By Chuck Michel
The Supreme Court has decided to hear another Second Amendment case next term; United States v Rahimi. The decision to hear Rahimi comes just one year after SCOTUS decided the game-changing Bruen case. That might be good news for Second Amendment supporters…or not. Second Amendment Law Center is already hard at work putting together an amicus brief campaign to make sure the decision in this case helps advance Second Amendment rights.
The Rahimi case involved a federal criminal prosecution under section 922 of the United States Code. A unanimous Fifth Circuit Court of Appeals panel struck down the law, holding that:
Bruen forecloses any . . . analysis [of salutary policy goals] in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted.”
Since the government lost the case in the Court of Appeals, it asked SCOTUS to hear the case. Rather than let a 2A win stand, SCOTUS accepted the case for review. That itself is not a great sign.
So now the Supreme Court will reconsider whether 922(g)(8)‘s bar on people subject to restraining orders possessing firearms is constitutional under Bruen‘s history and tradition-focused test for Second Amendment challenges. In the process, the Court will likely have to decide whether and when an entire class of people can be prohibited from possessing firearms without consideration of individual circumstances.
This case could affect other prohibited classes of people: cannabis users, non-violent felons, people with civil restraining orders, and certain misdemeanor convictions. It doesn’t help that Mr. Rahami is not a sympathetic character and is certainly not a poster child for Second Amendment rights. As the saying goes: bad facts can make bad law.
While the Supreme Court’s ultimate ruling in Rahimi will likely have to directly address whether the government can bar certain classes of people from possessing firearms, there is more to it than that. Beyond that specific issue, the ruling in Rahimi may help settle some outstanding issues regarding how the Bruen test for evaluating the constitutionality of gun laws should be applied. How the Court settles those issues is the concern.
Remember that in the Bruen case, the central issue was whether the government could require people applying for a permit to carry a firearm in public to show a special need beyond simple self-defense. But in deciding that, the Court clarified the test that should be used to determine the constitutionality of all gun laws. It took an “originalist” approach, requiring the government to show that there was a history and tradition of regulations like the one being challenged in order for the modern law to be upheld.
In other words, the test now is designed to determine whether in 1791 the Founding Fathers would have tolerated a law like the modern one being challenged. Governments attempting to justify gun bans have already twisted the Bruen test to make it easier for pre-inclined courts to uphold gun bans. Some clarification would be helpful to shut down the games the government is playing in other Second Amendment cases.
But the Rahimi case could be dangerous to Second Amendment rights. Anti-gun owner advocates hope the Court will reverse the Fifth Circuit’s ruling. They believe that because they are reluctant to give someone like Mr. Rahimi back his gun rights, Justices Barrett and Kavanaugh and Chief Justice Roberts may join Justices Kagan, Sotomayor, and Jackson in upholding the law. How they could do that without limiting the Bruen analysis and making the Second Amendment weaker is the big question.
That’s where the efforts of the Second Amendment Law Center come in. Mr. Rahimi is represented by the federal public defender’s office. That office has no particular expertise in 2A litigation. Amicus briefs are going to be critical.
The case will probably be argued before the Court in November or early December. Although requests to extend the briefing schedule could affect the deadlines. Opening briefs in Rahimi (the government’s brief and any supporting amicus briefs) will likely be due in mid-late August. Rahimi’s response and supporting amicus briefs would be due one month later, in September. 2ALC is already working to round up amicus participants and draft amicus briefs.
C.D. “Chuck” Michel is Senior Partner at the Long Beach, California Law firm of Michel & Associates, P.C. He is the author of California Gun Laws, A Guide to State and Federal Firearm Regulations now in its 10th edition for 2023 and available at www.calgunlawsbook.com.
Relying on the courts to protect and defend Constitutional Rights, is just as dangerous as relying on politicians. You deserve the Tyranny…You allow. Pure, Plain, and Simple.
Coming from someone in a safe free state your words ring hollow.
So stop whining and move.
Did once they follow and keep making things worse so may as well stay and fight.
2A forces do need to take this seriously and file plenty of well-researched amicus briefs, but I’m not as pessimistic about the case as Mr. Michel.
First, overturning a federal statute as unconstitutional is almost always going to carry a higher likelihood of SCOTUS review, especially if the SG’s office requests it. The fact that they granted cert on this one isn’t too surprising to me.
Second, I don’t see ACB as floppy on this issue. Recall she wrote a dissenting opinion (as a circuit judge) in a case challenging nonviolent felony convictions as disqualifying, in which she indicated there wasn’t any historical precedent for such a broad brush rule. Merely being under a DRO as disqualifying would seem to be far easier for her to overturn.
Similarly, Kavanaugh seems to have found his feet on 2A cases, and I don’t see him retreating from Bruen.
If those hold, Robert isn’t going to want to be in the minority, as if he is Thomas gets to assign the opinion, and one would think he’s assign it to himself.
So yes, while this is going to be a harder case — Ramini is not a sympathetic defendant — I don’t think it’s time to panic.
Do you see this being decided along due process lines?
The hard reality for the left is that wife-beating may have been frowned on by the church and community, but was absolutely legal at the founding of this country…
It’s allegedly where the term “rule of thumb” came from, if the Interwebs are to be believed.
Ah, yes, a green switch the diameter of a man’s thumb.
And I bet he made her go and cut a fresh one. And it better be one thumb wide or else… 🙂
Didn’t Kavanaugh write a Bruen concurrence to clarify that it was still hunky-dory to continue to deny rights to felons? I’m not as optimistic that the strict law & order justices will agree with this. OTOH, Miranda was an evil character, and that had a good outcome for rights.
Miranda was just another bleeping thing to make people lazy. Know your rights don’t let the government tell you what they are. Shut the &^%$ up and get a lawyer.
The 2A was determined by the USSC to be an Individual Right in the no brainer Heller decision.
Likewise another no brainer would be if the court ruled Gun Control is according to Bruen’s beloved Historical Anologies Rooted in Racism and Genocide. Perhaps that would lead to abolishing Gun Control…After all Common Sense Gun Control is Abolishing Gun Control like its sidekick Slavery.
The ban on felons (at least violent felons) being disarmed does have some historical bases in pre-1789 Anglo-American jurisprudence and legislation. (That explains Kavanaugh’s position.) But as ACB has written, disarming nonviolent felons is a stretch as the historical support there is iffy at best.
Disarming people not convicted of ANYTHING has zero historical support, other than arguably the laws disarming blacks and Catholics (and citing those as precedent is, shall we say, counterproductive). If the Bruen majority stands its ground and affirms in Ramini, “red flag” laws are DOA.
Counterproductive is putting all aspects of The Second Amendment under the microscope while Gun Control and its Historical Rot skates on by.
Counterproductive is doing the divide and conquer disruption of the enemy for them and dressing it up as history of genocide and slavery and nagging any who disagree. And why would I ever be concerned with you finding me? Your words exceed your ability.
void…I hate to rain on your parade of blatant lies but an ignorant twit like you is easy to find. Anywhere there is a toilet someone forgot to flush there you are floating around saying nothing, doing nothing but stinking up America.
By “counterproductive,” I meant that citing those laws as “historical analogues” under the Bruen test as somehow justifying DRO’s as disqualifying is poor advocacy, as the riposte to such argument is obvious.
Were gun control laws in 18th-20th century America racist? As I have often stated, in many cases (but not all), of course they were. But pointing that fact out isn’t some mystic incantation that will make today’s unconstitutional restrictions on 2A rights magically go away if you recite it enough, as Lil’ Debbie apparently believes.
Actually getting rid of those laws requires legal and legislative strategies. The legal prong involves litigating test cases, and that requires effective legal analysis.
As I have challenged her many times in the past, I defy Lil’ Debbie to detail how her “legal analysis is meaningless — just point out the racist history of gun control” strategy would work, or how it would actually achieve anything concrete. OTOH, look at the results being obtained by groups like the FPC, which are following the “effective legal analysis and advocacy” playbook.
Debs hate to flip your script but only pointing out your results. Call it lies if you like but do try to have a civil and productive discussion with LKB who unlike you actually seems to grasp the situation. LOL who am I kidding you will fuck it up as normal.
LKB…And I challenged you before to grow a pair and Define Gun Control According to its History of Rot. In other words when you see or hear “Gun Control” you Define Gun Control…Just don’t sit there like a bump on a log, your silence is what provides standing for Gun Control.
I have to ask…What specifically are you afraid of? The kkk, nazis, etc? Or are you knowingly or perhaps unknowingly protecting their Gun Control agendas? Clear the air.
If Slavery can be Abolished then so can its sidekick Gun Control whether in a court or through public opinion. Like all of those far less Racist Statues and garage door nooses that were removed by public opinion. And while that was happening the biggest symbols of Racism remaining in America skated by namely the political party that owns the legacy of Slavery and of course Gun Control. So how can America truly rid itself of Racism with the democRat Party and Gun Control still hanging around? Answer please.
I ask you to ask 10 people to Define Gun Control to see any answers get remotely close to The History of Gun Control. I’ve asked your blowbag pals on this forum to do the same and not one ever got back…Maybe a wise owl like you can do better?
I have’t asked 10 people because I think they will define gun control based on what gun control laws are being proposed today in 2023.
But starting today I will ask at least 10 people to “Define Gun Control” to prove my point. After they give their answer I’ll ask them about the history of gun control and if they believe current proposed laws are based on racism. I’ll then ask them if calling out it’s racist roots will change any gun-grabber’s minds on taking everyone’s guns.
void…Not to worry you pathetic lowlife pos…I won’t call LKB a whore.
cato…Then stfu and go do it…talk is cheap. BTW…Not about changing gun grabber opinion because they are stuck on stupid like you. It is about changing public opinion. Now report back in detail butthead when you are done asking 10 people and not one second sooner.
Hmm I insult your attention seeking behavior and lack of ability to process reality and you just do personal insults……are you actually a botscript with limited human input? Actually kinda hoping so as the alternative is a bit depressing.
The Illinois AWB case at CTA7 is going to boil down to Judge Easterbrook, who is a strange duck. (The other two judges on the panel were an Obama appointee and a PDT appointee, and their views on the case are pretty transparent and predictable.)
It *should* be an easy decision, given the high bar for finding “abuse of discretion” in entering a preliminary injunction, but Easterbrook views himself as a Delphian Oracle. The only way I see CTA7 going our way is if they are worried enough that SCOTUS will step in.
(We should have some sense of how SCOTUS views things shortly, as the administrative stay in VanDerStok [5th Circuit “frame or receiver” case] expires at 5PM on Friday. Unless SCOTUS votes to stay the judgment pending appeal before then (Fifth Circuit largely refused to do so), the three ATF regs in that case are off the books.]
WRT Benitez, I spoke with Cody W a couple of weeks ago, and he indicated that Benitez recognized at a hearing recently that he is overdue in issuing rulings in a number of cases (AWB case has been fully briefed since mid March). Cody suspects that he is personally reading all the background / historical material, rather than rely on digests of it from the briefing.
My guess is that we’ll see something from him this month.
(previous comment should have been to the subchain below — sorry)
As far as ‘Lil Debbie’s “challenge,” unlike her I actually *am* doing various things on the 2A front. (Attorney-client privilege precludes me from posting them publicly.) But I can say that just doing my bit here over the years to educate TTAG readers on the legal developments and the nuances thereof (and thereby helping empower them to be more effective supporters of 2A) has done a lot more to help move the ball than ‘Lil Debbie’s robotic postings.
As far as “define ‘gun control,'” I define it as anything relating to firearms that violates the Second Amendment.
I’m honestly surprised that anyone even reads Debbie W.’s posts anymore. i just skip right by them , as i know they’re going to be the same racism garbage over and over again.
Yes, we know that racism is a component of gun control. No, it isn’t always relevant to the discussion at hand.
Debbie
Yesterday and today I asked 12 people to define gun control.
Almost everyone said gun control is/are the state and federal laws that control who may own a gun. Four said the right to own guns is not absolute and assault weapons should be controlled/illegal. All said there are people that should not have access to guns (criminals, felons, kids, mentally ill).
My new neighbor from CA surprised me. He seems very liberal but said he bought a shotgun because of the BLM riots. He’s not a big fan of ARs but wants to shoot mine.
No one but my neighbor mentioned race in any way. One guy I asked is black. When I mentioned past gun laws were racist, no one was surprised. No one believed blacks or other minorities were unable to buy guns now. None thought past history had much influence on proposed laws now and some said current laws should be enforced.
9 guys 3 women, some own/owned guns. No one thought gun control is a big issue. They didn’t think gun rights (here) were under threat. Half mentioned NE recently passed constitutional carry, a couple mentioned that constitutional carry is allowed now in more than half the states. They believe gun rights are moving in the right direction in the US.
One guy lives in IA (Omaha borders IA), he thinks it sucks that IA does not allow SBRs. I mentioned IA also does not allow binary triggers and he thought that was fucked up. We worked together before I retired and talked before how it sucked I couldn’t bring my toys to his farm and shoot. IA did take silencers off the banned list not too long ago.
The other people I talked to don’t think about gun laws being threatened much. Here in NE its easy to purchase guns, SBRs, silencers, etc. the gun owners I spoke to don’t worry about having their gun rights taken away because of racism or any other reason. Most don’t think NE would allow it, I mentioned gun rights are in the NE constitution. They believe NE would tell the feds/ATF to fuckoff.
None of them think like Deb that everything is race based. None thought calling anyone ignorant/illiterate on the history of racist gun laws would change anyone’s mind.
12 out of 12 think Deb is a jizz gurgling skank.
Thanks for your analysis LKB, much appreciated. It is going to be a very interesting next session for SCOTUS. Maybe Illinois AWB (not looking good at the 7th 3 judge panel I have read) or some other state AWB will be heard by them also? Interesting that Judge Benitez has not issued his ruling on California AWB yet too. I have lots of popcorn ready.
“Interesting that Judge Benitez has not issued his ruling on California AWB yet too.”
A week, or 10 days ago, saw a podcast noting that Benitez consolidated several cases for argument in early August. IIRC, the judge is to consider filings as relates to injunctions, and possibly moving, at the same time, toward trial.
Cannot resurrect the video I watched.
Thanks Sam I Am! I had not seen that one. I usually check in with Washington Gun Law and Four Boxes Diner on You Tube almost daily.
Aaaak. Meant to reply to Grumpster but it went in above. scroll up to see it.
I sure did LKB and thanks again for the insight!
RE: “Rather than let a 2A win stand, SCOTUS accepted the case for review. That itself is not a great sign.”
That’s right take the case and push the misfits up into a pile and see all of them as one instead of as individuals…Just cite the insanity found in the Historical Anologies that clearly Define Gun Control and flush it once and for all.
Lol all for courtroom drama now? Cool story attention whore.
it was legal to ‘discipline’ your wife and children at the nation’s founding, as the husband saw fit.
Back-talk got her ‘five across the face’ and there was nothing she could do about it…
still…it was not looked upon favorably…
void…You can be found.
“You can be found.”
Are you making a threat? 🙁
LOLOL! Playing up to the stereotype, I see!
No one could make this up. Hilarious.
oldshtgeoff…I do not make threats…I make promises to perverts like you and your buttbuddy void.
BTW…Are your trying to say in a roundabout way you wish you could beat up on women? Or perhaps you are just getting your jollies via your sick imagination again? Please advise you pervert.
johnnyboy…Shouldn’t a bigot like you be at a kkk rally burning crosses? White trash power!
“BTW…Are your trying to say in a roundabout way you wish you could beat up on women?”
YOU are the one who brought up laws at the nation’s foundation, cupcake :
“Just cite the insanity found in the Historical Anologies…”
You best not hope you get what you wish for, for it will be a frequent and painful lesson… 🙂
And? Oh right nothing, yeah sounds about right coming from one speaking beyond their ability. You really don’t like being called out on your bullshit it brings out your homophobic side there toots.
RE: oldshtforbrainsgeoff…”YOU are the one who brought up laws at the nation’s foundation, cupcake :
“Just cite the insanity found in the Historical Anologies…”
You best not hope you get what you wish for, for it will be a frequent and painful lesson… ”
oldsht if you want to quote me then quote all I said and not just what fits your deranged narrative…
I said…”Just cite the insanity found in the Historical Anologies that clearly Define Gun Control and flush it once and for all.”
“Laws that clearly define Gun Control.” That means fruitcake You pulled beating up women and children out of your behind all by your lonesome. Get help, mental help before you get a painful life lesson.
That is attention whore Deb and you fit the description with your guntalking misdirection. And damn you just copy and paste your rant don’t you, absolutely no analytical thought or constructive input.
Hopefully they’re taking this because they’re pissed at how lower courts as well as governments are practically spitting on Bruen.
hope kills.
Be nice if it could kill ‘Red Flag Orders’… 🙂
“But in deciding that, the Court clarified the test that should be used to determine the constitutionality of all gun laws.”
There is only one constitutional statement regarding gun laws: “shall not be infringed”. There is no room for evaluating “process and procedure”, before reaching the direct constitutional question: infringement.
Nothing in the constitution, or amendments, provides for the judiciary to rule that “No amendment to the Constitution is absolute”. Such a stance is predicated purely on popular politics, not direct application of wording/legal principle. The very idea that the judiciary can re-write the explicit words of the Constitution is abhorrent to the Constitution, and/or the clear intent of the Constitution to fence-in government….INCLUDING THE JUDICIARY, which is itself, “government”.
There is only one means to alter the Constitution, and that is formal ratification of amendments…..legal beagles notwithstanding.
“There is no room for evaluating “process and procedure”, before reaching the direct constitutional question: infringement.”
Silly you with your sensibility… :0)
“Silly you with your sensibility… :0)”
It’s the bane of my life.
Oh man not I’m holding my breath waiting on another SCOTUS nod. My rights don’t rest on 9 unelected bureaucrats!
We don’t want elected justices for this highest court. Else the candidates would be kissing babies for photo ops and making promises to garner the usual ten votes from each dead Democrat.
We want the wheels of SCOTUS replacement to turn slowly, and to go through an rigorous constitutional process that isn’t subject to the current whims of the
Dominionhuman voters across the nation.“Oh man not I’m holding my breath waiting on another SCOTUS nod. My rights don’t rest on 9 unelected bureaucrats!”
True enough, but continued ability to legally exercise your rights is entirely subject to the whim of politicians and bureaucrats. Defying politicians, judges, and administrative bureaucrats can carry severe, even lethal, consequences.
Don’t the justices have to vote on which cases SCOTUS reviews?? If so, can we find out who voted to review the case? Wouldn’t that give us a better sense of what to expect??
Or am I misunderstanding how SCOTUS works??
I’m with Roymond, who commented above. Hopefully the court spanks all of the recent challengers to Bruen and sets things on a firm foundation going forward.
I do believe it’s a majority vote that determines if a case is heard or not, but I seriously doubt the results of how someone voted leaves the room the vote is counted in…
A search of the interwebs revealed nothing about who voted for what. However, for what it’s worth, most lefty sources believe the Fifth Circuit’s decision will be overturned (of course), while those on the right just reported the facts.
I guess we’ll see next year.
Only four votes are needed to grant certiorari.
Correct. I was about to answer, but you already did.
4 to grant, 5 to decide a case.
So, they better not vote to grant cert. unless they are certain they have the 5 they need to win solidly locked-up…
Geoff:
The conventional wisdom is that the justices don’t grant cert unless they want to reverse and know their side can “get to five.” That is not absolute, however (e.g., where there is a circuit split), and especially where the SG’s office is making the cert request. SCOTUS routinely grants cert and affirms.
Here, the three anti-2A justices will almost certainly vote for cert on the hope that maybe they can get Roberts and Kavanaugh or ACB to change their mind and start constraining Bruen. They have nothing to lose.
But you could have ACB voting with them to grant cert because she sees the case as a vehicle to hold (1) the only proper historical analogues are from 1789, not afterwards (see her Bruen concurrence), and/or (2) historical analogues only support disarming violent felons and literal traitors (see her dissent as a circuit judge on the nonviolent felon case).
You could also have people like Alito and Thomas voting to grant cert because they want another chance to say, “we meant what we said,” especially given some of the goofy opinions that have come out (e.g., district court opinions out of Oregon and Washington).
We’ll see next fall.
ds is correct.
https://www.law.cornell.edu/wex/certiorari
From the released Order List dated June 30, 2023:
“22-915 UNITED STATES V. RAHIMI, ZACKEY
The motion of respondent for leave to proceed in forma
pauperis is granted. The petition for a writ of certiorari is
granted.”
They granted cert, and apparently they’re even doing it on our nickel. They waived the fees, and as noted in the article above, Rahimi is being represented by a public defender. Be a helluva twist if they let him come in for free, then give him the bum’s rush, so there’s that.
https://www.supremecourt.gov/orders/courtorders/063023zor_b07d.pdf
Most of the time, their decisions of summary judgments, granting cert, or denying cert, are stated with little or no explanation. However, if you read down through that document, you will find several Statements from various justices, that present their concurring/dissenting analyses regarding some of the cert denials.
Thank You Nero…
Concurring / dissenting opinions on the cert petition decision occur when the cert petition is *denied.* I cannot think of any case where you see those where the petition was granted. (Hypothetically, it might occur if cert is granted, but on less than all of the “Questions Presented” in the cert petition, but again I cannot think of any examples where that has ever actually happened.)
20 States File Supreme Court Brief Supporting Gun Control in Ghost Gun Case…
I’ve not been able to find an instance of a “restraining order in 1791… Protection order legislation was first implemented in the 1970s, and by 1989 all 50 states and the District of Columbia had enacted statutes providing civil remedies for battered women via protection orders. Protection orders have also been called restraining orders, civil protection orders, orders of protection, stay-away orders, protection from abuse orders, domestic violence restraining orders, civil harassment restraining orders, no-contact orders, and anti-harassment orders. The founders would not have any input on this matter other than to reference part two of the 2nd Amendment, “the right of the people to keep and bear arms, shall not be infringed”… No such thing as a protection order, no constraints on convicted criminals after serving time (if you were bad enough to lose your rights you were probably hanged or finished out your life in prison), no drug laws… That should be enough to settle a lot of issues… I think this one can ONLY go to due process which will then put the spotlight on Red Flag laws, convicted felons, drug users, a whole can of worms to be sorted in a single ruling…
Considering someone can get an order of restraint, or no contact order by swearing an affidavit, and getting a likely cooperative judge to sign it.
Never mind such orders are no more than a piece of paper. Sure, if the protectee can get a police response in time to do anything more than write a report and call someone to clean up the mess/remains, it might help prevent injury or death. But nothing in the order is going to prevent someone who really wants to cause harm from doing so.
Next is the due process issue. Say someone is engaged in a support or custody case. What prevents a vindictive person from using such an order to bring the power of the state to bear against the other party? If the person is an actual abusive spouse, or other domestic abuser, should they be released to go continue the abuse, or held until the case is adjudicated? If released, are they no longer considered as a danger? Or is it just more convenient to let them out with or without bond/bail?
Should someone who is later cleared on such charges still denied their rights because they have a record of a protective order against them? How about the felon who has done their sentence and complied with court ordered requirements and punishments? Should a felony conviction and sentence of a year or 2 be a lifetime ban of their civil rights? Some 19YO lose their civil rights, over and above the RTKBA, such as voting rights etc. because they got busted for a burglary or possession of a little dope?
In a sane world Rahimi would be locked up and we wouldn’t have to worry about his gun rights for quite a while. Narcotics dealing, 3 separate ADWs – one on a LEO, you shouldn’t need a possession charge to put this scumbag away.
How does losing a hand, cool the earth?
Ernesto Miranda should have been shot dead long before his council appeared before the SCotUS. That did not invalidate his right to remain silent or right to attorney.
@Grumpster
“Thanks Sam I Am! ”
Sorry to have done such a shoddy job. Thought at the moment I should save the link, then decided not.
@Grumpster
Took another look. The link below is kinda, sorta close to what I saw:
https://gunwatch.blogspot.com/2023/07/judge-benitez-july-18-hearing-on.html
Sweet Sam I Am, appreciate it much.
“Sweet Sam I Am, appreciate it much.”
De-ski, nada-ski.
From the article:
“Mr. Rahimi is represented by the federal public defender’s office.”
Uh, how come none of the Second Amendment advocacy groups have stepped up to finance an outstanding attorney/s to represent Mr. Rahimi in this case? Isn’t that the very reason that those groups ask for donations–and why we support them?
Seems to me that “public defenders” (or legal aid) have an insurmountable conflict of interest: all are funded via government; there are few highly competent/experienced attorneys.
Follow the money:
https://en.wikipedia.org/wiki/Public_defender_(United_States)
On the other hand, the public defenders office **did** get the Fifth Circuit to vacate his conviction, so it’s not like they are taking a dive.
And the federal PD’s office is typically staffed by very capable up-and-comers (often former appellate clerks) who are hungry for the trial experience they get from spending a few years on that job. It’s not at all like the Legal Aid department of many large cities.
Additionally, I suspect that one of the SCOTUS bar heavyweights may pop up and offer to argue the case on a pro bono basis. If one of them did (say, former Solicitor General Paul Clement, who argued Bruen), I believe it would be VERY unlikely that the federal public defenders’ office would decline to allow him to do so. At the end of the day, they owe their client the best defense they can provide, and refusing such an offer would likely be a violation of that duty.
“It’s not at all like the Legal Aid department of many large cities.”
Question: do all the federal PDs get the pay and resources available to the prosecutors? Asking, because I don’t know, not posting a challenge.
Been thinking that whoever employs PDs, those appointed should have all the capability of the prosecuting agency, at the very least. In a best of worlds, every criminal attorney (and firms) should be taxed (call it a fee, maybe) that is used to ensure a PD attorney, or defense firm, cannot simply be out-spent by government (at whatever level).
Sam:
While the federal PD’s are decently funded, no, there’s no way they are going to have the same resources available to DoJ prosecutors. That’s also true for people who hire their own attorneys: unless you are Elon Musk or equivalent, Uncle Sam can always outspend you.
OTOH, the prosecution has to prove its case “beyond a reasonable doubt.” Defense quite literally doesn’t have to prove anything — it just has to do enough to create reasonable doubt for the defendant to skate. As such, the defense doesn’t usually need the same level of resources as the prosecution.
@LKB
“…just has to do enough to create reasonable doubt for the defendant to skate. As such, the defense doesn’t usually need the same level of resources as the prosecution.”
Establishing “reasonable doubt” is, itself, an expensive matter.
Yes, government can outspend any individual; however….
Making it very expensive for govt to charge crimes is only fair. Making govt think twice about bringing charges because the likelihood of success is in doubt, is only fair. Knowing a suspect has sufficient resources to not be induced into plea bargain (govt overcharging, with intent to get a plea deal punishing the suspect), might rein-in government. It is time to do away with a justice system founded completely on the premise that the more money you gots, the more “justice” you can get.
In my case, I am a staunch full bail supporter (even if that is somewhat contradictory). As a potential juror, even being called for jury duty, establishes reasonable doubt.
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