Wednesday, November 08, 2023

Bruen in light of Rahimi: Doctrine that Hands a Loaded Gun to Lower Courts

Neil Siegel

The Justices have only themselves to blame for the presence of United States v. Rahimi on their docket.

The question presented in Rahimi is whether, under the U.S. Supreme Court's 2022 decision in New York State Rifle and Pistol Association v. Bruen, the Second Amendment prohibits the government from disarming individuals under domestic-violence orders. The issue made it all the way to the Supreme Court's small docket because the Court in Bruen rejected the consensus reached by the federal courts of appeals, which had generally limited the core of the Second Amendment right to self-defense within the home and had applied intermediate scrutiny to firearm regulations outside that core. The Court in Bruen instead held that the core of the right extended to firearm possession for purposes of self-defense outside the home, and it refused to apply any means-ends scrutiny even to that substantially more expansive core. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote in his majority opinion in Bruen. "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." 

Armed with that vague standard, which licenses the creative processes of reasoning by analogy and setting the level of abstraction at which to determine the contents of historical tradition, the U.S. Court of Appeals for the Fifth Circuit in New Orleans asserted that there was no historical analogue to 18 U.S.C. § 922(g)(8), which bars the possession of firearms by individuals subject to domestic-violence restraining orders. So, the appeals court struck down the provision, effectively requiring the Justices to take the case.

The most important legal point made during oral argument yesterday in Rahimi originated outside the Supreme Court. It came from Camille Paradis, a nineteen-year-old who survived the Sandy Hook mass shooting in 2012, in which a gunman murdered twenty children in an elementary school in Connecticut after committing an act of domestic violence by fatally shooting his mother. Ms. Paradis was with her sister at a protest outside the Court. According to Aishvarya Kavi of the New York Times, Ms. Paradis said: 

The fact that they're even debating this at all and even considering upholding the Fifth Circuit's ruling is just very hard and very upsetting.

The oral argument made relatively clear that the Court is going to reverse the judgment of the Fifth Circuit and uphold the federal law at issue. That is because--whatever the level of abstraction at which "the Nation's historic tradition of firearm regulation" is pitched--the Justices are not crazy, and it is crazy to think that the Second Amendment disables the government from barring the possession of firearms by individuals who pose an obvious risk of danger to others or themselves. Determinations of consequences, which were palpably on the minds of most of the Justices yesterday, are made from the vantage point of the present, not the distant past, when the law's response to spousal abuse and related assaults was substantially more limited than it is today, and "domestic Violence" mostly referred to riots or violent disturbances within a state, as opposed to military attacks by a foreign government. See, e.g., U.S. Const. Art. IV, § 4.

But what do concerns about consequences have to do with the LAW? Everything. If one were doing traditional constitutional law instead of Bruen's revolutionary innovation, one might say that, even assuming the substance of the Second Amendment right as defined by the Court, every government in the United States has an important--indeed, compelling--interest in keeping firearms out of the hands of dangerous individuals, and that a ban on possession is substantially related to--indeed, narrowly tailored--to advancing that governmental interest. 

Accordingly, the federal government's likely victory in Rahimi is no vindication of the Court's reasoning in Bruen. As Ms. Paradis reminds us, the test of a legal doctrine is not just whether the judges responsible for it can find a way to reach the right result in a subsequent case. Rather, the test is whether the doctrine imparts seriousness and gravity to questions that are not serious and grave. The question presented in Rahimi is not serious and grave--it is exasperatingly easy. Yet, it occupies a coveted position on the Court's docket because the majority opinion in Bruen imposed an easily manipulable inquiry and deemed irrelevant the government's interests in regulation, thereby empowering willful lower courts to do what the Fifth Circuit did here. 

The proverb that "hard cases make bad law" requires a companion counsel of caution: Bad law makes easy cases hard.

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