the Act’s provision “permitting pretrial detention on the basis of future dangerousness.” They argued that the Act was facially unconstitutional. The Court began its discussion by underscoring that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” (Emphasis added). Proof of some invalid applications is not enough. “The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”

As for the Fifth Amendment argument, the Court first rejected the argument that pretrial detention violated substantive due process by imposing punishment before trial. The Act, said the Court, did not impose punishment but was instead permissibly regulatory. Legislators acted because they “perceived pretrial detention as a potential solution to a pressing societal problem.” And, as to that, the Court emphasized, “[t]here is no doubt that preventing danger to the community is a legitimate regulatory goal.” The provisions were not excessive in relation to that goal, given all of the procedural safeguards during the detention hearing. “We have repeatedly held,” stated the Court, “that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.” (Pausing briefly here, this passage highlights explicit interest-balancing in a constitutional context—in an opinion authored by arch-conservative Chief Justice Rehnquist and joined by Heller’s author, Justice Scalia.) The Court pointed to emergencies such as wartime as one example, but also noted that “[e]ven outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons,” and then proceeded to point to a variety of civil proceedings in which this preventative detention can occur.

The Court underlined the procedural protections in the statute and the narrow range of suspected perpetrators to which it applied. It was a narrow statute aimed at a narrow class of individuals whom Congress considered especially dangerous. The Court, however, did not dismiss the weighty interest of the individual in his own liberty. “We do not minimize the importance and fundamental nature of this right. But, as our cases hold, this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” (Emphasis added.) (It’s difficult again not to stop and reflect on the wildly different rhetoric here from that used in the Supreme Court’s Second Amendment cases. In Heller, Justice Scalia chided Justice Breyer for invoking an interest-balancing approach similar to the one Scalia signed onto in Salerno, saying, “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).

Because the Act provided sufficient procedural protections and applied narrowly, the Court would not invalidate Congress’s judgment that certain people needed to be detained. “We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government—a concern for the safety and indeed the lives of its citizens—on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment.”

A number of commentators have criticized the standard Salerno set forth—both as a descriptive statement of how the Court analyzes facial challenges and as a normative prescription for how constitutional rights should be adjudicated. Mike Dorf, for example, argues that Salerno’s test “neither accurately reflects the Court’s practice with respect to facial challenges, nor is it consistent with a wide array of legal principles.”  (Others, like Alex Kreit, take more direct aim at the dichotomy between as-applied and facial challenges itself, arguing that it is “an inherently flawed and fundamentally incoherent undertaking.” After all, as Nicholas Rosenkranz notes, “in the last thirty years alone, hundreds of pages of scholarship have tried to make sense of this issue.”) In discussing Salerno, Dorf notes that the rule implies a sort of irrebuttable presumption that a statute’s invalid applications can be severed from its valid ones, but he emphasizes that the question of severability is often more nuanced than that. And sometimes, he argues, the Court rejects wholesale the notion that a law’s invalid applications can be severed. That is true not only in the First Amendment context that Salerno itself acknowledges, but also, Dorf argues, in some equal protection and other fundamental rights cases. It reflects there a concern with a substantially overbroad statute (meaning one with a large number of unconstitutional applications, at least as compared to constitutional ones) chilling protected conduct.

Regardless of what commentators have said, the Supreme Court has still, even recently, relied on the distinction between facial and as-applied challenges and often said Salerno’s test applies in cases outside the First Amendment context. Just last term, in United States v. Hansen, the Court emphasized the difficulty of facial challenges and the exceptional nature of an overbreadth challenge. That case concerned Hansen’s prosecution for encouraging/inducing foreign nationals to reside in the U.S. in violation of the law. He promoted a scam of “adult adoption” that did not exist, but in defense to the prosecution he argued that the statue was invalid as overbroad under the First Amendment. In her opinion for the Court’s majority, Justice Barrett wrote,

An overbreadth challenge is unusual.  For one thing, litigants typically lack standing to assert the constitutional rights of third parties.  See, e.g., Powers v. Ohio, 499 U. S. 400, 410 (1991).  For another, litigants mounting a facial challenge to a statute normally “must establish that no set of circumstances exists under which the [statute] would be valid.”  United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added).  Breaking from both of these rules, the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.

She underscored the overbreadth doctrine’s break from the standard rules as justified by concerns about chilling protected expression. But, even in that context, “a law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep. In the absence of a lopsided ratio, courts must handle unconstitutional applications as they usually do—case-by-case.” (Citation omitted).

Notably, Justice Thomas concurred in Hansen to reprise his argument that there should be no First Amendment overbreadth doctrine. The doctrine resembles the rejected proposals for a council of revision in 1789, he argued, and “contemplates that courts can declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner.” It distorts the judicial role, he said, and, by requiring courts to judge the proportion of constitutional versus unconstitutional applications, “is nothing short of a society-wide policy determination of the sort that legislatures perform.” For Justice Thomas, it seems, there should only be as-applied challenges.

Salerno and the facial constitutional standard may interact in complex ways with Rahimi. Depending on how the Court confronts the question, it may not be relevant at all. In the next post, I’ll consider questions about Rahimi and facial challenges, Second Amendment overbreadth, and the possibility of as-applied challenges under 18 U.S.C. § 922(g)(8).

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

On November 7, 2023, the Supreme Court will hear argument in United States v. Rahimi, addressing the Second Amendment constitutionality of 18 U.S.C. § 922(g)(8) — the federal firearm ban that covers persons subject to disqualifying protection orders. Andrew’s August 30 post discussed whether the hearing underlying the protection order at issue in Rahimi met the statutory definition of a “hearing” as construed by Fifth Circuit precedent. Based on my experience as an Assistant United States Attorney and as the National Domestic Violence Coordinator for the U.S. Attorney community, and on practice and case law, this issue is, in fact, more well-settled than the post suggests.  (I am also currently a consultant for the Battered Women’s Justice Project.) 

Section 922(g)(8), among other things, requires that the predicate protection order be issued “after a hearing of which such person received actual notice, and at which such person had an opportunity to participate….” It remains undisputed that Rahimi appeared in a Tarrant County, Texas courtroom on February 5, 2020 after receiving actual notice of a protection order hearing being sought by his intimate partner and mother of his child. Despite the availability of Judge Beth Poulos, Rahimi did not request an evidentiary hearing and instead agreed to the entry of a two-year protection order that not only prohibited him from possessing firearms, but also found that he posed a credible threat of family violence and explicitly prohibited him from committing further family violence. These facts, when evaluated under governing case law, establish that the requirements of 922(g)(8) were met.

The facts underlying issuance of each protection order are critical. If, like Rahimi, the defendant appears (which will be the result of “actual notice”) and agrees to an order – without availing himself of the opportunity for a hearing – Section 922(g)(8)(A) is satisfied. No other court facing the facts at issue in Rahimi has held otherwise. For example, the Ninth Circuit held that “the statute does not require that evidence actually have been offered or witnesses called.”   The Fifth, Seventh, and Eighth Circuits, as well as a number of district courts, have similarly held that the opportunity to respond to a proposed order constitutes a “hearing” and that there is no requirement that the respondent dispute the underlying facts or present evidence. As one district court recently noted, the “opportunity” only requires a “proceeding during which a defendant could have objected to the entry of the order or otherwise engaged with the court as to the merits of the restraining order.” 

Indeed, to hold otherwise would create an absurd incentive as Andrew’s prior post notes. As the Fifth Circuit observed in Banks, “a defendant with all the protections that the statute contemplates could simply consent to an agreed order to escape a later federal prosecution.” This conclusion that, as a matter of settled law, Rahimi’s agreed upon order satisfies 922(g)(8)(A) also comports with common sense. Otherwise, a defendant would be able to sidestep the proscriptions of (g)(8) either by consenting to an agreed-upon order (as Rahimi did) or by failing to appear at all. This would be inconsistent with the intent or reach of 922(g)(8) to disarm persons found by a court to present a credible threat to the physical safety of an intimate partner.

The merits brief submitted by Rahimi attempts to deflect from this settled law by arguing that the protection order disqualifying language is essentially boilerplate, encompassing a broad range of family violence that would not be indicative of present or future harm. This attempt is misguided. The fact that courts, like Tarrant County District Court, now incorporate the predicate language of (g)(8) does not diminish the purpose of the language to capture those who pose a present or future danger. The Court was free – as it did  – to cross out language that was inapplicable and to tailor the order to address the specific needs identified by the victim.

Rahimi also challenges the reliability of a respondent’s agreement to a protection order by alleging that (1) respondents are coerced into agreed-upon orders to avoid imposition of attorney’s fees, and (2) the “statute provides no way to distinguish between orders motivated by fear, mutual combat, or tactical advantage.” These general points, left unsubstantiated, are irrelevant in Rahimi’s case. The order against Rahimi and the facts underlying the order demonstrate that he had notice and an opportunity to be heard and that his alleged conduct more than demonstrated his dangerousness.  Even if most orders are agreed upon, this does not demonstrate coercion or any other adverse conclusion. Rahimi was alleged to have committed brutal family violence and he chose to avoid a hearing. This speaks more to the strength of the case against him than to the coercive nature of the proceedings.  It certainly does not demonstrate a facial infirmity under a Second Amendment challenge.

The Supreme Court will hear oral argument in United States v. Rahimi, its first post-Bruen Second Amendment case, on November 7.  This post will consider an issue raised in the respondent’s merits brief filed with the Supreme Court on September 27: whether and when necessity is a defense to a charge of possessing a firearm while under a qualifying domestic violence restraining order.  Rahimi’s brief argues that any necessity exception to 922(g)(8), and to other federal status-based firearm prohibitions in Section 922(g), is largely meaningless in practice because

[t]he Government even prosecutes prohibited persons who briefly possess someone else’s gun in self-defense.  Courts routinely reject self-defense, defense-of-others, and necessity defenses, and they exclude evidence that a prohibited person had a credible fear of imminent violence because it is “irrelevant” and “would only inspire jury nullification.”

This is an important piece of the respondent’s argument, as the brief repeatedly emphasizes the broad scope of 922(g)(8).  For this proposition, Rahimi relies on a recent Fifth Circuit decision dealing with the felon prohibitor.  In that case, United States v. Penn, a convicted felon was involved in a violent confrontation, his aunt handed him a gun, and he exchanged fire before being stopped by a police officer.  The defendant then ran from the police, escaped, and discarded the gun; he was arrested one month later and charged with possessing a firearm as a convicted felon (among other offenses).  The defendant argued that he was entitled to a justification, or necessity, defense to the felon-in-possession charge because he needed the gun to defend himself.

The district court refused to instruct the jury on a necessity defense because “Penn failed to present sufficient evidence that he possessed the gun no longer than absolutely necessary,” and the Fifth Circuit affirmed.  The Fifth Circuit placed particular emphasis on the fact that Penn “passed up several chances to give up the gun[,] . . . chose not to pull over and explain the situation to [the pursuing officer, and] . . . also chose not to leave the gun at the scene of the wreck [but rather] threw it into a field where it would be harder for police to find.”  The panel noted that a justification or necessity defense to a felon in possession charge is construed “very narrowly” and that the defense is only available in the “rarest of occasions”—for example:

• When a bartender who was a convicted felon was stabbed and fought back by grabbing a pistol, shooting his assailant, and then immediately returning the pistol to its location underneath the bar;
• When the defendant disarmed an attacker who harassed him and punched his stepson, ran away with the gun, and then explained the situation to officers as soon as they arrived; and
• When the defendant disarmed his girlfriend’s son, who had a history of violent conduct and was threatening to kill someone, and immediately placed the gun inside a couch;

In addition to possessing the gun in response to a real necessity and with no readily available alternative, courts require that a prohibited possessor not continue to possess a firearm after the emergency has subsided or attempt to hide their conduct from law enforcement.  In other words, “the defendant [must] get rid of the firearm as soon as a safe opportunity arises.”

Of course, 922(g)(8) does not impose any limitation on an individual’s ability to defend himself with a weapon other than a firearm.  As Eric Ruben has described, survey data on weapons possessed for self-defense cast substantial doubt on Heller’s assertion that handguns are the weapon most commonly chosen by Americans to defend themselves.  Data indicate that many Americans prefer to (and do) carry weapons such as mace, pepper spray, and knives rather than guns—and 922(g)(8) places no restriction on a DVRO respondent’s ability to possess and carry such weapons and use them in self-defense when reasonably necessary.

The framing of the Penn decision in Rahimi’s brief is quite broad in other ways.  For one, the key issue in Penn was not whether the defendant there was justified in using a firearm to protect himself from imminent harm in the abstract—rather, the question was whether the defendant maintained possession of the gun for too long after any necessity had subsided and failed to come clean to the officers in pursuit.  The Fifth Circuit appeared to assume that the gun was discharged in a proper exercise of self-defense, but found that evidence of “a credible fear of imminent violence” was irrelevant only because another necessary element of the defense (giving up the gun as soon as practicable) was not present.  Second, the rule that a necessity defense is only available when the defendant ceases any lawful conduct as soon as the necessity dissipates and it is safe to do so is not unique to gun regulation.  For example, the Supreme Court has affirmed the rejection of a duress defense to prison escape based on unsafe prison conditions when the defendants failed to introduce “evidence that they attempted to surrender or engaged in equivalent conduct once they had freed themselves from the conditions they described.”  The Court specifically held that a defendant seeking to invoke such a defense “must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.” 

It may be especially important to construe the necessity defense narrowly in the context of an individual subject to a domestic violence restraining order.  One can imagine that a likely scenario where the defense may be invoked is a future incident of domestic violence involving a different intimate partner (one study, for example, found that 17% of domestic violence offenders who remained in a certain geographic area were re-arrested for another domestic violence offense within three years).  Rahimi himself is suspected of using a firearm to threaten a different woman after the entry of the restraining order triggered by his alleged assault of his ex-girlfriend.  In such a situation, the DVRO respondent might invoke necessity based on alleged violent or threatening conduct by the intimate partner.  Given the reasons for the initial status-based gun prohibition, it makes sense to construe the defense narrowly and set a high evidentiary bar in such a situation.

However, one can also imagine cases where a firearm is used by a prohibited possessor under duress in a legitimate exercise of self-defense, but where the individual continues to possess the gun due to perceived ongoing danger or simply forgets to discard or surrender the weapon.  Penn is not the best supporting case for Rahimi—the defendant there not only did not surrender the gun, but led the police on an extensive automobile and foot chase.  But, to the extent the failure to surrender a firearm is due to legitimate safety concerns or a focus on self-preservation, it makes little sense to reject the defense outright based solely on timing.  One option may be for courts to tailor the legal test to the conduct that is the basis for the possession ban.  For example, an individual with prior convictions for violent crimes or an individual who is subject to a restraining order based on past domestic violence might bear a higher burden of demonstrating that the necessity defense should apply (because that individual has a history of provoking violent confrontations).  By contrast, an unlawful drug user, a felon convicted of only nonviolent crimes, or an unauthorized immigrant would have a comparably lesser burden to open the door to a necessity defense.

[The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.]

Two new pieces of student legal scholarship are now posted examining aspects of the Bruen test.  First, in a note forthcoming in the Yale Law Journal, Josh Hochman “survey[s] rules and regulations promulgated by railroad corporations in the nineteenth century, [which he] argues . . . reveal an historical tradition of regulating passengers’ firearms.”  Hochman also asserts more broadly that “[i]ncorporating the history of non-governmental actors may have the effect of illuminating new sites where the nation has historically regulated guns in public.”  This is a fertile ground for post-Bruen research and scholarship, and at least one federal judge has relied in part on rules promulgated by private corporations when ruling on a Second Amendment challenge.  Second, in a comment that will be published in the Penn Law Review, R. Brian Tracz assesses the historical background of pre-trial firearm deprivation from criminal defendants, evaluates potential analogues, and argues “that category-wide firearms regulations of pretrial defendants without an individualized determination of dangerousness do not fit into any historical tradition of firearm regulation—including the tradition of firearm regulation for dangerous individuals.” 

Josh Hochman, The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation, Yale L.J. (forthcoming)

Abstract:

This Note argues that the Supreme Court’s Second Amendment jurisprudence allows, and may require, courts to consider sources of analogical precedent outside of formal lawmaking. Taking public transportation as a case study, this Note is also the first account to chart how historical firearm regulations in sites of transportation should inform the constitutional basis for regulating guns in contemporary trains and subways. Surveying rules and regulations promulgated by railroad corporations in the nineteenth century, it argues that these sources reveal an historical tradition of regulating passengers’ firearms. This case study instructs that courts and litigants can honor Bruen’s history-based test only by considering all of the nation’s history of firearm regulation, not just statutes.

Brian Tracz, Bruen and the Gun Rights of Pretrial Defendants, 172 U. Penn. L. Rev. _ (2023)

Abstract:

New York State Rifle & Pistol Ass’n v. Bruen announced a novel constitutional test for gun regulation. This test requires gun regulation to be “consistent with this Nation’s historical tradition of firearm regulation.” This Comment provides the first scholarly sketch of historical pretrial firearms regulations. Based on this history, I argue that forbidding non-dangerous individuals awaiting trial from possessing a firearm violates the Second Amendment under Bruen. I also reject attempts to justify gun regulation by classifying defendants as categorically unvirtuous or dangerous, by appealing to the “seriousness” of a crime (e.g., as a felony), or by analogizing pretrial release conditions to historical surety laws.

I also draw a big-picture conclusion about the Court’s historical tradition analysis. Under Bruen, courts need to fabricate a suitably described historical tradition by which to compare historical and modern firearm regulations. So despite Bruen’s promise to reign in judicial discretion, its historical-tradition analysis ultimately increases judicial discretion by allowing courts to set the relevant description by which to compare historical and modern gun regulations.

As described in a recent SCOTUS Gun Watch update, the government has sought and received an extension of the deadline to seek certiorari in Range v. Attorney General (the petition, should the government seek certiorari, is now due on October 5).  While it’s not unusual based on past practice for a party to pursue, and receive such an extension, the motion in Range is notable for at least two reasons.  First, it brings into sharp focus the impact Range has already had at the trial-court level within the Third Circuit, despite the decision’s purportedly narrow scope.  Second, it demonstrates how the government may be approaching felon prohibitor cases nationally with an eye toward future Supreme Court review.

On June 6, the en banc Third Circuit granted an as-applied challenge to the federal ban on felon firearm possession in Range—in a decision that we covered here.  Range explicitly declined to adopt a “dangerousness” test, under which courts would be charged with determining whether specific felonies are dangerous such that disarming someone convicted of the crime comports with history.  The en banc majority held that it did not need to “decide this dispute today because the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.”  The workability of a dangerousness test was a major focus of the en banc oral argument, which we covered here.  Instead, the majority labeled its decision “a narrow one” applying only to convicted felons who are relevantly similar to the felon in that case:  an individual convicted of “one count of making a false statement to obtain food stamps in violation of Pennsylvania law” nearly 30 years earlier who was sentenced to probation and a small fine and had no subsequent criminal history outside of parking tickets and fishing violations.  While the Range majority characterized its decision as limited, some dissenting judges were not convinced.  Judge Krause, for example, decried the decision as one that potentially “unsettles countless indictments and convictions, debilitates law enforcement, and vitiates our background check system.” 

Range created a circuit split with the Eighth Circuit’s decision in United States v. Jackson, released only 4 days prior.  (On September 15,  the Tenth Circuit aligned itself with the Eighth Circuit in Vincent v. Garland, holding that Bruen did not disturb earlier circuit precedent upholding 922(g)(1)).  In Jackson, a unanimous three-judge panel rejected a Second Amendment challenge to the federal felon prohibitor by an individual with past drug-related convictions.  The panel upheld the law on the basis that “history demonstrates that there is no requirement for an individualized determination of dangerousness as to each person in a class of prohibited persons.”  A second Eighth Circuit panel found a 922(g)(1) challenge by an individual with prior convictions for drunk driving and gun possession foreclosed by Jackson several days later, but with a dissent by Judge Stras noting cryptically “[m]ore to come” (and citing Jackson).  This was, apparently, a reference to the possibility of the en banc circuit rehearing Jackson.  On August 30, the Eighth Circuit declined to re-hear the case by a 7-4 margin over a lengthy dissent authored by Judge Stras.  

In his dissent from the denial of rehearing, Judge Stras argued that “Jackson does not put the government to its task of establishing an ‘historical analogue’” because the decision improperly assumed that the felon prohibitor was constitutional and placed the burden on the defendant to show otherwise.  The result, Judge Stras said, was a presumption of constitutionality and lack of intensive historical analysis that is contrary to Bruen’s directive.  Judge Stras would have found that the laws relied upon by Jackson—including colonial group prohibitions—were motivated by different purposes than 922(g)(1) and “showed a steady and consistent practice [that p]eople considered dangerous lost their arms.”  Judge Stras also rejected a virtuous-citizen theory of the right to keep and bear arms, arguing that perceived dangerousness was the actual reason for disarming groups such as Catholics and Loyalists.  He pushed back against the idea that possible death penalties for felony offenses necessarily meant that the lesser punishment of disarmament would have been permissible, suggesting that there was no consistent Founding Era practice of imposing the death penalty for felonies and that this argument would permit “the government [to] . . . strip felons of other core constitutional rights too.”  Next, Judge Stras noted that non-dangerousness-based provisions were always restricted to specific firearms and did not operate to permanently disarm anyone, as 922(g)(1) does.  Finally, Judge Stras observed that Jackson, in his view, placed too much emphasis on unsuccessful proposals in state ratifying conventions to restrict the Second Amendment to law-abiding citizens. 

Judge Stras compared Jackson’s blanket approach authorizing felon disarmament in every instance to designating the entire island of Manhattan as a sensitive, gun-free zone.  And he would generally reject Supreme Court dicta on the issue and interpret Heller’s endorsement of felon gun bans as merely creating a presumption of constitutionality that is rebutted when a felon shows that he or she is non-dangerous:

After all, a measure can be presumptively constitutional and still have constitutionally problematic applications. As-applied challenges exist for exactly this reason.

Judge Stras closed the dissent by pushing back against the idea that a dangerousness-based standard will be unworkable, noting that trial courts are often called upon to assess danger in other circumstances and arguing “that ‘felony-by-felony litigation is nothing to fear.”  Here, Judge Stras cited the Third Circuit’s pre-Bruen approach allowing as-applied challenged to 922(g)(1) by defendants who could show they were “no  more  dangerous  than  a  typical  law-abiding  citizen”—an approach that I think is roughly on par with that suggested in Range.  

Courts within the Third Circuit, relying on Range, have recently granted motions to dismiss by convicted felons charged under 922(g)(1).  For example, on August 22, Pennsylvania district judge Jennifer Wilson dismissed a 922(g)(1) charge against an individual convicted of multiple past drug offenses (possession of heroin and cocaine, with intent to distribute) in United States v. Quailes.  Judge Wilson found the government had failed to show a historically-supported dangerousness principle but that, even accepting that concept, it would be unclear “whether the disarming of a non-violent drug offender for life is consistent with this tradition” or whether laundering money or maintaining premises are “sufficiently connected to drug trafficking as to be consistent with a tradition of disarming those who pose a danger to society.”  In United States v. Harper, issued on September 1, Judge Wilson granted a motion to dismiss under Bruen by a criminal defendant with “at least thirteen prior felony and eight misdemeanor convictions, . . . include[ing] multiple armed robberies and drug trafficking convictions.”  In Harper, it appears well established that the defendant engaged in criminal conduct that suggests dangerousness; yet Judge Wilson held that,

[e]ven assuming that the examples of the historical regulations are sufficiently relevant and numerous to establish a historical tradition of disarming the dangerous, the Government did not explain to any extent the “how” of each regulation—such as the length of time the individuals were disarmed; whether a conviction was required or any other information about how the dangerousness determination was made; or what kind of offenses qualified as dangerous. The Government also did not present any argument as to the “why” or purpose of the historical regulations.

Despite the en banc majority’s attempt to decide Range narrowly, the decision seems to have prompted some lower court judges to take an extremely broad view of the post-Bruen Second Amendment’s impact on felon disarmament.  It’s not entirely clear to me whether the basis for the decision in Harper is solely the finding that the government failed to offer sufficient evidence of the how and why of relevant historical regulations, or whether Judge Wilson would also require exact alignment between historical laws and 922(g)(1) in terms of “how the dangerousness determination was made; or what kind of offenses qualified as dangerous.”  If the latter, that strikes me as a mandate for a historical twin that will almost certainly not exist, and which Bruen also does not require.  Judge Wilson’s approach seems to admit almost no limiting principle—it is hard to imagine that the Third Circuit judges in the Range en banc majority (four of whom previously embraced a version of the dangerousness test in Binderup) believe that historical tradition does not support permanently disarming an individual with multiple past convictions for armed robbery.  In fact, Judge Hardiman’s Binderup concurrence distinguished other 922(g)(1) cases on the basis that those defendants were convicted of violent crimes such as robbery and appeared to embrace the “felon civil death” argument as applied to a limited set of especially serious offenses including robbery.

The government may nevertheless believe it can decline to appeal Range while cabining the scope of the ruling, arguing within the circuit that Range applies only to those whose offense of conviction and post-conviction conduct are similar to Range, and appealing contrary decisions such as Quailes and Harper.  The government may be hoping to force the Third Circuit to provide more clarity in a case with facts that more clearly suggest dangerousness, at least at the time the offense of conviction was committed.  It is also possible the government is monitoring other 922(g)(1) challenges outside of the Third Circuit and will file for certiorari in Range if there is no appellate decision granting an as-applied challenge to 922(g)(1) in a case involving more serious criminal history in the coming weeks. 

The other complicating factor here is Rahimi, which will be argued before the Supreme Court on November 7.  If the decision in Rahimi embraces dangerousness as the relevant historical principle for disarming individuals generally, I think it’s likely both that the Court will reverse the Fifth Circuit’s decision in that case and that a dangerousness-based felony-by-felony approach will prevail under 922(g)(1).  A broad dangerousness holding in Rahimi would, I think, implicitly overrule cases like Jackson which reject as-applied challenges to 922(g)(1) wholesale.  The government is almost certainly approaching Rahimi with this in mind and hoping to avoid a broad ruling that, while reversing the Fifth Circuit on 922(g)(8), imposes a standard that might unsettle other subsections of the statute—hence the government’s focus on the terms “law-abiding” and “responsible” in Rahimi.  This is, I think, a major issue to watch for at the Rahimi oral argument.  It’s likely that the justices will have other subsections of 922(g) in mind, especially the felon ban which is used far more frequently than provisions such as the federal domestic violence restraining order ban.

The scholarship highlighted in this post does not necessarily represent the views of the Duke Center for Firearms Law.

In a new paper posted to SSRN and forthcoming in the Ohio State Journal of Criminal Law, Nicholas Goldrosen examines the connection between marijuana legalization and gun restrictions premised on drug use.  Goldrosen performs an empirical analysis of the impact of marijuana legalization, observes that “18 U.S.C. 922(g)(3) is likely not a bulwark against legal marijuana users suddenly becoming violent,” and argues in favor of “unified federal reform of either 922(g)(3) or the entire Controlled Substances Act” to address the intersection between marijuana use and firearms (rather than relying on legal challenges under Bruen, which have produced conflicting outcomes).

Two articles in the most recent issue of the Missouri Law Review also address Second Amendment-related topics.  An article by Dru Stevenson provides a comprehensive point-by-point summary of commentary by legislators during the original Congressional debates over the Second Amendment.  And Dominic Biffignani considers how challenges by the federal government to state “Second Amendment sanctuary” laws may implicate the doctrine of intergovernmental immunity (we have covered litigation over Missouri’s “Second Amendment Protection Act” here and here).  

Nicholas Goldrosen, Subtracting 420 from 922: Marijuana Legalization and the Gun Control Act After Bruen, Ohio St. J. of Crim. L. (forthcoming)

Abstract:

Numerous states have legalized marijuana for medical and recreational use. Nonetheless, federal law prohibits users of marijuana, which remains illegal federally, from possessing firearms. I interrogate this legal tension from two angles. First, this paper brings empirical evidence to this conversation: Does legalizing marijuana lead to more gun deaths?

It doesn’t. This article analyzes the effect of recreational and medical marijuana legalization on gun homicides, suicides, and deaths as well as on gun prevalence, gun purchasing, and federal gun prosecutions. I combine administrative data from the National Vital Statistics System, National Instant Criminal Background Check System, and United States Sentencing Commission for the period from 2010 through 2020. To estimate a causal effect, I employ a difference-in-differences method with staggered treatment timing from Callaway and Sant’Anna (2021) to compare states that have legalized marijuana to those that have not yet legalized marijuana but will during the study period. There is no evidence of a statistically significant treatment effect of either recreational or medical marijuana legalization on firearms deaths, homicides, or suicides. Additionally, there is no evidence that legalization causes greater firearms sales or prevalence, or that the federal gun prohibition for marijuana users deters gun killings post-legalization.

Secondly, this regulation has received new scrutiny after the Supreme Court’s recent ruling in NYSRPA v. Bruen, under which firearms regulations must be justified by consistency with “this Nation’s historical tradition of firearm regulation.” Courts have come to conflicting answers on whether the prohibition on gun ownership by marijuana users accords with the Second Amendment under Bruen. I therefore survey three potential legal paths for resolving the conflict between state legalization of marijuana and federal gun laws. First, legislators might directly amend the Gun Control Act to allow for gun possession by some or all marijuana users. Second, legislators might reform marijuana’s status within the Controlled Substances Act more broadly. Finally, an uncertain future for the controlled-substance-user prohibition exists in the courts post-Bruen. The Bruen decision’s unworkable tests do not clearly support either upholding or striking down this ban. If anything, the interpretation of the federal ban on gun possession by marijuana users under Bruen highlights the impracticability of its test. Amongst these solutions, I argue that broader Controlled Substances Act reform is the likeliest to provide consistency while not harming public safety.

Dru Stevenson, Revisiting the Original Congressional Debates About the Second Amendment, 88 Mo. L. Rev. 455 (2023)  

Abstract:

Many scholars and courts have written about the historical background of the Second Amendment, either to emphasize its connection to state-level citizen militias or to argue that the Amendment protects an individual right to own and carry guns for self-defense. While many authors have mentioned the original congressional debates about the Second Amendment, the literature is missing a thorough, point-by-point analysis of those debates, situating each statement in Congress within the context of the speaker’s background and political stances on issues overlapping with the right to keep and bear arms. This Article attempts to fill this gap by providing a methodical discussion of each comment or argument made in Congress when the Second Amendment was under consideration. This discussion addresses how each of the congressmen’s comments connect to public statements made by the same members of Congress in the months that followed on related topics: taxation and public debt related to militias, the supply of available firearms and their legal status as private or public property, the institution of slavery, westward expansion, and especially the complications for each of these issues posed by the Quakers, who became the center of attention during the debates about the Second Amendment. These original congressional debates have taken on more importance following the Supreme Court’s recent holding that courts should decide Second Amendment challenges based on historical evidence from the years immediately preceding and following ratification. While this Article does not take a position on current litigation over modern firearm regulations, the discussion here can offer courts and commentators new insights into the original public meaning of the Second Amendment.

Dominic Biffignani, The Applicability of Intergovernmental Immunity Doctrine to Second Amendment Sanctuary Laws, 88 Mo. L. Rev. 369 (2023)

Abstract:

To what extent can states enact legislation that frustrates federal regulation of firearms—in an effort to maximize protections of the Second Amendment and related state constitutional provisions— without running afoul of the Supremacy Clause? The answer to that question lies within the intergovernmental immunity doctrine, a virtually obscure legal doctrine with origins in the Supremacy Clause and Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland.

For many years, the United States Supreme Court was reluctant to clarify the contours of intergovernmental immunity. This did not stop the federal government from asserting the doctrine in various actions to strike down state laws frustrating federal schemes—most notably to challenge California laws frustrating the federal government’s immigration framework. The federal government’s assertion of the doctrine achieved mixed results, with both district courts and the circuit courts applying the doctrine in a haphazard manner. However, the United States Supreme Court’s recent clarification of intergovernmental immunity in United States v. Washington breathed new life into the doctrine and cemented its importance in future disputes between the federal government and the states

In response to President Biden’s election and vow to increase federal regulation of firearms, many state legislatures passed what this Article calls Second Amendment sanctuary laws. The general purpose of these laws is to resist increasing federal regulation of firearms. Recently, the federal government has brought declaratory judgment actions seeking to declare some Second Amendment sanctuary laws unconstitutional, asserting intergovernmental immunity as a basis for declaring these state laws invalid. This Article recounts the history of intergovernmental immunity (and its doctrinal brethren), argues why the doctrine is important to Second Amendment sanctuary litigation, and applies it to various Second Amendment sanctuary laws in order to provide an applicable framework for future practitioners, legislators, and courts tackling intergovernmental immunity issues.

On August 9, a unanimous Fifth Circuit panel invalidated the federal ban on unlawful users of controlled substances possessing firearms, as applied to a habitual user of marijuana, in United States v. Daniels.  While a handful of district courts had reached similar conclusions on this provision of federal criminal law—including the February decision in Harrison that we covered here—the Fifth Circuit was the first circuit to consider the post-Bruen constitutionality of the “unlawful user” ban.

During a traffic stop, officers found two loaded firearms and marijuana cigarette butts in Daniels’ car.  The officers did not conduct a drug test or ask whether Daniels was intoxicated at the time of the stop.  Daniels later admitted to being a regular marijuana user (“approximately fourteen days out of the month”), and was charged under 18 U.S.C. § 922(g)(3)—which makes it a federal crime for anyone “who is an unlawful user of or addicted to any controlled substance” to possess a firearm.  After Bruen, Daniels moved to dismiss his indictment, arguing that (g)(3) is unconstitutional under the Second Amendment.  The district court, as most courts have done post-Bruen, upheld the law and “compared § 922(g)(3) to laws disarming felons and the mentally ill that Heller called ‘presumptively lawful.’”  Daniels was subsequently convicted at trial, sentenced to a lengthy prison term, and appealed. 

The Fifth Circuit first addressed “the threshold question: whether the Second Amendment even applies to Daniels.”  The panel held that Daniels is “a member of our political community” and thus “has a presumptive right to bear arms.”  While acknowledging the Supreme Court’s reference to “law abiding” citizens in both Heller and Bruen, the court declined to “read too much into the Supreme Court’s chosen epithet” and suggested that this term did not indicate a limitation broader than “traditionally understood restrictions on the right to bear arms.”  At Bruen step two, the court first observed that “the Founding generation had no occasion to consider the relationship between firearms and intoxication via cannabis” and, therefore, found that Bruen requires only “relevantly similar” historical analogues.  The opinion then considered three different categories of potential analogues offered by the government for the “unlawful user” ban: “(1) statutes disarming intoxicated individuals, (2) statutes disarming the mentally ill or insane, and (3) statutes disarming those adjudged dangerous or disloyal.”

As to laws dealing with intoxication and firearms, the court noted that the Founding Era record is sparse.  Colonial laws were animated by different purposes, such as gunpowder conservation, and did not prohibit gun possession.  Militia laws, the court said, applied only in that context and were intended “to ensure a competent military” rather than to protect public safety.  The court seemed generally unwilling to seriously consider a handful of Reconstruction era state bans on carrying guns while intoxicated—the panel suggested that these laws were too few, too new, and narrower than (g)(3)’s possession ban. 

Next, the government pointed to a tradition of disarming the mentally ill.  While there were not necessarily specific disarmament statutes throughout history targeting mentally-ill individuals, the government argued that widespread institutionalization meant that the mentally ill necessarily also lost the right to possess guns.  While the court was willing to accept that intoxication by marijuana might be akin to temporary mental illness, it held that the historical evidence did not support “disarming a sober citizen who is not currently under an impairing influence.”

Finally, the government argued more broadly that “Congress can limit gun possession by those ‘dangerous’ to public peace or safety,” consistent with history.  Here, the government pointed to laws disarming political dissidents and religious minorities based on judgments of perceived dangerousness, the Militia Act of 1662 and its allowance for disarming those “dangerous to the Peace of Kingdome,” and unadopted proposals in state ratifying conventions to limit the Second Amendment to “peaceable citizens” or non-criminals.  The court found that, taken “[t]ogether, th[is evidence] suggest[s] a public understanding that when a class of individuals was thought to pose a grave danger to public peace, it could be disarmed.” 

Rejecting the idea that legislatures have “unchecked power to designate a group of persons as ‘dangerous’ and thereby disarm them,” the opinion instead explained that courts should “analogize to particular regulatory traditions instead of a general notion of dangerousness.”  The panel then applied this approach to the government’s proffered analogues.  Ultimately, the court held that “[t]he government identifies no class of persons at the Founding (or even at Reconstruction) who were ‘dangerous’ for reasons comparable to marihuana users.”  Therefore, the panel struck down 922(g)(3)—clarifying, however, that “[w]e do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels.” 

Judge Stephen Higginson filed a concurrence noting that he “fully concur[s] in the majority’s reasoning,” but also observing “that courts, operating in good faith, are struggling at every stage of the Bruen inquiry.”  Judge Higginson’s concurrence reads as a plea for the Supreme Court to clarify at least some of these questions in Rahimi, and forcefully concludes by observing that:

To read the Second Amendment as providing an ever-expanding individual right, without limits . . . runs counter to both its text and the Framers’ own understanding.

Daniels (as with other decisions invalidating 922(g)(3) such as Harrison) strikes down the unlawful user ban only in certain applications—namely, as applied to a habitual marijuana user such as Daniels who was not actively under the influence of marijuana while possessing a firearm.[1]  That said, it’s hard to imagine how the result would be any different in a case where someone is convicted under 922(g)(3) for consistent use of a non-marijuana controlled substance: cocaine, heroin, psychedelics, and so on.  There’s no Founding era history of possession bans based on habitual intoxication or drug use, period, and the reasoning in Daniels seems to dictate that—for all controlled substances—the broadest regulation that is even possibly consistent with the Second Amendment is a ban on carrying guns while under the influence.  The type of drug at issue does not seem to impact the court’s holding at step one that drug users are part of the political community.  Moreover, the historical-analogue approach in Daniels would almost certainly produce the same outcome in a non-marijuana 922(g)(3) case:  historical intoxication bans and treatment of the mentally ill would support, at most, a ban on carrying while under the influence (not a general possession ban like (g)(3)), and a cocaine user is dissimilar from a Founding era loyalist or Catholic in the same ways as a marijuana user and thus not analogously dangerous in the panel’s view.  Therefore, despite the opinion’s careful language, I think it’s fair to read Daniels to strongly suggest that this panel would facially invalidate 922(g)(3)’s possession ban. 

Daniels illustrates vividly how Bruen makes efforts to accommodate Second Amendment rights with risks presented by the combination of drug use and firearms very difficult.  Historical legislatures did not have nearly the same understanding as we do today of the different cognitive impacts of various controlled substances (somewhat ironically, Daniels leads with a cogent observation on this very point: even though hemp was known at the Founding, people at the time “were not familiar with widespread use of marihuana as a narcotic”).  At the most basic level, substances that cause one to “experience[e] vast changes in how they perceive reality” will be far more dangerous when combined with firearms than substances that do not have such an impact.  As Daniels shows, there’s little reason to believe Founding era legislatures would have appreciated this difference the way we do today (or, indeed, that they would have envisioned the “drug trade” and a large “consumer” market for such substances at all). 

To me, at least, the major blind spot in Daniels is its failure to consider empirical evidence when weighing whether a historical tradition of disarming dangerous (or non-law-abiding, non-responsible) individuals might support 922(g)(3).  If the touchstone is dangerousness or irresponsibility, then it should not matter so much that modern drug users are not dangerous or irresponsible in the same way as groups disarmed at the Founding.  Rather, the question is whether the legislature based its judgment on the same broad historically-supported principle and whether the connection to dangerousness or irresponsibility today is borne out by empirical evidence.  While other courts have upheld 922(g)(3) under this rationale as applied to marijuana users, changes in the legal status of marijuana at the state level and studies showing a lack of connection between marijuana use and crime[2] may well change the calculus for marijuana users and allow successful as-applied challenges.  The same may not be true for users of many other controlled substances, namely those that distort the user’s perception of reality.

[1] While the government appears to have conceded this point, it’s more accurate to say there was no proof that Daniels was under the influence when he was stopped with firearms.  In fact, it seems at least possible—based on the circumstances of the traffic stop and his subsequent admission of regular marijuana use—that Daniels was under the influence of marijuana but that the officers simply failed to obtain any proof of this.

[2] For example, a 2013 report indicated that, “[e]ven though marijuana is commonly used by individuals arrested for crimes, there is little support for a contemporaneous, causal relationship between its use and either violent or property crime.”

On June 28, District Judge Carlton Reeves issued a decision in United States v. Bullock granting a motion to dismiss by a criminal defendant charged with possessing a firearm as a convicted felon.  Judge Reeves found that the government had failed to offer sufficient historical support for the federal ban on felon gun possession (as applied to this particular defendant) and dismissed the charge.  The decision is notable in part because the defendant had multiple prior violent felony convictions on his record—for manslaughter and aggravated assault—distinguishing him from the defendants in cases like Range and Binderup whose past convictions were not for violent crimes.  But perhaps the bigger story is Judge Reeves’ forceful criticisms of Bruen, historical analogy as a mode of constitutional interpretation, the Supreme Court’s past Second Amendment jurisprudence, and originalism writ large.

Judge Reeves previously issued an order in Bullock directing the parties to brief the issue of whether he should appoint a professional historian as a neutral expert in the case (similar to how special masters are occasionally appointed by district judges to assist with certain technically challenging or complex matters).  We covered that earlier order here.  Neither party agreed to the judge’s proposal—with each side arguing that it should prevail under Bruen without the need for any expert input.  In his opinion granting Bullock’s motion to dismiss, Judge Reeves expressed concern about the utter lack of expert testimony in the case and doubt about whether Second Amendment cases can be effectively resolved based on the adversarial process without any amicus briefs or expert submissions.  He observed that, while the “[t]he justice system ordinarily operates like a pyramid [with t]housands of disparate factual records [] created in the trial courts” and filtering up toward the Supreme Court, “[i]n Second Amendment cases . . . the pyramid is turned on its head.”  Because amicus briefs and expert submissions are generally reserved for the appellate and Supreme Court level, district courts are left to decide complex historical questions on an inadequate factual record.

Judge Reeves ultimately declined to follow other post-Bruen decisions that have relied on Heller’s endorsement of the felon ban in 18 U.S.C. § 922(g)(1) as “presumptively lawful,” finding that he could not “honor an advisory opinion on an issue that was not before the Supreme Court” in that case.  Reading the phrase “the people” broadly to include all members of the political community and not only “law-abiding” members, the judge also found that Bullock’s conduct implicated the Second Amendment and required a historical analysis.  Judge Reeves dismissed various historical arguments for a virtue-based theory of disarmament, including proposals from state ratifying conventions and the fact that some felons were subject to the death penalty in the Founding era.  The judge further found that the government failed to prove “that there is a historical tradition of disarming either the violent or the dangerous” and observed that a felony-by-felony dangerousness-based standard is likely unworkable:

We already use the categorical and modified categorical approaches to determine whether a defendant’s past conviction is “for a violent felony” for purposes of the Armed Career Criminal Act. And the methodologies are not well‐liked.

Because he determined that the government failed to meet its burden of establishing a historical tradition to support disarming someone previously convicted of a violent felony but who is not currently dangerous, Judge Reeves granted Bullock’s as-applied challenge to 922(g)(1). 

In closing, Judge Reeves observed that, “[i]In breathing new life into the Second Amendment, . . . the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights” such as the right to a speedy trial and the right to vote.  And the judge levied a forceful critique against originalist jurisprudence generally, writing that “[m]any of our Nation’s finest moments came when we rejected the original public meaning of a Constitutional provision.”

I won’t spend much time in this post addressing the substantive outcome in Bullock, which I think is likely to be reversed on appeal.  For one, I believe that—even under the analysis in Range—a defendant with a relatively recent conviction for assault can be disarmed consistent with historical tradition.  I also think that Bullock likely represents an instance of what Jessica Bulman-Pozen and David Pozen label “uncivil obedience”: “challenging a legal or policy scheme by adhering, in methodical yet unexpected ways, to its formal provisions.”  And I also won’t delve into Judge Reeves’ broader critiques of originalism (some, but not all, of which I agree with).  Rather, I’d like to turn back to the issue Judge Reeves identified in his earlier order in the case: whether a historical-analogy test necessitates the input of expert historians and, if not, how trial court judges are supposed to resolve Second Amendment cases under Bruen. 

Bruen is relatively clear that, in theory, its methodology does not require courts to “resolve historical questions in the abstract” because of “the principle of party presentation.”  But I think Judge Reeves’ observation about the “reverse pyramid” that currently exists in Second Amendment cases is a useful way to conceptualize the problems with this approach.  Normally, relying on party presentation would be unobjectionable because, as Judge Reeves notes, “error‐correction and harmonization” occur as the case works its way up based on the trial-court record.  While amicus briefs may inform higher levels of the court system and influence judges’ thinking, they contain legal arguments based on the same evidence the trial court judge considered.  When that pyramid is inverted and additional historical facts are introduced through experts and amici at the appellate and Supreme Court levels, the process puts the trial court judge in a nearly impossible situation.  How is he or she supposed to render a decision that can withstand appellate scrutiny, a completely normal objective for any trial court judge, when the underlying record is likely to change in substantial ways after the case goes up on appeal? 

If the history changes because additional laws are introduced (or unearthed) as the case works its way up, then the factual basis for the decision may also change or evaporate.  Professors Will Baude and Stephen Sachs argue that “law often handles historical evidence in an artificially limited way” and that, therefore, a modern lawyer “may properly ignore a substantial amount of information about the past.”  But that view doesn’t necessarily hold if appellate judges are not similarly willing to be limited by adversarial presentation and the evidence originally submitted in a given case.  And appellate judges or Supreme Court justices may choose to pursue a much more probing historical inquiry (perhaps even independently) for any number of reasons, including that they have the resources available to conduct this research, feel the need to engage more deeply with history so that the resulting decisions will appear more legitimate or be better received by academics, and so on.  The result, as Judge Reeves notes, is an odd system of adjudication where developing a historical record occurs primarily at the appellate and Supreme Court levels, and only later filters down to district and state courts. 

We’re already seeing some signs of this: the Supreme Court has felt the need to take another Second Amendment case just one year after Bruen, and the Third Circuit’s decision in Range seems to signal the advent of felony-by-felony dangerousness determinations similar to ACCA cases (where one appellate judge observed that “perhaps no other area of the law has demanded more of our resources”).  Judge Reeves’ suggestion that the government hire expert historians for Second Amendment cases holds some merit, I think, but ultimately I doubt that the government will choose this route as opposed to devoting more resources to presenting its best historical case at the appellate and Supreme Court levels.  Ultimately, a larger shift to historically focused legal tests may require a reevaluation of stare decisis, as some scholars have argued.  For example, courts may need to embrace a theory under which appellate court judges can disregard any “demonstrably erroneous” conclusion about historical facts.  But, at that point, I think it’s worth asking what value the initial trial-court litigation really has.  If Bruen has in fact turned Second Amendment jurisprudence into an inverted pyramid compared to how other areas of constitutional law operate, the best way forward is likely to try and correct that imbalance by gradually facilitating greater access to historical sources and materials at the trial court level.

In a June 6 decision in Range v. Attorney General, a majority of judges of the en banc Third Circuit held 922(g)(1)—the federal statute banning possession of firearms by convicted felons—unconstitutional under the Second Amendment as applied to an individual convicted of making a fraudulent statement in an application to obtain food stamps.[1]  Last November, a unanimous Third Circuit panel upheld the statute and ruled against Range (we covered that decision here).  The panel decision was then vacated for rehearing en banc, the full court heard oral argument in February (which we covered here), and a nine-judge majority ultimately reached the opposite result as the panel and held the statute unconstitutional as applied to Range.

The majority opinion by Judge Hardiman first laid out the factual and procedural history of the case and then summarized Bruen and its test for Second Amendment challenges.  The opinion turned next to a “threshold question: whether Range is one of ‘the people’ who have Second Amendment rights.”  The majority explained that, in its view, the references in Heller and Bruen to “law-abiding” citizens were dicta and the phrase “the people” in the text of the Second Amendment should be read broadly, consistent with other constitutional provisions.  Endorsing then-Judge Barrett’s position in Kanter v. Barr that “a person convicted of a qualifying crime does not automatically lose his right to keep and bear arms but instead becomes eligible to lose it,” the opinion further observed that limiting Second Amendment rights to “law-abiding” citizens would excessively “devolve[] authority to legislators to decide whom to exclude from ‘the people.’”  Therefore, the majority found that Range is within “the people” protected by the Second Amendment.

The majority framed the second Bruen inquiry as “whether the Government has justified applying § 922(g)(1) to Range ‘by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation’” (quoting Bruen).  The majority first found that the felon prohibitor itself is not sufficiently longstanding under Bruen—Range would not have been prohibited from possessing a gun under federal law until 1961, which “falls well short of ‘longstanding’ for purposes of demarcating the scope of a constitutional right.”  The majority also rejected laws disarming groups such as “Loyalists, Native Americans, Quakers, Catholics, and Blacks” as analogues because “the Government does not successfully analogize those groups to Range and his individual circumstances.”  Even though early American state governments occasionally put nonviolent felons to death for their crimes, the majority observed that:

[t]he greater does not necessarily include the lesser: founding-era governments’ execution of some individuals convicted of certain offenses does not mean the State, then or now, could constitutionally strip a felon of his right to possess arms if he was not executed.

In fact, the majority noted, “a [non-executed] felon could ‘repurchase arms’ after successfully completing his sentence and reintegrating into society” and “Founding-era laws often prescribed the forfeiture of the weapon used to commit a firearms-related offense without affecting the perpetrator’s right to keep and bear arms generally.”  Finally, the majority rejected earlier circuit-court precedent upholding 922(g)(1) because those cases were decided pre-Bruen.  Notably, while observing that Range had argued that the historically correct limiting principle for felon disarmament is “dangerousness,” the majority expressly declined to adopt that test:

We need not decide this dispute today because the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.  (emphasis added)

Because the majority found that historical tradition does not support disarming Range, it reversed the district court’s prior decision and remanded with instructions to enter judgment in Range’s favor on his as-applied challenge to 922(g)(1). 

There were a number of concurring and dissenting opinions filed in the case.  Judge Porter wrote a concurrence arguing that it is improper, in his view, to use antebellum state law to determine the scope of the federal Second Amendment “because the states—unlike the national government—retained sweeping police powers and weren’t originally constrained by the Bill of Rights, [and therefore] were free to regulate the possession and use of weapons in whatever ways they thought appropriate.”  Judge Porter also took aim at the expansion of the federal government’s commerce clause power beginning in the 1930s and suggested that historical state regulation cannot be combined with an expansive interpretation of the Commerce Clause because this would under-protect Second Amendment rights.  Judge Ambro, joined by Judges Greenaway and Montgomery-Reeves, concurred to clarify that (in their view) the decision in Range is limited to its factual circumstances and “does not spell doom for 922(g)(1)” as a whole.  The Ambro concurrence argued that colonial and early American laws illustrate a general presumption that the government may “keep arms from those perceived to threaten the orderly functioning of society”—but that the presumption was rebutted in this specific case.

Judge Shwartz, joined by Judge Restrepo, filed a dissenting opinion arguing that “[t]he Majority’s analysis is inconsistent with the Supreme Court’s jurisprudence and has far-reaching consequences.”  Notably, this dissent contended that “the founders categorically disarmed [] members of [certain] groups because the founders viewed them as disloyal to the sovereign” and that “[t]he felon designation similarly serves as a proxy for disloyalty and disrespect for the sovereign and its laws.”  The Shwartz dissent took a fundamentally different view of Range’s offense than the majority opinion, characterizing the offense as “stealing from the government, a crime that directly undermines the sovereign.”  Judge Shwartz concluded by arguing that—contrary to the view expressed in the Ambro concurrence—the decision will have broad consequences for all felon disarmament.

Judge Krause also wrote a lengthy dissent in which she emphasized the potentially broad scope of the holding, argued that the majority opinion “tracks precisely the Fifth Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers,” and noted that decision unnecessarily creates a circuit split over the felon prohibitor.  Judge Krause asserted that the majority applied Bruen far too narrowly and ignored the history of legislative discretion to disarm those who, “based on their status, [] were deemed non-law-abiding subjects,” and she argued that the opinion “replaces [a] straightforward test with an opaque inquiry—whether the offender is ‘like Range.’”  Judge Krause further highlighted several possible consequences of the decision—including that it “makes the statute’s mens rea impossible to establish” under Rehaif, which will complicate the operation of the federal criminal background check system for gun purchases.  Judge Krause contended that these undesirable consequences could have been avoided had the majority issued “a purely prospective declaratory judgment, restoring Range’s gun rights going forward,” rather than ruling directly on the constitutionality of 922(g)(1). 

Finally, in a short dissent, Judge Roth explained that she would have found Range protected by the Second Amendment but that, in her view, Range lacked standing to challenge 922(g)(1) because he “failed to set forth the necessary interstate commerce connections to allow federal jurisdiction of his complaint.” 

The decision in Range came just four days after the Eighth Circuit—in a published decision in United States v. Jackson—rejected an as-applied challenge to 922(g)(1) by an individual who argued that “his drug offenses were ‘non-violent’ and do not show that he is more dangerous than the typical law-abiding citizen.”  The Eighth Circuit panel held that Bruen “did not disturb” Heller’s endorsement of the felon prohibitor as presumptively lawful and “conclude[d] that there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).”  Specifically, Jackson observed that interpreting Heller to create only a rebuttable presumption of constitutionality is “an unlikely reading” because it would “cast doubt on the constitutionality of [the felon ban] in a range of cases despite the Court’s simultaneous statement that ‘nothing in our opinion should be taken to cast doubt’ on [that law].”

Jackson appears to endorse the view adopted by the original panel opinion in Range that “history supports the authority of Congress to prohibit possession of firearms by persons who have demonstrated disrespect for legal norms of society.”  However, Jackson also holds that—even if one were to view “dangerousness” or “violence” as the relevant inquiry—“there is no requirement for an individualized determination [] as to each person in a class of prohibited persons” and a reasonable legislative judgment that an entire class of individuals (such as convicted felons) is dangerous comports with historical tradition.  Interestingly, the Jackson panel observes that this approach might actually be more permissive of gun regulation in some instances than using means-ends scrutiny (the Third Circuit in Binderup, for example, vindicated an as-applied challenge to 922(g)(1) by a non-violent felon when applying intermediate scrutiny pre-Bruen), but found this a natural “product of the method of constitutional interpretation endorsed by Bruen.”  On June 13, a separate Eighth Circuit panel rejected another as-applied Second Amendment challenge to 922(g)(1) by a criminal defendant originally convicted of drunk driving because “[t]his contention is foreclosed by United States v. Jackson, where we concluded that there is no need for felony-by-felony determinations regarding the constitutionality of § 922(g)(1) as applied to a particular defendant.”[2]

While Range and Jackson dealt with different disqualifying felony convictions—and Range is almost certainly a more sympathetic challenger than Jackson, who had two recent convictions for selling narcotics—the decisions create a clear circuit split both as to the legal effect of Heller’s carveouts and the proper historical analysis for felon disarmament under Bruen step two.  The majority opinion in Range gestured only briefly to Jackson, perhaps due to the short intervening time period, but the Eighth Circuit’s opinion there is more heavily cited in the Range dissents.  As was strenuously debated during the Range oral argument, it’s difficult to see how the en banc decision does not set the stage for the type of felony-by-felony adjudication that Jackson specifically rejects.  In fact, the en banc majority’s choice not to adopt a “dangerousness” test makes things even more uncertain, as Judge Krause observes in dissent:

The particulars are plentiful, but the majority never specifies, among these and other descriptors of Range’s life pre- and post-conviction, the respects in which an offender must be “like Range” to preclude the application of § 922(g)(1).

I think that’s generally right, and it just isn’t clear from the majority opinion why the judges believe that disarming someone like Range is not supported by historical tradition.  Moreover, if post-conviction conduct and personal circumstances are relevant—as the majority suggests—then it’s hard to see the outcome here as solely a result of Range’s lack of a dangerous or violent criminal history.  Even someone convicted of assault (or a more serious violent felony), for example, might be “like Range” in that they have lived an exemplary life for decades after the offense of conviction.  I ultimately don’t believe that the majority’s approach is tenable going forward.  Rather, the Third Circuit—and any other courts that limit application of 922(g)(1)—will have to settle on a principled basis by which to distinguish felonies where disarmament is historically supported from those where it is not.  But that is a difficult line to draw, as the oral argument in Range illustrated.  For example, are the crimes of possessing child pornography or orchestrating a digital intrusion of a sensitive internet database inherently dangerous?  The majority’s decision not to embrace dangerousness (or any standard) may be a result of disagreement among the judges about which felonies should be covered.

Finally, a quick word about Judge Porter’s concurrence.  The concurrence argues that (1) “it’s unclear what many early state laws prove about the contours of the Second Amendment right” because some states didn’t have a Second Amendment analogue when those laws were adopted, (2) “using state law to define a federal constitutional amendment that was fashioned to protect individual rights and a reserved power poses a doctrinal conundrum” because historically the state police power was quite broad, and (3) “[s]etting the federal floor through a combination of antebellum state police power and Congress’s post-New Deal commerce authority, as the dissents propose, would underprotect the constitutional right to keep and bear arms.”  Judge Porter seems to be saying that early state laws aren’t as relevant to the Bruen inquiry when dealing with a federal regulation because many states didn’t have state-analogue provisions in place when those laws were adopted, that the relatively recent emergence of more expansive federal gun regulation through the Commerce Clause is entirely irrelevant under Bruen, and that judges must not improperly use earlier state regulations to act as though the federal government has always possessed broad power to regulate firearms.  His focus on the Commerce Clause is interesting, as historically rooted Commerce Clause arguments against federal gun regulation seem to be gaining some currency.

But how is grafting our modern-day conception of an expansive federal Second Amendment that applies to state governments onto a historical record where the amendment didn’t apply to the states any more faithful to history than the approach Judge Porter decries?  For one, many of the states that regulated individual gun possession most heavily in the 1800s—including by banning or heavily taxing a large number of concealable weapons—did so with a state constitutional arms-bearing protection in place (Alabama in 1837, Tennessee in 1879, and Arkansas in 1881).  Moreover, a true return to first principles would roll back both the scope of the Commerce Clause and the judicially construed scope of the Second Amendment.  This would presumably mean that state governments in states without a Second Amendment analogue in their state constitution today (New York, New Jersey, and so on) would be “free to regulate the possession and use of weapons in whatever ways they thought appropriate” as they were historically—which Judge Porter almost certainly would not accept.  In other words, a return to the original scope of the federal Commerce Clause power (which certainly expanded dramatically during the New Deal era) is historically anomalous unless accompanied by corresponding adjustments in other areas and wouldn’t necessarily result in greater protection for Second Amendment rights.  It is no less a matter of “retconning” to transfer our modern-day conception of a federal judicial power to enforce federal constitutional provisions against state governments onto a historical canvas where the state police power was generally immune to such incursions.

[1] Range’s offense of conviction was a misdemeanor under Pennsylvania law but a disqualifying felony under 922(g)(1) because it carried a maximum penalty of five years’ imprisonment and was thus “a crime punishable by imprisonment for a term exceeding one year.”

[2] The panel decision in that case, United States v. Cunningham, was two-to-one.  Judge Stras dissented, noting only that there would be “[m]ore to come” and citing to the decision in Jackson—perhaps suggesting that Jackson could be re-heard by the en banc court.

Seven amicus briefs were filed in support of the federal government’s petition for certiorari in United States v. Rahimi, which presents the question of whether 922(g)(8)—the federal ban on those subject to certain domestic-violence restraining orders possessing firearms—is constitutional under the Second Amendment. We previously covered the Fifth Circuit’s decision in Rahimi here and here.  The main arguments offered in each amicus brief are summarized below.

Looking ahead, the Court will consider the government’s petition for certiorari in Rahimi at its final conference of the term on June 22 (with the associated Orders List released the following Monday, June 26). The Court has typically granted certiorari in 1-3 cases coming off the term’s final conference—for example, cert was granted in one case on June 27, 2022 and in two cases on June 28, 2021. Based on one scholarly assessment from 2015, the Court is more likely to grant in June than following its post-recess “Long Conference” in early September. With that said, the Court’s docket is discretionary and it is possible that the Court denies the petition, issues some kind of summary disposition rather than taking the case on the merits, or postpones consideration of Rahimi until September.

Brief of California Governor Gavin Newsom

According to Governor Newsom, the Fifth Circuit went beyond searching for a historical analogue, and instead demanded a historical twin. Newsom argues that this was especially detrimental in Rahimi because of the very late development of intrafamily violence laws in the United States, leaving a void where historical analogues would have been found. Because of this lack of historical domestic violence law, Governor Newsom contends that Rahimi requires the “more nuanced” analysis that applies when a societal concern is “unprecedented.”

Second, this brief argues it is imperative that the Court grant a writ of certiorari in order to protect domestic violence victims. Newsom claims that Rahimi puts lives in danger by jeopardizing the safety of a particularly vulnerable group and threatens the ability of state governments to enact and enforce reasonable firearm regulations. Finally, the brief reminds the Court that Bruen itself states that the decision is not intended to be a regulatory straight jacket.

Brief of Texas Advocacy Project

To begin, the Texas Advocacy Project argues that the Fifth Circuit ignored that the Bill of Rights and its predecessor—the English Declaration of Rights of 1689—are conditional in nature. The brief notes that, in the English Declaration of Rights, the right to bear arms was initially predicated on access to firearms that was “suitable to” one’s “Conditions . . . as allowed by Law.” Additionally, the Texas Advocacy Project contends that each of the historical analogues offered by the government at the appellate level should have been sufficient to uphold (g)(8). The brief argues that so-called dangerousness laws should have sufficed because, while views on what constitutes “dangerousness” have changed since these laws were enacted, they still affirm the general principle that the government has the right to disarm dangerous individuals. Next, the brief contends that the Fifth Circuit committed two errors when it dismissed “going armed to the public terror” and surety laws as historical analogues. First, the fact that Rahimi’s protective order was issued by a civil court is irrelevant because Rahimi committed a crime when he violated the civil order. Second, the Fifth Circuit was overly concerned with how frequently protective orders are issued in divorce proceedings—protective orders require a finding that domestic violence has occurred or is likely to occur (or both) in forty-six states, and many such orders are still not subject to § 922(g)(8).

Next, the brief claims that the Fifth Circuit improperly dispensed with the rule that facial constitutional challenges require the challenger to show that a law is unconstitutional in all applications. By doing so, the Fifth Circuit required the government to prove that the regulation was constitutional in all cases. And, according to the Texas Advocacy Project, the government was thus improperly forced to defend § 922(g)(8) against the hypothetical factual scenarios implicated by (g)(8)(C)(ii) in a case involving a (g)(8)(C)(i) charge, violating the case-and-controversy requirement of Article III. Finally, the brief argues that (g)(8)’s importance in saving lives cannot be overstated. More than two-thirds of shootings in Texas are in domestic violence settings and, according to the brief, prohibiting domestic abusers from possessing firearms helps remedy this problem.

Brief of Gun Violence and Domestic Violence Prevention Groups

The Gun Violence and Domestic Violence Prevention Groups’ brief argues that certiorari should be granted for two additional reasons not offered by the petitioners. First, the brief asserts that there is widespread uncertainty surrounding how Bruen should be applied by lower courts. The brief claims that the Fifth Circuit’s holding is evidence that there is a misunderstanding about how similar a historical analogue must be and when a court should use the “nuanced” approach for an “unprecedented societal concern.” Accordingly, the brief argues that the Supreme Court should correct the Fifth Circuit’s misapplication of both of these aspects of Bruen’s holding. Second, the brief contends that Rahimi endangers not just victims of domestic abuse, but the much larger population that could potentially be harmed by a dangerous individual with gun, further increasing the importance of upholding (g)(8). Finally, the brief observes that laws similar to (g)(8) have been adopted in a majority of states and, according to the brief, these laws have been very effective at reducing gun violence.

Brief of New York County Lawyers Association

First, the New York County Lawyers Association contends that Rahimi poses a threat to New York’s longstanding firearms licensing regime. The brief argues that this is especially relevant because New York recently passed a law allowing police officers to take temporary custody of a firearm when someone is arrested for or under suspicion of committing family violence. The brief asserts that the Fifth Circuit’s decision places many women in peril by casting doubt on the constitutionality of these provisions of New York law.

Additionally, like many of the other amici, the New York County Lawyers Association maintains that the Fifth Circuit asked for too much when judging the similarity of a historical analogue. The brief argues that there is a longstanding government tradition of disarming dangerous people, that both Heller and Bruen limit the Second Amendment right to “law-abiding, responsible citizens,” and that either fact is sufficient to uphold (g)(8).

Brief of Illinois et al.

The brief filed on behalf of Illinois, 22 other states, the District of Columbia, and the Northern Mariana Islands reminds the Court that the consequences of Rahimi are not limited to federal criminal law. Almost every state either requires or permits courts to impose limitations on the possession of firearms by those subject to a domestic violence restraining order. The brief contains an extensive survey of how various states have enacted and enforced provisions similar to § 922(g)(8) and argues that all of these laws are threatened by Rahimi. As a result, according to the states, the Fifth Circuit’s decision undercuts important laws and deprives domestic violence victims of crucial protections. 

Brief of Joshua Horwitz et al.

First, this brief argues that Rahimi warrants a cert grant because it raises significant questions surrounding provisions of federal law and creates a circuit split. The public-health researchers and lawyers who authored this brief argue that Rahimi not only holds (g)(8) unconstitutional, but also casts serious doubt on the constitutionality of (g)(9)—the federal ban on domestic violence misdemeanants possessing firearms. The brief contends that, due to Rahimi’s implications for other provisions of federal criminal law, the Supreme Court should consider the issue expeditiously. Additionally, the brief argues that Rahimi creates a circuit split—five circuit courts held (g)(8) constitutional before the Bruen holding, and the Third and Eighth Circuits did so in a way that is consistent with the Bruen analysis (by weighing historical support for (g)(8) when considering the Second Amendment’s textual scope).

Next, the brief argues that Rahimi is “profoundly wrong.” The brief asserts that, while many of the historical laws restricting “dangerous” persons are repugnant under modern standards, they nonetheless prove that this country has a historical tradition of disarming those considered dangerous. The brief also argues that surety laws should suffice as a historical analogue for (g)(8) because they had the effect of disarming individuals who posed a foreseeable risk of violence. Finally, the brief asserts that individuals prohibited from possessing guns under (g)(8) pose a particularly serious threat. The brief notes that a 2021 study showed that (g)(8) was associated with a 27% decrease in intimate partner homicide.

Brief of Tarrant County Criminal District Attorney

 This brief argues that Bruen and Heller hold only that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms for self-defense,” and that the Fifth Circuit erred in two ways in applying those holdings. First, the Tarrant County District Attorney contends that domestic abusers fall outside of “the people” protected by the Second Amendment because they are not “law abiding” or “responsible.” Second, the brief argues that domestic abusers use guns for harm and intimidation rather than self-defense, and that those uses are not protected by the Second Amendment.

This post is the second in our mini-series highlighting recent law student notes on firearms law topics (see the initial post here).  

William Reach of William & Mary Law School has written a note for the William & Mary Bill of Rights Journal evaluating the continued relevance of Miller, Presser, and a militia-related right to keep and bear arms.  Reach argues that “elements of the collective right live on in Presser and Miller, with profound and relevant influence on modern gun regulation and the readiness of the modern militia member and soldier.” 

Recent Maine Law graduate Cecilia Shields-Auble examines “the shortcomings of Congress’s efforts to close the boyfriend loophole through the Violence Against Women Reauthorization Act and the Bipartisan Safer Communities Act” in a new Comment in the Maine Law Review.  Shields-Auble argues that the Bipartisan Safer Communities Act’s effort to capture dating partners within domestic-violence prohibitions was inadequate and “failed to provide the context necessary for it to be an effective mechanism of determining which relationships trigger the firearm prohibition.”  Instead, Shields-Auble proposes amending federal law to define “misdemeanor crime of domestic violence” as “an offense that is a misdemeanor under Federal, State, Tribal, or local law and involves conduct or a course of conduct intended to exert power and control over the victim.” 

William Reach, The Collective Right Endures: Pre-Heller Precedent and Our Understanding of the Modern Second Amendment, 31 Wm. & Mary Bill Rts. J. 607 (2022)

Abstract:

Prior to 2008, legal scholars who examined the Second Amendment fell roughly into two camps: those who believed “the right of the people to . . . bear arms” only covered state militias, and those who believed it extended to individual citizens.

After District of Columbia v. Heller conclusively established that the “Second Amendment conferred an individual right to keep and bear arms,” discussion of the collective right to bear arms largely receded from public discussion and most litigation surrounding the Second Amendment shifted to define the outer edges of the individual right. But the pre-Heller showdown between these competing viewpoints did not fully encompass or address the nuances of federal precedent. Although the credits may have rolled on the collective versus individual right discussion in the public forum, it left much undiscussed in defining the scope of the Second Amendment.

This Note argues that the dichotomous split in opinion over the Second Amendment pre-Heller led both camps of scholars to overlook particularly important aspects of the collective right that survived Heller in federal precedent through two cases: Presser v. People of the State of Illinois and United States v. Miller. Because Presser and Miller are binding precedent, their holdings still offer insight into our modern understanding of the Second Amendment. Taken together, Presser and Miller clearly and expressly limit the federal government’s ability to regulate firearms when state governments can show a reasonable relationship for militia purposes. These cases essentially give individuals and states a justification to challenge federal assault weapons bans and other regulations, so long as the parties can present a reasonable relationship to a militia function. They also suggest limitations on the reach and extent of the modern individual right by reinforcing traditional areas of state firearm regulation. Although Presser and Miller do not sit neatly within the bounds of the pre-Heller arguments, these cases represent surviving aspects of the collective right framework that have relevant, modern, and practical uses in shaping our use of the Second Amendment.

Cecilia Shields-Auble, What’s Love Got To Do With It? Redefining Domestic Violence to Close Federal Firearm Loopholes, 75 Me. L. Rev. 187 (2023)

Abstract:

Closing the “boyfriend loophole” by expanding the definition of a misdemeanor crime of domestic violence to include the abuse of “dating partners” further entrenches the law into an unworkable quasi-marital framework rooted in an antiquated understanding of domestic violence. The federal firearm prohibition would more effectively target high-risk offenders if 18 U.S.C. § 921(a)(33)(A) were revised to eliminate the quasi-marital framework and reflect a modern understanding of the power and control dynamics involved in intimate partner violence.

This Comment begins by summarizing the emergence of federal domestic violence law and describing the limitations of the Lautenberg Amendment. It then examines the shortcomings of Congress’s efforts to close the “boyfriend loophole” through the Violence Against Women Reauthorization Act and the Bipartisan Safer Communities Act. Next, this Comment argues the merits of abandoning the quasi-marital framework entirely by explaining the already broad support that the institution of marriage receives from the American legal system, the unfortunate historical link between marriage and domestic violence, and the stark reality that relationship status does not determine the risk of domestic violence or femicide. It also contends that current law inaccurately criminalizes domestic violence; specifically, that it makes little sense to separately prosecute stalking and domestic violence when the typical femicide case involves a cyclical pattern of both physical and non-physical abuse, including stalking, intended to exert power and control over the victim. Finally, this Comment concludes by proposing a modernized definition of a misdemeanor crime of domestic violence that sheds the quasi-marital framework, imports the “course of conduct” language from stalking statutes, and extends to both physical and non-physical abuse. It also offers a new standard for evaluating the relationship requirement which courts can implement through jury instructions in the absence of legislative innovation.

One federal law has generated more dissensus in the lower federal courts post-Bruen than any other: 18 U.S.C. § 922(n). That provision bars individuals under felony indictment from shipping or transporting guns or ammunition in interstate commerce or receiving guns or ammunition that have been shipped or transported in interstate commerce. Just over a week ago, a federal court in the Western District of Texas upheld the law, acknowledging that its decision parted ways with two other Western District of Texas decisions striking down the law. These split decisions are emblematic of the discord among district courts applying Bruen’s new historical method for Second Amendment claims.

There have been at least 15 lower court decisions addressing the constitutionality of the statute since Bruen. The chart below shows the breakdown among the 14 district court decisions, with a 10-4 margin in favor of those upholding the law’s constitutionality. In the 15th decision, United States v. Avila, the Fifth Circuit also upheld the provision on plain-error review, a much less searching form of scrutiny applied when a challenger did not raise the argument in the court below. Since that may not represent the view of the court after full consideration, it is not on the chart below. (Indeed, the Fifth Circuit has pending before it an appeal from the first case striking down the law, which Brandon Beck wrote about for this blog; the government recently filed a supplemental brief in that case.)

The disagreement over this law is deeper than just outcomes. Many of these courts disagree about how to apply the Bruen method. For example, while some of these courts consider the first step in Bruen to ask only whether the conduct is covered by the plain text, others (appropriately, in my view) consider whether the person himself is included. The courts evaluate different historical regulations when they review the law and afford them different weight. Even when viewing the same historical regulations, some courts find them analogous while others don’t, without much more than impressionistic reasoning to explain that conclusion. As Joseph Blocher & Eric Ruben detail in their forthcoming Yale Law Journal piece, this method of reasoning analogically across time is badly under-theorized, and particularly under-explained in Bruen. In many ways, 922(n) is a microcosm of the way that lower courts are floundering in trying to grasp consistent principles for applying the new test.

The four district court decisions striking down the law are noteworthy not only because they show Bruen’s disruptive effect, but also for how novel they are. Section 922(n) has a predecessor in one of the earliest federal firearms laws, the Federal Firearms Act of 1938, which barred those under indictment for crimes of violence from shipping or transporting firearms. The provision has existed, in largely its present form, since the 1960s. Yet, until September 2022, just three months after Bruen, not a single federal court had declared the law invalid (many had upheld it). The law survived for over 80 years before Bruen came along. In a five-month period after Bruen, four federal courts concluded the statute violated the Second Amendment.

It’s hard to understand why 922(n) has generated so much divergence. As I document in my forthcoming DLJ article, it is by no means the only gun law that has created split decisions. But it has created more decisions on opposite sides of the ledger than any other gun regulation—state or federal—of which I am aware. One possible reason for those diametrically opposed opinions is that 922(n) is a lower-stakes test case for Bruen’s method. It’s one of the narrower gun prohibitions in federal law. It’s doubly limited in coverage and time. First, unlike the unlawful possession laws, it applies only to new acquisitions (or interstate shipments/transport of owned guns) and doesn’t require a person who already has guns to get rid of any. Second, it applies only during the pendency of the charges. Compare that to 922(g)(1), which imposes a lifetime prohibition on not just acquisition but possession of firearms for those convicted of the same crimes that 922(n)’s indictment bar applies to. In somewhere around 100 challenges so far post-Bruen, not one court has declared the much more restrictive law—922(g)(1)—unconstitutional. That may be at least in part because 922(g)(1) is used by prosecutors much more frequently than 922(n). So one explanation could be that lower court judges might be less reluctant to strike down what they view as a rarely used, limited bar on new gun acquisition than a major piece of the federal firearms regulatory regime like the felon-in-possession law.

Whatever the reason, it is clear that lower courts are going to continue disagreeing on the constitutionality of this law until circuit courts weigh in, though the most recent trend appears to be that courts are upholding the law. The Fifth Circuit will soon settle the debate for judges within its jurisdiction, but courts in the Seventh and Tenth Circuits have also struck down the law. Another in the Tenth has upheld the law, as have courts in the Second, Fourth, Sixth, Ninth, and Eleventh Circuits. All of these courts will be called on to weigh in on the question in the near future and, if fractures develop among those circuits, it is not hard to imagine that the Supreme Court will be forced yet again to reckon with the fallout from its new Bruen framework.

In its March 24, 2023 en banc decision in United States v. Minor, the First Circuit wrestled with the application of Rehaif v. United States to Section 922(g)(9) charges – the heart and soul of the federal domestic violence initiative. In a nutshell, 922(g)(9) prohibits the possession of firearms and/or ammunition by a person convicted of a misdemeanor crime of domestic violence. The Supreme Court has upheld this statute in three separate challenges and noted that “[f]irearms and domestic strife are a potentially deadly combination nationwide.” United States v. Hayes, 555 U.S. 415, 427 (2009); see also Voisine v. United States, 579 U.S. 686 (2016); United States v. Castleman, 572 U.S. 157 (2014).

As described in earlier posts here and here, the 2019 opinion in Rehaif requires the government to prove in 922(g) cases that the defendant knew he belonged to the category of persons prohibited from possessing firearms. While this is normally less challenging in felon in possession cases brought under 922(g)(1), because the mere fact of conviction normally suffices to demonstrate such knowledge, it has been more problematic in 922(g)(9) cases where the government must show the defendant was aware that he had been convicted of a misdemeanor crime of domestic violence specifically. The major outstanding question under Rehaif is whether the defendant must know that their prior conviction was classified as a “misdemeanor crime of domestic violence” (MCDV) as defined in 921(a)(33)(A), or whether it is sufficient that the defendant knew their conduct met all the elements or features of this definition (without necessarily knowing that their crime fell within the statutory definition of a MCDV)?

Willie Minor, a habitual domestic violence offender, was prosecuted under 922(g)(9) and found guilty of possessing a firearm after being convicted of simple assault against his wife in Maine. While on appeal, Rehaif was decided and the government agreed to a remand and to re-try the case with jury instructions reflecting Rehaif. At the retrial, Minor was convicted based on jury instructions that required his knowledge of all the elements of (g)(9): that he had been convicted of a misdemeanor offense involving either causing bodily injury or offensive physical contact to his wife. On appeal, the Minor panel vacated the conviction, holding that the jury instructions were in error because the “jury was allowed to convict Minor of knowingly violating section 922(g)(9) without finding that he knew that his assault conviction placed him in the category of persons convicted of a misdemeanor crime of domestic violence….”

To clarify its holding, the panel continued: “[t]o establish that Minor ‘knowingly’ violated section 922(g)(9), the government need prove that he ‘knew he violated the material elements of § 922(g),’ which in this case means that he knew he had been convicted of a misdemeanor crime of domestic violence” (quoting Rehaif).  The Court minimized the repercussions of its ruling, stating that “[o]ur adherence to Rehaif creates no plausible defense for defendants convicted of an express charge of domestic violence.” This ignores the reality that defendants are often allowed to plead to lesser generic offenses, leading the Supreme Court to allow generic offenses (such as simple assault) to serve as predicate convictions for purposes of 922(g)(9). Willie Minor is a prime example of a defendant convicted under 922(g)(9) for a predicate offense not specifically categorized as a “domestic violence” offense under state law.

In a forceful dissent, Judge Sandra Lynch argued that the panel majority’s misreading of Rehaif created a circuit split and noted “the unfortunate consequence of impairing efforts to prevent instances of domestic violence within the jurisdictions which comprise the First Circuit.” In particular, the majority ignored Supreme Court precedent that “a defendant typically is charged only with knowing ‘the facts that make his conduct fit the definition of the offense,’ and not ‘that those facts give rise to a crime.’” Elonis v. United States, 575 U.S. 723, 735 (2015). Per Judge Lynch, by holding to the contrary, the majority imposed requirements that render it difficult to establish that the defendant was aware that a conviction qualified as a misdemeanor crime of domestic violence—a definition that it admits is “quite complex.” Thus the purpose of Section 922(g)9—keeping firearms out of the hands of domestic abusers—is “frustrated by the majority’s newfound rule.”

The Government successfully moved for en banc reconsideration, arguing that Rehaif requires the defendant’s knowledge of the “features” of the underlying predicate offense, but not necessarily that it is labeled a “domestic violence misdemeanor offense.” The panel opinion in Minor, the government argued, would render 922(g)(9) a nullity by requiring the defendant to know that a prior conviction was a MCDV. As Justice Alito noted in his Rehaif dissent, not only did the majority opinion in Rehaif “casually overturn the long-established interpretation of an important criminal statute, 18 U.S.C. §922” but it also imposed an almost insurmountable burden on the government.  Justice Alito further asked, “[i]f the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a ‘crime of domestic violence,’ would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified?”

The First Circuit’s unanimous en banc Minor decision (notably including those judges who were in the panel majority) walks back the difficult requirements imposed by the panel opinion, under the guise of modifying and clarifying “what type of knowledge equates to knowing . . . that a person was in the category of persons convicted of a misdemeanor crime of domestic violence.”  This “modification” is significant:

We hold that if Minor’s knowledge about his prior conviction included everything necessary to satisfy the definition of ‘misdemeanor crime of domestic violence,’ see 18 U.S.C. § 921(a)(33)(A), then, for all purposes relevant here, he knew that he had been convicted of a misdemeanor crime of domestic violence. And that remains true even if he did not know that such an offense had been labeled in sections 922(g)(9) and 921(a)(33)(A) as a misdemeanor crime of domestic violence.

This position aligns with how the government has consistently interpreted Rehaif in 922(g)(9) cases since that decision was issued: to require proof that the defendant knew all facts necessary to satisfy the predicate conviction, but not necessarily that the defendant knew that those facts/features/elements amounted to a “misdemeanor crime of domestic violence” classification.

Even though the jury instructions adopted language from United States v. Castleman, 572 U.S. 157 (2014), the en banc court took issue with the instructions as given and remanded for retrial citing a “material misdescription.”  In a stark example of threading the needle too finely, the court held that an instruction that Minor knew his conviction was “for” causing bodily injury or offensive physical contact did not require a finding that the defendant “used” physical force as required by Section 921(a)(33)(ii).  Accepting the government’s request to provide “clear guidance” should the instructions be found faulty, the court explained that, in its view, “the government would have had to prove beyond a reasonable doubt that [Minor] ‘use[d] or attempted [to] use . . . physical force. . . .’”  The trial court could then explain that  “‘use . . . of physical force’ means intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.”

To this observer, the en banc court struggled to find error where there was none by quibbling with the jury instructions. However, the court’s retreat from a requirement that a defendant be aware that his conviction was classified as a “misdemeanor crime of domestic violence” is a victory that will preserve 922(g)(9) as an effective government tool to disarm domestic abusers.

On April 4, the Eighth Circuit issued a published decision in United States v. Sitladeen rejecting a post-Bruen challenge to the federal ban on “alien[s] . . .  illegally or unlawfully in the United States” possessing firearms.  The decision employed a different “step one” analysis than the Fifth Circuit panel in Rahimi, ultimately focusing on status rather than conduct to determine whether the Second Amendment is implicated.  The decision in Sitladeen also relied heavily on pre-Bruen cases, illustrating the continued relevance of decisions applying Heller and using a textual-historical analysis to determine the scope of the Second Amendment.

The plaintiff, a Canadian citizen and fugitive (subject to an outstanding Canadian arrest warrant for murder), was stopped in Minnesota with 67 guns and a number of high-capacity magazines and indicted for possessing firearms as an illegal alien in violation of 18 U.S.C. § 922(g)(5).  The district court initially denied Sitladeen’s motion to dismiss under the Second Amendment, relying on the Eighth Circuit’s 2011 one-paragraph per curiam decision in United States v. Flores.  Flores held that “the protections of the Second Amendment do not extend to aliens illegally present in this country.”  That decision favorably cited the Fifth Circuit’s 2011 opinion in United States v. Portillo-Munoz upholding 922(g)(5):

Whatever else the term means or includes, the phrase “the people” in the Second Amendment of the Constitution does not include aliens illegally in the United States such as Portillo, and we hold that section 922(g)(5) is constitutional under the Second Amendment.

After Sitladeen appealed to the Eighth Circuit, the Supreme Court decided Bruen.  The appellate panel requested supplemental briefing, in which Sitladeen argued that Bruen required the panel to overrule Flores.  The panel disagreed, holding that Flores’ step-one analysis was consistent with the first step of the Bruen test because the judges there “reached [their] conclusion by considering—consistent with what Bruen now requires—whether the conduct regulated by § 922(g)(5)(A) was protected by the plain text of the Second Amendment.”  The opinion observed that other courts have criticized this approach and argued in favor of “constru[ing] the phrase broadly at the outset of the analysis and then consider[ing] whether history and tradition support the government’s authority to impose the regulation.”  While the panel noted concern that a more probing inquiry into whether the defendant is within “the people” protected by the Second Amendment “might enable some courts to manipulate the Second Amendment’s ‘plain text’ to avoid ever reaching Bruen’s ‘historical tradition’ inquiry,” the judges ultimately read Bruen to essentially confirm the mode of inquiry in Flores.  Therefore, the panel found itself bound by Flores’ determination “that unlawful aliens are not part of ‘the people’ to whom the protections of the Second Amendment extend,” and rejected Sitladeen’s Second Amendment challenge.

Sitladeen also argued that 922(g)(5) is invalid under the Fifth Amendment’s equal protection clause because it treats illegal aliens differently from citizens with respect to the right to keep and bear arms.  The panel applied rational basis review—rejecting Sitladeen’s argument for heightened scrutiny—and concluded that “there is a rational relationship between prohibiting unlawfully present aliens from possessing firearms and achieving the legitimate goal of public safety.”  Finally, the panel rejected various challenges to the sentence imposed by the district judge.

The most notable aspects of Sitladeen are its focus on status rather than conduct at Bruen “step one,” and its decision to follow pre-Bruen circuit precedent finding certain individuals outside the scope of the Second Amendment based on their status alone.  The Fifth Circuit panel in Rahimi, by contrast, read Bruen to endorse an expansive definition of “the people” covered by the Second Amendment.  That decision held that the reference to “law-abiding, responsible citizens” was “shorthand” covering only the presumptively-lawful regulations listed in Heller (laws regulating “groups that have historically been stripped of their Second Amendment rights”).  Rahimi thus largely embraced the view espoused by then-Judge Amy Coney Barrett in her dissent in Kanter v. Barr: that the “political community” comprising those with Second Amendment rights is broad, and “the question is whether the government has the power to disable the exercise of a right that they otherwise possess, rather than whether they possess the right at all.”  Sitladeen, by contrast, holds that courts are still required to begin with a threshold textual analysis of “the people” who possess Second Amendment rights, and that the category of those who do not possess such rights may be broader than those the Founders disarmed. 

The approach adopted in Sitladeen has certain advantages.  First, it would be analytically awkward for Bruen to set out a two-step test (almost every judge to apply the decision has divided it into two inquiries), but then require as the substantive element of each step an examination into the same historical evidence.  It’s hard to see what role the first step would play, and Bruen clearly mandates some initial determination of whether “the Second Amendment’s plain text covers an individual’s conduct.”  Second, it’s tough to square Heller’s discussion of “the people” as comprising “the political community” with a history-only approach.  For the proposition that “‘the people’ . . . refers to all members of the political community,” Heller cites to the Court’s 1990 decision in United States v. Verdugo-Urquidez.  Verdugo-Urquidez dealt with the question of whether and how the Fourth Amendment applies to actions against aliens outside of the United States, and it required courts to assess whether an illegal alien has “substantial connections” with the United States that give rise to Fourth Amendment rights.  As described in a 2011 law review article, courts have taken different approaches when applying Verdugo-Urquidez to Fourth Amendment claims by illegal immigrants. 

The larger point is that, in the Fourth Amendment context, courts often perform a detailed analysis of an illegal alien’s status (whether and how the individual entered the United States, and for how long) to determine whether the constitutional protection applies.  Given Heller’s reliance on Verdugo-Urquidez, it’s difficult to read that opinion, and Bruen’s affirmation of it, as prohibiting broader status-based exclusions (not directly rooted in historical tradition) in the Second Amendment context.  This is especially true when one considers that alienage-based restrictions on firearm possession were rare or nonexistent at the time of the Founding.  If anything, Verdugo-Urquidez suggests a default rule of exclusion for illegal aliens, coupled with an examination of whether the defendant’s specific factual circumstances bring him or her inside the Second Amendment’s scope.  Pre-Bruen appellate decisions occasionally employed this very analysis, with the Seventh Circuit holding in 2015 that an illegal immigrant was within “the people” protected by the Second Amendment because he had lived in the country for over 20 years, developed family and social connections, and attended public schools.  In Meza-Rodriguez, the panel ultimately held that “Congress’s interest in prohibiting persons who are difficult to track and who have an interest in eluding law enforcement is strong enough to support” 922(g)(5)’s constitutionality.

Sitladeen is also notable in following pre-Bruen precedent (Flores and Portillo-Munoz) to decide the case at “step one.”  As Jake Charles has written, it is somewhat odd that Rahimi failed to even mention the 2011 decision in Portillo-Munoz (a prior precedential decision from the Fifth Circuit)—even as the Rahimi panel grounded its conclusions in the very case (Heller) that Portillo-Munoz purported to apply.  This indicates a brewing circuit split about whether pre-Bruen cases are still good law to the extent they analyze the textual-historical scope of the Second Amendment.  Rahimi squarely presents the issue, and it’s one of the reasons I expect the Court to grant certiorari in that case.

One other interesting aspect of Sitladeen is that the district court relied in part on Sitladeen’s prior firearms-related convictions, under Canadian law, to depart upwards in sentencing (these included “possession of a prohibited or restricted firearm with ammunition, possession of a firearm contrary to a prohibition order, failure to comply with a probation order, carrying a concealed weapon, and assault causing bodily harm”).  As the panel opinion describes:

Because Sitladeen’s criminal record in Canada included “erratic and violent behavior and multiple illegal firearms possession convictions,” the court determined that the appropriate criminal history category was III, not I.

The Eighth Circuit rejected Sitladeen’s sentencing challenges, but it’s interesting to consider more broadly the issue of judicial reliance on firearms-related convictions in countries with stricter gun regulation to impose a higher sentence on a criminal defendant prosecuted and convicted in the U.S. (a similar issue may arise when a judge in a state with little gun regulation, such as Montana, sentences a defendant with a prior firearms-related conviction in a state with much stricter gun laws, such as California).  Prior state-law convictions are generally counted when calculating a defendant’s criminal history category, and the sentencing guidelines authorize upward departures based on “[p]rior sentence(s) not used in computing the criminal history category,” such as foreign or tribal convictions.  To the extent these prior convictions simply illustrate a lack of respect for the law, one would imagine they should carry similar weight as other state- or foreign-law convictions.  And some judges, such as a district judge in Maine in a 2008 case, have found that Canada’s stricter gun laws support sentencing a defendant convicted of an offense involving illegal transportation of firearms into Canada with the base offense level set forth in §2M5.2 (which “assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States”).  But this is an area where judges have a great deal of discretion and may take different approaches, depending upon their own view of the “wrongness” of foreign criminal conduct and the propriety of stricter gun regulation generally.