The most likely path forward [in Rahimi] is for the Court to give (in Justice Kagan’s words) “useful guidance” for the lower courts on how to apply Bruen. And by “useful guidance,” Justice Kagan means watering down the Bruen test so lower court judges can pretend Justice Breyer’s Heller dissent is controlling. What is that guidance? Solicitor General Prelogar explains “The way constitutional interpretation usually proceeds is to use history and regulation to identify principles, the enduring principles that define the scope of the Second Amendment right.” Here, the Solicitor General purports to lecture the–what we are told is–the most originalist Supreme Court ever on originalism. Yes, after decades of discussion about original meaning, and we’re stuck with “identifying principles” from history.

Still, we should not abandon all hope. On two occasions, Justice Barrett shined a light on another case looming on the docket. …

…[T]he Solicitor General filed a cert petition in Range. (By contrast, the Solicitor General filed a cert petition fifteen days after the panel decided Rahimi–Prelogar has made it a habit to skip en banc review in the Fifth Circuit.) But the SG did not ask the Court to grant certiorari in Range right away. Rather, the SG urged the Court to hold Range pending Rahimi. You can imagine why. Rahimi presents the worst facts possible for a Second Amendment case. Meanwhile, a person who engaged in welfare fraud is a far more sympathetic defendant. In Range, the respondents (represented by Cooper & Kirk) told the Court to grant the government’s petition, even though they won in the lower court! (You don’t see that happening often.) The government’s reply brief, filed six days before Rahimi was argued, once again urged the Court to hold Range pending Rahimi.

Back to Justice Barrett. She asked the [Solicitor General Elizabeth Prelogar] “But you’re trying to save, like, the [Garland v. Range] issue. So you’re not applying dangerousness to the crimes?” Prelogar responded, “That’s correct.” Prelogar added, “We think that there are additional arguments that can be made to defend felon disarmament and that those depend on the unique history and tradition with respect to criminal conduct.” And looking ahead, the SG said, “we would hope to have the opportunity to present those arguments and perhaps persuade you in a future.” Barrett interrupted Prelogar. “In that case perhaps.” That is, Range. After some cross-talk, Prelogar said, “yes.”

Range will be distributed at the November 17 conference. If the Court grants certiorari, the case can be argued in the March/April window. Range and Rahimi would become companion cases. Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from Bruen. Indeed, the Court may be able to split those cases in a way so as not to water-down Bruen. The Court could even vacate-and-remand Rahimi in light of Range. If the Fifth Circuit is given clear guidance on what the state of the law is, it can follow that guidance.

— Josh Blackman in Rahimi, Meenie, Miney, Mo

RELATED ARTICLESMORE FROM AUTHOR

44 COMMENTS

      • RE: “It seems that Rahimi is not exactly a poster child for the 2A.”

        Although Gun Control zealots are hoping and wishing for the case to hinge on Rahimi’s rap-sheet the case as it should extends to points far beyond Rahimi’s attributes. We will soon see if the USSC can see beyond the tip of its nose.

      • Rahimi may lead to a legal precedent that we don’t want. Rahimi was a poor choice as a test case, and the “public defender” should have known better.

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  2. Zackey Rahimi as a person makes it easy for SCOTUS to water down Bruen. Tarrant County Texas dropped the ball on this guy, it should never have been handled by the Northern District of Texas.

    • Other interpretation I’ve seen makes sense. Rahimi will lose, but he should. He had already admitted to being dangerous and had agreed to not possess firearms, which he then violated and was caught doing.

      His loss would establish that danger/violence is the boundary that needs crossed and shown/admitted/proven to be stripped of 2A rights, and there are founding-era laws that support this. In Range, the government will be unable to use that argument and will be left with no historical laws justifying loss of 2A rights for non-violent crimes.

      Rahimis loss will clearly delineate certain US Code as unconstitutional (loss of 2A for violent vs. non-violent people) if Range perseveres, and that’s a solid win.

  3. What I want to know is if Rahimi did all of the things he is accused of why this is even an issue. He should be in prison for years for some of that stuff. For some reason they seem to have dropped all of the charges. Is this a lack of witnesses willing to testify or is he connected in some way or is he a federal witness and the Feds told the state to back off? I really don’t get how they could have dropped the ball that badly.

    • “What I want to know is if Rahimi did all of the things he is accused of why this is even an issue.”

      I got the impression from LKB’s comments following the ‘Rahimi’ arguments that he thinks the ‘Rahimi’ decision will “set the stage” for much better things to follow, like ‘Range’, currently seeking cert. before the Court.

      ‘Range’ has the potential for returning gun rights to non-violent convicted felons, like Mr. Range. He was convicted of welfare fraud, and seeks his gun rights being restored.

      If that happens, it will be HUGE, like tens of *millions* of new gun owners flooding the stores looking to buy a gat… 🙂

      • The issue I have with this case is that they are basically saying that since they screwed up and have not been able to get a conviction or even charge Rahimi with anything in the several shootings he was involved in or in the domestic violence case but he is still a dangerous individual so they should be able to bypass all of that and still take his rights away.

        I agree that if he has done everything he is accused of he is a bad guy but if they cannot even charge you with something and you have your day in court than they should not be able to take your rights away.

        It really is very simple, if someone have done things that show that they are too dangerous to be allowed 2nd amendment rights than that person should be in prison because there are many weapons available other than guns and they could acquire a gun on the black market anyway. If the government cannot get a conviction then they have no business being able to take someone’s rights away

        • BINGO. I’m on the extreme end of this issue theres no crime that warrants a person not incarcerated or on probation/parole having a right denied for life period. That wouldn’t pass the Bruen test on its face and thr statists know it.

        • I got the impression LKB believes ‘Rahimi’ will be narrowly decided, but in a way that limits the damage the Left can do with it. (I might be wrong on that. LKB is a federal court appellate lawyer personally known to TTAG management.)

        • “I got the impression LKB believes ‘Rahimi’ will be narrowly decided, but in a way that limits the damage the Left can do with it.”

          I think they will narrowly decide, focused on the dangerous’ness in a case-by-case-as-applied manner.

      • “tens of *millions* of new gun owners flooding the stores”

        I’m reminded of stories over the years, of find upstanding citizens being prosecuted for BS reasons, and losing their rights. All the way back in the 80s and 90s, I noticed that *some* courts seemed to hear a lot of procedural and records-keeping cases, all of which led to revocation of 2A rights.

        So – violating an ATF order would no longer be grounds for losing your rights? Only violent offenders lose 2A rights!

        • “Only violent offenders lose 2A rights!”

          *Potentially*, that is what at stake in the ‘Range’ case, if it gets heard by the High Court (granted cert.).

          If that happens, I’ll be buying in anticipation of the ‘Gold Rush’… 🙂

    • But there is still a fundamental due process issue, since the TRO was a civil TRO. Civil orders have a much lower burden of proof (more likely than not) than a criminal conviction (beyond a reasonable doubt). At the time of his arrest for all of those various shootings, he had not been criminally convicted of a disqualifying offense.

    • The State’s position seems to be, release dangerous criminals and use their subsequent crimes as justification for more laws targeting gun owners.

  5. When listening to the ‘Rahimi’ questioning, pay attention as to how Solicitor General Prelogar kept harping on the concept of “irresponsible’ being practically the same as ‘dangerous’. Thomas seemed to zero in on that, and the SG kept equating the two as being equivalent.

    Thomas isn’t going to fall for that, which is good, because I have feared if we ever won big on gun rights (Bruen) they would nit-pic at the edges, like equating a speeding ticket as not being ‘responsible’ enough to posses a gun. Thomas isn’t gonna let that happen…

    • Correct. I focused on that irresponsible vs dangerous nonsense myself. I can find any number of people who are irresponsible in various ways, but who pose no danger to anyone at all. Pointing at the Veteran’s Administration, deciding that if a person has shown financial irresponsibility, they pose a danger, and must be deprived of their firearms. That is complete and utter nonsense. Shall we then, determine that a guy who sets off on a journey with his family, then his car breaks down, he is irresponsible, and should have his rights revoked? Complete and utter nonsense. A family member can’t be trusted to remember to feed the livestock, so he should lose his rights? Again, complete and utter nonsense.

    • none of the Justices are falling for “irresponsible’. Thats why the government changed its tune and started focusing on ‘dangerous’

      Heck, anyone rolling through a stop sign can be called “irresponsible’.

  6. Prof. Blackman’s theory that SCOTUS might well grant cert on Range next week, and then GVR Rahimi for reconsideration in light of an opinion in Range (hopefully, that an individualized judicial finding of dangerousness is required for disarming someone) would be sublime, and would drive the SG’s office nuts.

    We’ll see soon enough. If they grant cert in Range, the game’s afoot.

    • I agree that that should be the standard under the 14th Amendment. Rights under the Constitution should not be disposed of in summary civil proceedings.

  7. Zackey Rahimi is not a good person. Sure it is easy to sit back and with emotion toss him and everything else to the mob. At issue which we must rise above emotion is that while Rahmi is a vile person, they to have rights of due process, just as anyone else would. Just like freedom of speech is not just for speech you agree with.
    If we stay focused on the fact that Rahimi needs due process just like anyone else it could pull a win. Ultimately it should come down to any “red Flag” law should be processed through the courts with the right of the accused to defend themselves. That is very hard for most to understand, but if they want to make Rahimi a prohibited person and take away a right. Any right, then it must be done through due process. I would want that for me and anyone else.
    For those of us who have gone through a divorce we all know how easy it is for people to throw around accusations. This could also be used as one method of warfare in a dispute.

    • The problem is that Rahimi *was* presented with the evidence against him, and *did* have an opportunity to challenge and argue against it. (He waived it, probably because he didn’t want to make a record that might later be used against him.) That’s all due process requires. Indeed, as Rahimi’s public defender admitted in SCOTUS oral argument, **they did not assert any due process violation.**

      When you plead guilty to a crime, you waive all sorts of constitutional rights, and that’s not a violation of due process (as long as the government steps on all the dots in the right order, which prosecutors and judges are trained to do). The entry of the agreed DPO against Rahimi was analogous to a guilty plea, or so I suspect the majority will hold. While, as noted, at the Rahimi oral argument, there are *some* DPO practices that might not be consistent with due process, what Rahimi was afforded in *this* case was sufficient. And that’s probably lethal to his facial challenge to the statute.

      • He did not plead guilty to any crime when the TRO was issued. He basically agreed that a restraining/stay away order could be issued. And that is or should be significant. It it too bad his court appointed defense attorney did not assert a due process claim.

        • By agreeing to the entry of the DPO, Rahimi pretty clearly waived any due process arguments.

          You could try and make an argument that just as acceptance of a guilty plea in a criminal case requires the court to make an evidentiary record of the defendant being formally advised of and affirmatively waiving various constitutional rights, due process requires that same kind of record must be made before a civil adjudication that results in someone becoming a prohibited person.

          But you are never going to “get to five” with that argument. The usual suspects that agitate for those proceduralist things (in the hope that if the government misses a step, it’s a get out of jail free card for the defendant) are never willing to anything pro-2A, and the “law and order” wing of the Court already doesn’t like the proceduralist charade that is the current plea entry kabuki.

          The votes just aren’t there.

  9. Your a felon, once you serve your sentence you will still be a felon.
    ” but Jesus died on a cross for our sins.”
    That’s not very original, your still a felon.

  10. As noted by an earlier commenter, Ernesto Miranda was a similarly “bad guy,” who was retried after his initial conviction was thrown out, eventually giving us “Miranda rights” as we know them today.

    He was retried, and then convicted (without his confession) of the “kidnapping and rape of an eighteen-year-old woman.”

    Rahimi is no better, or worse, than Miranda. The oral arguments are often deceptive, and do not change the underlying principles and arguments presented in the various amici briefs and lower court findings.

    I’d say “isn’t likely” is quite a stretch.

  11. If any of this is true I don’t think he should have any guns. If anyone has any info on this please post it.

    “For Zackey Rahimi, the solution for just about every problem in life seems to be to shoot a gun in its general direction. In December 2019, he fired a shot at a bystander who’d seen him shove his girlfriend in a parking lot, then threatened to shoot his girlfriend too if she told anyone about it. When an acquaintance posted something rude about him on social media, he fired an AR-15 into their house. When he got into a car accident, he shot at the other driver; when a truck flashed its lights at him on the highway, he followed the driver off the exit and, for some reason, shot at a different car that was behind the offending truck. After Rahimi’s friend’s credit card was declined at a Whataburger, Rahimi pulled out a gun and fired several shots into the air, a choice that I doubt made terrified employees any more inclined to fulfill his order.”

    • The two difficulties in this case are that:
      1) – for all the evidence that Rahimi is a dangerous person, he was not tried and convicted of any of that conduct. If it were true it twer a grievous suite of faults and grievously should Rahimi answer for them. He should lose his 2A rights after conviction; and,
      2) – as LKB explains – authoritatively – having consented to the facts leading to the DVO, he has had substantial due process. It’s unlikely that 5 justices will rule that he did not.

      I think Rahimi’s only hope would turn on a due process argument. That a civil DVO wouldn’t cut the mustard. LKB doesn’t think this is the case. SCOTUS might opine that the court didn’t dot an i or cross a t and rule – analogous to Miranda – that for the stripping of 2A rights, respondents in civil cases must be explained the consequences of consenting to a decree; or some such scenario. Then, they may DVR the case or limit it to an as-applied ruling. Rahimi skates on this case, but then is tried on all his other accusations, is convicted and is disarmed.

      We don’t much care how SCOTUS disposes of Rahimi. We care more about how much it protects respondents in such civil cases in the future.

    • I don’t disagree that this is someone who shouldn’t own a weapon. I doubt many people here would argue that point. Unfortunately, police and prosecutors did not feel he was enough of a danger to remove him from the streets, charge him using the laws that are already on the books for each of those incidents you had listed, give him a fair court trial, and secure a felony conviction that would have prohibited him from owning guns from that point forth. They have been using protective orders that do not require your day in court as a crutch so they do not have to do the job they are paid for. If he is too dangerous to own a gun then he is too dangerous to be a free member of society and vice verses. Let the jury of peers decide that.

      • IN Dave as I said to MarkPA above, thank you for your well thought reply. To many times when I post a question I get very emotional replies that don’t address the question I posted. I never try to formant discord on this site I am only looking for information that may at sometime help me or mine. Once again thank you.

  14. Quite frankly, this case is the result of prosecutors failing to do their job. If this guy has actually assaulted his spouse/SO, then he should have been charged, tried and convicted. THIS guy should never be permitted to hold or even look at a firearm, but many others who have ROs filed and never convicted have their rights violated every day.

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