The Right to Arm Bears - part two
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Well last week the other shoe dropped. After ruling a week earlier that the fed cannot under present law outlaw bumpstocks which -- by any ordinary interpretation -- make most any gun into a machine gun, the Supreme Court finally issued it’s decision in United States v. Rahimi. That’s the case I wrote about last time where a drug dealing wife abusing gun maniac was asserting his constitutional right to bear arms as a defense after being indicted in federal court for possessing a firearm while subject to a domestic violence restraining order; this violates a federal statute that prohibits such an individual from possessing a firearm. I spent a good part of Friday poring through the 99 pages of the Supreme Court ruling in Rahimi.
There wasn’t any dispute that Mr Rahimi fell afoul of that prohibition; he actually pleaded guilty, raising only the Second Amendment right to keep and bear arms defense against the law itself. The only Supreme Court issue was whether the Second Amendment gave him a free pass, which the federal appellate court had ruled it did based on the Bruen decision which we discussed previously! I mentioned last time that thanks to the extreme conservative shift of the Supreme Court to the far right virtually all of the gun control laws in the United States were in jeopardy, but that I predicted Rahimi would be a bridge too far for even for this Supreme Court. And I was right, but the matter deserves more attention because in fact all of the gun control laws in this country remain on a thin edge.
I’ve always believed the for the most part the media doesn’t know how to report law cases, and this one goes a long way to proving that point. From the brief newspaper headlines, one could erroneously conclude that eight justices voted for the government and to uphold the law and only Clarence Thomas disagreed and that reasonable gun control might resume. Sadly that’s a very distorted picture. Indeed eight justices signed on a rather anodyne opinion authored by Chief Justice Roberts, but five justices authored what are called concurring opinions (Justice Kagan joined in the opinion by Justice Sotomayor) and Thomas wrote a lengthy dissent; only Alito was silent, but from his questioning at oral argument his sympathies -- if not his vote here -- probably lie more with Thomas. (He wondered -- aloud -- if perhaps it might be too easy for wives to get protective orders against husbands resulting in a gun possession ban.)
I thought it could be of interest to talk about how different Justices approached the problem, and I believe you’ll see that this “no-brainer” case in fact foreshadows years of confusion and argument about guns in this country and provides not one bit of comfort to those of us concerned that the Second Amendment has been twisted into an insane jumble.
Chief Justice Roberts assigned to himself the job of producing an opinion his fellow Justices could endorse. He prefaces his legal discussion in Rahimi with this paragraph:
We have held that the right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” Derived from English practice and codified in the Second Amendment, the right secures for Americans a means of self-defense. The spark that ignited the American Revolution was struck at Lexington and Concord, when the British governor dispatched soldiers to seize the local farmers’ arms and powder stores. In the aftermath of the Civil War, Congress’s desire to enable the newly freed slaves to defend themselves against former Confederates helped inspire the passage of the Fourteenth Amendment, which secured the right to bear arms against interference by the States. As a leading and early proponent of emancipation observed, “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.”
Aside from the fact that the paragraph is replete with disputable legalisms, it ignores a major distinction between government seizing weapons from an entire community and gun possession laws affecting individuals who have a demonstrated propensity for harming other people. It’s one thing for the English King to say only Protestants and never Catholics can have guns, and in my mind quite another to say individual felons or certain mentally ill people as a subset of a larger general population cannot possess firearms. As I predicted, after the Bruen case ruled that the government could only prohibit gun ownership in situations have an historical parallel going back to constitutional days , Rahimi would hem and haw around reality to find a way to take his guns away based upon some contrived historical analysis, and I believe that’s precisely what Roberts did: “The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” His discussion makes it fairly clear that the case really only upholds keeping Mr Rahimi in prison and only under the most narrow and limited circumstances authorizes any other limitations on gun ownership. On the one hand, “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” But on the other, “While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, we note that [the statute in this case] applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” In other words, we’re basically only deciding that Mr Rahimi can’t have a gun and not telling the legal (or public) world where else gun bans might be OK.
Roberts makes clear “we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” (My italics.) All this means, then is that gun suspension must be taken upon a case by case basis, requires a court hearing (not a general ban on violent mentally ill people or felons), must endanger physical safety (it’s not enough just to scare the crap out of someone) and must be temporary! And that’s all -- no more, no less -- that the eight of nine agreed upon. Feel better now?
Justices Sotomayor and Kagan who both were in the minority in the Bruen case were pleased that the Court loosened the ties of the historical inquiry Bruen demands, but “[t]hat being said, I remain troubled by Bruen’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today.”
Justice Gorsuch on the other hand does his own deep dive into arcane legal history (which even Clarence Thomas derides in his dissent) and decides that ancient surety laws and a few occasional limitations on “going armed” give enough history to keep Mr Rahimi in prison, but presumably not enough to uphold many other gun laws. Balancing the Gorsuch and Thomas opinions provides a sharp illustration of the fundamental flaw in historical originalism.
Then Justice Kavanaugh attempts to describe how he sees “the proper roles of text, history, and precedent in constitutional interpretation.” What struck me as somewhat odd was this statement: “The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood. . . . . As a general matter, the text of the Constitution says what it means and means what it says.” I guess Justice Kavanaugh has carved out an exception where the Second Amendment begins, “A well regulated Militia, [is] necessary to the security of a free State . . .” He goes on the lump together freedom of speech with freedom to carry a loaded weapon as equally important rights, therefore requiring as persuasive a reason to limit gun possession as to shut up political thought or a free press. Sorry, I just can’t buy into that.
Justice Barrett offers a brief discussion of the limits of originalism as the basis for interpretation. “To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’ And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ’use it or lose it’ view of legislative authority. Such assumptions are flawed, and originalism does not require them”. There may be hope for her yet!
Justice Jackson, the court’s newest member and not part of the Bruen court, laments where the court has gone in this area and is most eloquent.
“When this Court adopts a new legal standard, as we did in Bruen, we do not do so in a vacuum. The tests we establish bind lower court judges, who then apply those legal standards to the cases before them. . . . . The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. It isn’t just that Bruen’s history-and-tradition test is burdensome (though that is no small thing to courts with heavier caseloads and fewer resources than we have). The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars report that lower courts applying Bruen’s approach have been unable to produce “consistent, principled results,” and, in fact, they “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them. Given this, it appears indisputable that, after Bruen, “confusion plagu[es] the lower courts.
. . . .
“I concur in today’s decision . . . . But, in my view, the Court should also be mindful of how its legal standards are actually playing out in real life. We must remember that legislatures, seeking to implement meaningful reform for their constituents while simultaneously respecting the Second Amendment, are hobbled without a clear, workable test for assessing the constitutionality of their proposals. And courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. The public, too, deserves clarity when this Court interprets our Constitution.”
I won’t spend a lot of time with Justice Thomas’ sole dissent, thirty-two pages, of dense historical recounting of government gun restrictions both before (in England and the colonies) and after ratification, except to note that there is much debate among real historians about the quality, horoughness or accuracy of Justice Thomas’ historical analyses. What brought me up short, frankly, was his penultimate paragraph:
This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment. Assuming C. M.’s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime. It cannot.
Do I read this wrong? In his conclusion hasn’t he just undercut his argument about the need for historical analysis with the simple proposition that [in his opinion, anyway] we don’t need to narrow the Second Amendment as this federal statute does but can instead just rely upon long-standing criminal law to provide the needed protections. For me, I respectfully dissent from that view, but I also see here an implicit concession that all of his historical sleight of hand looks more like window dressing for affirming a most conservative agenda.
I realize I’ve rambled and hope I haven’t put you all to sleep but felt someone, even with our tiny reach, needed to point out two things: the extreme weakness of the Rahimi case and how truly fractured and dysfunctional our Supreme Court has become. I promise a new topic next time, but in the meantime as always I’d be delighted to receive any feedback, including criticisms -- that’s what frank conversation can be all about -- and even suggestions for future discussions. The main point, however, is to encourage civil conversation between you and your friends on what I see as important social and political issues. Please enjoy and invite your friends to join our slightly expanding circle.
Arne Werchick, after fifty years as a litigation attorney, pro tem judge, law writer and lecturer, former Presiding Arbitrator of the State Bar of California, and past president of the California Trial Lawyers Association, moved to Hawaii and lives with his wife Ruth and their rescue dog Topaz. He can be contacted at liberalmind@werchick.com.
