Morgan Marietta, University of Texas at Arlington
Should it be legal to take away the guns of people who are under a domestic violence protective order, which aims to shield victims from their abusers?
That’s the question posed in one of the biggest cases of the current Supreme Court term, focused on the limits of individual gun rights, which will be argued before the justices today.
The case, U.S. v. Rahimi, comes in the wake of revolutionary changes in doctrine over the past two court terms. Now, justices must grapple with how far the new principles will reach.
Two years ago, the court began what many consider to be a constitutional revolution.
The new supermajority of six conservative justices rapidly introduced new doctrines across a range of controversies, including abortion, guns, religion and race.
When the court announces a new principle – for example, a limit on the powers of a specific part of government – citizens and lawyers are not sure of the full ramifications of the new rule. How far will it go? What other areas of law will come under the same umbrella?
In a revolutionary period, aggressive litigants will push the boundaries of the new doctrine, attempting to stretch it to their advantage. After a period of uncertainty, a case that defines the limits on the new rule is likely to emerge.
Focus on guns
U.S. v. Rahimi may be the limiting case for gun rights, identifying the stopping point of the recent changes in Second Amendment doctrine.
Zackey Rahimi is a convicted drug dealer and violent criminal who also had a restraining order in place after assaulting his girlfriend. The court will decide whether the federal law prohibiting the possession of firearms by someone subject to a domestic violence restraining order violates the Second Amendment.
In the 2022 case of New York Rifle & Pistol v. Bruen, the court announced a new understanding of the Second Amendment. The amendment had long been understood to recognize a limited right to bear arms. Under the Bruen ruling, the amendment instead describes an individual right to carry a gun for self-protection in most places in society, expanding its range to the level of other constitutional rights such as freedom of religion or speech, which apply in public spaces.
However, the court’s conservative justices also tend to argue that constitutional rights are balanced by responsibilities to promote a functional society, a concept known as “ordered liberty.” The practical question is how to know the proper balance between liberty and order. If the right to carry a gun can be regulated but not eradicated, limited but not eliminated, where is the line?
The court’s answer in Bruen is history – a current law does not have to match a specific historical one exactly, but it has to be similar in form and purpose. Whatever gun regulations Americans allowed during the early republic – the critical period from around the 1780s to around the 1860s at the time of the Civil War – are allowable now, with the exception of any that would violate principles added to the Constitution more recently, such as racial equality under the 14th Amendment.
Justice Clarence Thomas, the author of the Bruen ruling, described it this way: The government must “identify a well-established and representative historical analogue, not a historical twin.” Thomas argued in Bruen that no such historical analogue existed for the limits New York imposed, invalidating the state’s ban on concealed carry permits.
The Rahimi case will provide a critical test of this historical approach to the boundaries of constitutional rights.
Historians have presented evidence that there were widespread laws and practices during the early republic limiting gun possession by individuals, like Rahimi, who were judged to be dangerous. However, those dangers did not include domestic violence, which was not deemed the same important concern then that it is now.
The court may consider the laws prevalent in the early republic, which regulated those who “go armed offensively” or “to the fear and terror of any person,” to be analogous to contemporary laws restraining those under a domestic violence restraining order. If so, the ruling will likely uphold Rahimi’s conviction and limit gun rights.
On the other hand, if the court reads those historical standards as more narrow and specific than the contemporary ban on gun possession while under a restraining order, those limits will be struck down.
This story incorporates sections of a previous story about the Supreme Court published on Sept. 26, 2023.
Morgan Marietta, Professor of Political Science, University of Texas at Arlington
This article is republished from The Conversation under a Creative Commons license. Read the original article.
[ED: Like so many observers of today’s arguments in US v. Rahimi at the Supreme Court, the author here neglects the due process aspect of the case. That’s what the Fifth Circuit based its ruling on as Zachey Rahimi had been deprived of his Second Amendment rights without ever having been convicted of a disqualifying crime. The question before the court is at what point the societal benefit of disarming an allegedly dangerous person will be allowed to outweigh their Constitutional rights.]
If somebody is dangerous to society they should be found so in a court of law and sentenced. Innocent till proven guilty. Taking somebodies property before they have been given due process under law is theft.
Another case to decide whether or not the Second Amendment of The United States Constitution takes a back seat to Gun Control the History Confirmed agenda that is Rooted in Racism and Genocide…Might as well be deciding whether or not to hang a noose and swastika on the door of the courthouse.
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*Breaking News*
Live ‘Rahimi’ arguments :
What does “shall not be infringed” mean? If left up to NYC, SF, NY, it means citizens will be disarmed for any reason, as they all ready have been.
The very notion of being too dangerous to have a thing but safe enough to wander free is absurd and needs to end.
Shire-man, also these same people are still allowed to drive.
Or buy basic implements from a hardware store as well as gasoline. But yes it is overwhelmingly passive docile law abiding gun owners that are the statistically most likely to engage in unprovoked violence.
It’s clear that you’re relying on doctored statistics if you believe “passive docile law abiding gun owners that are the statistically most likely to engage in unprovoked violence”
Thinking you missed the puddle so let me add sarc
As a society we have made it policy that there are broad categories of offenses for which confinement for life is neither necessary nor ethical. (See: cruel and unusual punishment) Nevertheless, once the public has learned, often at its expense, that someone has exhibited a willingness to commit acts of violence, society has no duty to place itself in danger by allowing the ex-offender access to lethal weapons. (See: not a suicide pact) We may forgive but we don’t forget.
Rahimi was a terrible case to have to build the case around. He’s such a card carrying dirtbag that he overpowers the conversation.
My biggest concern is not a prohibition against adjudicated abusers, but rather the possibility that someone who’s never raised a hand in anger loses their right because of a vengeful partner or a court acting on a “just in case” mentality.
Rahimi is a bad guy, but if we don’t protect the rights of the bad guy the rights of the rest of us won’t be far behind. Who wants to be subject to the whims of activist judges or nasty lawyers employed by an ex who might only be mean tempered, or who might just want a disarmed victim.
“Rahimi was a terrible case to have to build the case around. He’s such a card carrying dirtbag that he overpowers the conversation.“
Yep. It’s almost as if the folks pursuing this appeal actually want to fail…
All in all I appreciate her attempt here but article is a bit pre-mature. The author would have served us better had she waited for the arguments to be made then summarized them in relation to the points she made.
“The author would have served us better had she waited for the arguments to be made then summarized them in relation to the points she made.”
I hope LKB will fill us in on how the line of questioning went later today…
Mine as well.
I’ve now read the transcript.
My initial prediction is that based on questions from Roberts, Gorsuch, and ACB, and even some from Thomas, they are going to reverse the Fifth Circuit, finding that because there was indeed an individualized order that was based on evidence (a detailed affidavit from his ex), that was an adjudication that established Rahimi’s “dangerousness.” Rahimi thus received due process and there was an individualized adjudication that he was a dangerous person.
It does look like the Court pushed back on the SG’s effort to say that a finding that a person is not a “responsible person” is a legit basis for disarmament — they got the SG to say that it’s *only* a finding of dangerousness that matters, not ambiguous stuff like irresponsibility or a lack of virtue.
The historical analogue they appear to be going with is that because civil courts sitting in equity have always had the power to hear evidence and enter injunctions that limit the actions of a defendant, the issuance of individualized domestic protective orders based on an evidentiary showing of dangerousness are OK, and therefore a federal law that makes that a disqualification *while the order is in place* is OK. There will be some quibbling around the edges (e.g., a DPO that purports to be a lifetime ban probably would not pass muster, as would “automatic” DPO’s), but the fact that this is a facial as opposed to an “as applied” challenge is the key.
The riposte to all this is that in reality, DPO’s are usually just boilerplate that courts enter as a matter of course. While that’s true, the Court wasn’t buying that argument — appears to me they are going to say, “OK, if that happens to *you,* then file a challenge saying there was insufficient evidence of dangerousness, but on this record there *was* evidence and a finding that Rahimi was a dangerous person.”
Again, I’m not agreeing / disagreeing with any of the foregoing, that’s just how this old appellate lawyer is reading the tea leaves from the argument.
Thanks to LKB for an erudite post. Bravo sir. I couldn’t reply directly as you did not click on the reply boxes.
” …they got the SG to say that it’s *only* a finding of dangerousness that matters, not ambiguous stuff like irresponsibility or a lack of virtue.”
I hope so, as I have predicted for years if we ever won big on gun rights, the lengths they will go to get people declared prohibited persons will only expand over time, using excuses like “He drove his truck irresponsibly at high speed, therefore, someone as irresponsible as that shouldn’t be allowed to own a gun”, or, a heated argument at work is proof someone isn’t stable enough to own a gun”, etc.
With the care Thomas took in crafting ‘Bruen’, he has to know the games they will play given the chance… 🙁
Mark Smith of ‘The 4 Boxes Diner’ has weighed in on today’s arguments :
“HUGE 2A SCOTUS NEWS TODAY: RAHIMI BACKFIRES ON DOJ…”
Lefties want to limit ammo purchases to one hundred .50 caliber or one thousand of any other caliber every five days. They would also register all sales of ammo, to create a back door gun registry, and you would need an FFL to sell ammunition.
https://robertgarcia.house.gov/media/press-releases/congressman-robert-garcia-along-senator-elizabeth-warren-and-congresswoman
I went to Garcia’s website. He does not accept emails from anyone outside his district. Too bad I would have like to ask him how it felt when he betrayed his oath to support and defend the Constitution, meaning all of it, not just the parts he agrees with. Damnable traitor.
Politicians almost never accept email from outside their jurisdictions. Senators and members of the house are the worst offenders. However, I correspond with multiple congress critters. When you land on their page, just give a fake address. 101 Main Street, county seat of member’s home county. I don’t expect snail mail anyway, no big deal if it goes to a fictitious address. The email responses show up in my email. Things work fine for me. I get to tell them when they are complete asses, and I get to hear their excuses when they deign to respond. I really enjoy correspondence from Wasserman Schultz. I picture her choking over my comments, and crying to her confidante(s) that such a conservative old bastard can’t possibly live in her district.
“Lefties want to limit ammo purchases to one hundred .50 caliber or one thousand of any other caliber every five days.”
That isn’t going anywhere…
Agreed but as long as traitors like Garcia, Warren and Debbie are allowed to serve in government we will always be subjected to this insanity.
Well not nationality, need to look up specifics but we have some long running proposals of Assault weapon ammo purchase caps of something less than 50 rounds a year up on the assembly again here in NY. Doubt anyone will follow it given the current situation but yet another reason not to trust democrats fleeing NYC.
California does not limit the amount one can buy, but the purchase has to occur through a FFL or licensed ammunition seller with a mini instant background check to make sure you are not on the list of prohibited persons. Ammunition cannot be delivered to your home. The purchase is registered with the State. Nonstate residents have to have a full background check ($37) and a ten day wait.
Have the governments of Oregon, New Mexico, Nevada and points east agreed to not sell ammo to CA patriots? Seems to me a simple way around that. I spent time in Nevada a few miles from the CA border and considered driving over there for the day but didn’t.
@Michael,
In my own travels to neighboring states (NV, AZ), nobody has ever asked me for my I.D. when I’ve purchased ammo while visiting for training courses or personal desert shooting fun. As I may (as a Free American on Free America soil) legally make such a purchase in those jurisdictions regardless of my home State of residence, they never ask nor care.
BTW, the CA Penal Code *does* carve out narrow exceptions on ammo that may legally be brought back with me when I return home, such as a maximum of 50 rds of the cartridge that matches the gun I used for training purposes. So whenever I attended a class, I swapped out between two guns of two calibers, and knew I would be able to “import” a 50-rd box of each when going home.
““The bottom line is no individual should be buying bulk amounts of ammunition without a federal background check from places like gas stations, pharmacies, and convenience stores – especially without any sort of regulation and no record of the sale,” said Congressman Garcia.”
What?
Me: I gotta go to the gas station and fill up my tank and while I’m there, I’ll get a pack of cigs and a couple thousand rounds of .223…
Wife: Hey, can you stop by the pharmacy and pick up my prescription? And while you’re there, they’re having a sale on Gold Dots, can you pick me up a case or two in 9mm?
What?
I doubt that will be considered constitutional (by the current court, anyways) simply because there has never been ammunition control from the dawn of America until very recently.
What we need to do is get the lawsuit pipeline loaded with 2A cases, and start knocking them out…
Black Americans, Asian Americans, Mexican Americans, and White Americans: Reject Gun Control – Arm Yourself and Refuse to be a Sitting Duck. > https://www.msn.com/en-us/news/opinion/black-americans-asian-americans-mexican-americans-and-white-americans-reject-gun-control-arm-yourself-and-refuse-to-be-a-sitting-duck/ar-AA1juBux?ocid=BingHp01&cvid=85c7a206d05b42e3809c900e11ecaa51&ei=63
That’s a good read. That should be on the front page of TTAG.
WTF: How is this EVEN a protective order case? THIS fucking moron should not even be allowed in the same ZIP code as a firearm… Anybody here want this clown for a neighbor? It’s a wonder he hasn’t killed someone, or someone hasn’t killed him… Fuck this guy, let him rot in jail, this is NOT my idea of a poster child for the 2nd Amendment, the 2nd is an affirmation of MY natural right to protect myself FROM people like THIS scumbag…
In December 2019, Mr. Rahimi and his girlfriend got into an argument in a Texas parking lot. During the fight, Mr. Rahimi knocked the woman to the ground, dragged her to his car and shoved her inside, according to court records. When he realized that a bystander was watching, he pulled out a gun and fired a shot. He then later called the girlfriend and threatened to shoot HER if she told anyone what had happened…
According to a brief by the government’s lawyers, after someone who bought drugs from him “started talking trash” online, he fired an AR-15 at the man’s house. The next day, during a traffic crash, they say, he shot at a driver. He is accused of firing a gun into the air in a residential neighborhood three days after that. A few weeks later, after a truck flashed its headlights at him, prosecutors say he followed the truck and shot at another car. In January, they say, he fired shots in the air after his friend’s credit card was declined at a Whataburger restaurant.
OH, and NOW he’s sorry as he stated in a letter to the court (written from jail) and pinky swears to NEVER touch another gun… I give the girlfriend a week to live after this asshole is released from jail…
Pretty much everyone agrees that Rahimi is a despicable SOB. His lawyers almost certainly don’t “like” him. They have no respect for him.
The issue, as I understand it, is timing. I don’t believe that Rahimi was actually convicted of any serious crimes before his weapons were taken. The issue revolves around due process. Had the state or the local governments taken the time to deal with due process, Rahimi wouldn’t have a leg to stand on. But, they couldn’t be bothered with due process, as is the case with all Red Flag laws.
If/when due process is incorporated into Red Flag laws, such as Maine has done, then I can go along with them. Rahimi is supposed to settle that issue.
I’m quite sure that the man will remain in prison, because he has so many other crimes of which he has been convicted.
That would be true had Rahimi NOT attended the hearing for the order of protection and NOT agreed to give up his firearms during the period specified, before he got even more stupid and decided to shoot up his DRUG customers house, AND shot at others over a period of time, guy is a moron, NOT the person to be bringing this case… In this case there WAS due process… He’s not in “prison”, he is currently being held in a County jail…
In February 2020, after a hearing in which Rahimi appeared, a Texas state court granted a two-year protective order from Rahimi. The court issued the order after it found that Rahimi had “committed family violence” and that this violence was “likely to occur again in the future.”
Three requirements need to be met for federal law to apply to allow the government to take away someone’s guns: a protective order, the person’s receipt of notice of and an opportunity to participate in a hearing that led to the order, and a finding in the order that the person represents a credible threat to the partner or child, or is prohibited from using or threatening to use force against them.
And the presence of an attorney for the accused. FIFY. NO ONE should lose ANY rights without an attorney present.
His choice…
“The issue revolves around due process.”
Exactly.
This case alone can gut every ‘red flag order’ out there in one fell swoop, along with a few others.
Thomas knows what’s at stake here, and how the Leftist-Fascists are *salivating* at the prospect of gutting ‘Bruen’. I hope he can gather the votes to strengthen gun rights…
“This case alone can gut every ‘red flag order’ out there in one fell swoop“
Perhaps… But because of the defendant’s multiple crimes and his pledge not to be in possession of firearms which he reneged on, this case alone will confirm every red flag law out there in one fell swoop.
“…this case alone will confirm every red flag law out there in one fell swoop.”
I have a sneaking suspicion what we will gain from this is not violent dirtbags being separated from their guns, but that the separation can happen, *after due process takes place*.
Like, being able to face your accuser in court. The main issue today are lying spouses ‘getting back’ at their men with nothing more than a lie…
Rahimi is a despicable piece of excrement. Contrary to the anti-gun, the pro-2A organizations are not cheering for Rahimi to have a gun. But the issue here is not, contrary to anti-gun, if he should or should not have access to a firearm or expanding guns rights or any of their other nonsense. The issue is complicated but basically it comes down to, also, a due process question … does or does not due process apply?
If due process does not apply for Rahim (remember, he was not convicted of a qualifying crime before, without the due process of the 4th amendment, his property was taken), then it does not apply for law abiding either like you or me or anyone else if some government entity simply wants to strip people of their rights or property, any right, simply because they say so or with a civil protection order.
As I noted in my comment above, I think the Court is going to find that because there was an individualized evidentiary showing that Rahimi *was* a dangerous person, the entry of a DPO was an adjudication by a court that he was dangerous. (Not agreeing / disagreeing; just my prediction from seeing who asked what and counting noses.)
As far as due process, even Rahimi’s counsel admitted that he had the opportunity to have been heard but waived it. Ergo, no due process violation was even argued.
(Rahimi’s counsel was not particularly persuasive, BTW.)
LKB,
Do our courts consider a single sworn affidavit, without any supporting evidence, to be compelling evidence of whatever the person swore in the affidavit and thus sufficient evidence to take someone’s rights? If so, that sucks big time because anyone can swear a false affidavit about anything and anyone and cause the target of the affidavit to lose their rights.
Kind of another angle, how can a sworn affidavit in a vacuum be sufficient for anything if the target of the affidavit had no opportunity to refute the swearer?
Uncommon:
If the DPO was issued ex parte (i.e., just on an affidavit with the defendant having no opportunity to be heard and challenge the evidence), then that would raise big due process issues. That’s the big problem with red flag laws.
But those are not the facts of *this* case. As I understand the record, and as was the focus of a lot of the questioning at oral argument today, there was detailed affidavit evidence, and Rahimi *did* have the opportunity to challenge the evidence and argue the DPO was unwarranted . . . but he chose not to and agreed to its entry. Very hard to argue a lack of due process on that record.
To answer your question directly, courts do rely on affidavits all the time in deciding issues in civil cases, but due process requires the right to confront your accuser before they can deprive you of constitutional rights like liberty, voting, RKBA, etc. The twist in this case is that Rahimi apparently had such an opportunity but waived it (or so the court appears ready to hold).
Whether Rahimi’s “opportunity” to challenge the evidence was real or illusory is a question that apparently wasn’t developed below, and as such the court can’t address it now.
“(Rahimi’s counsel was not particularly persuasive, BTW.)”
Was the public defender’s office the ones representing him in front of the Court? (I’m assuming the PD was the one representing him in the first place…)
LKB,
Thank you as always for your informative answer.
(Rahimi’s counsel was not particularly persuasive, BTW.)
They really didn’t have a lot to work with… Could hardly argue what a pillar of the community their scumbag client is…
“Contrary to the anti-gun, the pro-2A organizations are not cheering for Rahimi to have a gun“
But that is exactly what will happen if they prevail.
They won’t, and the SC will uphold the law with regard to Mr. Rahimi.
““Contrary to the anti-gun, the pro-2A organizations are not cheering for Rahimi to have a gun“
But that is exactly what will happen if they prevail.”
That’s not the only potential outcome. The SCotUS could re-define who or who can’t legally own guns.
So, Rahimi could lose, and literally tens of *millions* of convicted, BUT NOT VIOLENT felons could win their gun rights back. Justice Amy Coney-Barret has already opined in earlier rulings that non-violent people should have 2A rights.
THAT is what is at stake here.
EDIT –
If that happens, this ruling could be as consequential as ‘Bruen’ for gun rights, since the Leftists could just re-define many misdemeanors as felonies, depriving millions of their 2A rights…
To amplify –
Did you notice the emphasis the government kept making about ‘responsible’ or ‘irresponsible’ people and their 2A rights?
This ruling could potentially cut that crap out at the knees… 🙂
Nothing at all “new”, much less “revolutionary”, about the Court’s recognition that the Constitution means what it says.
*Nothing at all “that should be” new
Edited for current situational issues.
If the Court’s understanding is only controversial because of current situational issues, then by definition it isn’t “new” 😛
Well we SHOULD have the constitutional protections from the government at multiple levels restraining their powers and activities but currently……yeah about that 🙃
Indeed, Sir!🤨
“The amendment had long been understood to recognize a limited right to bear arms. Under the Bruen ruling, the amendment instead describes an individual right to carry a gun for self-protection in most places in society, expanding its range to the level of other constitutional rights such as freedom of religion or speech, which apply in public spaces.”
“The amendment has recently been understood to recognize a limited right to bear arms. Under the Bruen ruling, the amendment instead describes an individual right to carry a gun for self-protection in most places in society, restoring its range to the level of other constitutional rights such as freedom of religion or speech, which apply in public spaces.”
FIFY
I’ve written before, Maryland prior to a castle law (mid 90s) every person was required by law to retreat from ones own home in the case of an invasion. The 2nd only gave Maryland citizens the right to go hunting or to a shooting range. Prior to Bruen there were a select few business owners licensed to carry but for bank deposits only. Even retired police officers had no right and sued for the right in the mid 90s.
For what it’s worth, the NY Times just posted an article “Supreme Court Seems Likely to Uphold Law Disarming Domestic Abusers,” based on the day’s lively arguments.
What’s it worth? Nothing. Me thinks the NYT is indulging in wishful thinking.
Yep, considering that pesky ‘due process’ that fucks up their gun-grabbing.
They were saying similar things after the ‘Bruen’ arguments, and look what happened, strict scrutiny on steroids, with the ‘One test too many Justice Thomas Doctrine’…
They need to put out the talking points to build the right side of history to rewrite the actual events with later.
Unfortunately, I concur with the prediction that SCOTUS is probably gonna uphold the prohibition on possession by people subject to a DPO. I think they can do so without doing violence to Bruen by focusing on the historical fact that civil courts sitting in equity have long had the power (subject to due process guarantees) to issue injunctions against people shown to be dangerous.
Again, not saying I agree with it or not, but that’s the weather forecast.
“…the historical fact that civil courts sitting in equity have long had the power (subject to due process guarantees) to issue injunctions against people shown to be dangerous.”
Can they craft a narrow enough ruling to be bullet-proof against the typical Leftist-Fascist games they love to play with the 2A?
Hopefully the supremes will give some guidance on how and when a constitutional right can be taken away
This decision will go the same way Bruen did. For the Court to do otherwise would weaken the Bruen decision and they can’t allow that to happen.
“For the Court to do otherwise would weaken the Bruen decision and they can’t allow that to happen.”
I doubt Thomas will cripple ‘Bruen’, he knows all too well how they will exploit any cracks to neuter the 2A, and I hope he won’t fall for that…
He won’t, but there’s a couple others I’m not too sure about – Roberts being one of them, but imho this is essentially an argument between ‘strict scrutiny’ & ‘government interest’, and we know how that played the last time. There’s also the fact that a majority of States have adopted permitless carry, and other laws that have significantly undermined the anti-gun agenda at all levels, among other things, such as crime rates, social unrest, and so on that have driven a 4 year+ gun buying frenzy by the general public. People are fed up with government sticking their collective nose in where it don’t belong.
” …imho this is essentially an argument between ‘strict scrutiny’ & ‘government interest’, and we know how that played the last time.”
That’s why I’m hoping we come out much stronger after the decision is announced next June…
It was announced yesterday that the Court will not reveal its final decision until way next summer.
I am willing to bet they uphold the Red Flag Law. bb
So same timeline as Bruen……. well see what happens.
“So same timeline as Bruen……. ”
Same as every SCotUS case before it, no change.
dacien the dunce (deb’s likely lover) is going to be crying crocodile tears like he was last year… 😉
June (traditional release period after the Spring Session) is only “WAY into next Summer” to CNN, MSDNC and Dboy… Hint the 1st day of Summer begins around the 21st of June (can occur on the 20th)… Labor Day is closer to my idea of WAY into the Summer… For the elite intellectual that you CLAIM to be, you sure post some stupid shit… Just sayin…
Major cases traditionally wait until June to be issued. I would be surprised if SCOTUS issued one early. I’m fairly certain that the three worthless broads, Sotomayor, Jackson and Kagan will delay it while they try to browbeat Roberts, Kavanaugh and ACB into submission.
Betting on a “LEAK” (remember Roe?) if this drops against “red flag” laws…
Oral Arguments In Rahimi.
Note: above video is a guess. Need to wait and see. This is not actually a 2A case per se’, its more about due process.
It is about due process, but, every line of questioning and testimony centered on Bruen and 2A rights. I listened to all but the first few minutes of the oral arguments. Every question and answer cycle referenced 2nd Amendment issues.
And, due process is the central issue surrounding our objections to red flag laws. We don’t have any particular complaint about due process about things like auto repossessions, home foreclosures, assault hearings, or much of anything.
Exactly…
First, from what I’ve read, the DV protective order was issued after evidence was presented before the judge. So, due process was performed before the order was issued.
Now, just my opinion in this matter. if the defendant was offered the opportunity to defend themselves, and possibly refute evidence against them before the judge, and the judge has heard from both parties involved, then as part of the protective order, yes, it should be possible for the judge to order the defendant to be disarmed until the case against them is adjudicated.
Yup. And as I have noted above, I suspect that fact (evidence submitted, Rahimi given at least an opportunity to refute/challenge it but declined) is what will carry the day.
What we can hope for is that the opinion focuses on the fact that an *individualized* judicial determination of dangerousness, consistent with all due process rights (especially the right to confront your accuser), satisfies the Bruen test, with dicta that administrative determinations do not, nor do determinations of “not a responsible or virtuous person,” or categorical prohibitions of groups that are not tied to individualized judicial determinations that satisfy due process.
Such would gut most red flag laws and probably nonviolent conviction prohibitory statutes.
But we’ll see. If it goes this way, it could be 9-0, with concurrences from the Three Stooges, which could mean we’d see an opinion in the Spring.
BTW, Justice Jackson’s questioning once again shows her utter lack of intellect. She is by FAR the least intelligent justice in generations, and makes Sotomajor look like Louis Brandeis. Truly embarrassing.
“Such would gut most red flag laws and probably nonviolent conviction prohibitory statutes.”
Whoa, that would be *massive*. Potentially tens of millions of non-violent felons suddenly declared to be not legally prohibited? Eager to buy guns?
Glock, Smith, Colt, Henry, etc. might need to hire and tool up for all the new customers.
Crap, if that’s really the case, there may be a need for new ammo manufacturers to meet the need. The shrieks of anger from the Leftists will be sweet, sweet music… 😉
Such an opinion wouldn’t instantly kill such laws, but the writing would be on the wall.
ACB wrote an excellent dissent when she was on the 7th Circuit, arguing that there was no historical basis for permanently disarming nonviolent criminals, and that the doctrinal basis for doing so (“unvirtuous persons”) just didn’t pass the giggle test. Note that she got the SG to say the the government was not relying on a claim of “unvirtuousness” or “irresponsibility,” but only “dangerousness.”
On the downside, however, it probably means Hunter Biden walks. But he’s going to anyway . . . .
If Hunter Biden walks, and millions of non-violent people get their 2A rights back, that’s fine with me…
There WILL be much wailing and gnashing of teeth…
She is fully qualified by the “standards” Biden announced for the appointment🙄
SHE can’t define what SHE is… Saaaddddd…
That AND the video of him assaulting ger and shooting at the witness probably had a fuklot to do with it…
We dont care what the Supreme Court says.
You may not, but I damn sure do… 🙂
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