Rahimi Fallout – The Vine of Liberty

There was a reason that the DoJ wanted Rahimi before the Supreme Court. The facts in his case were bad facts. Bad facts lead to bad law.

The first thing to note about the Rahimi opinion, is that it is an “as applied”. This means the opinion only counts for Rahimi. The decision does not directly affect anybody else.

Rahimi claimed that §922(g)(8) was unconstitutional on its face. This requires that there are no circumstances where it could be constitutional. This is an extremely high bar to meet.

This is where the bad facts start. Rahimi was subject to a domestic violence temporary restraining order. This requires that certain requirements be met. As stated in other articles, the law, as written, does not require that the accused receive notification, only that the notification was sent. It does not require that the accused appear at the hearing, only that they have an opportunity to attend.

Rahimi received his notification, appeared in court. This means that the first two, of three requirements are met.

The third requirement, is that the accused be found to be a credible threat.

Rahimi admitted, and the court found, that he was a credible threat.

This meets all three prongs of §922(g)(8)

This means that Mr. Rahimi was given due process. This was not his ex-girlfriend sneaking off to the court to get a TRO. This wasn’t an “everybody just signs, it is so much easier that way.” This was an actual hearing with an actual finding.

What this means is that legally, Mr. Rahimi has been found to be a violent person.

Not only that, the documents show that he did in fact “go armed for the purpose of causing terror to the people”.

This means that Mr. Rahimi is a match for founding era firearm regulations limiting possession of firearms.

So what were the two types of laws?

One was the crime of going armed for the terror of the people, there was a punishment for this. These laws limited the public carrying of arms on the highways.

The second type of crime was a general fear of violence from a person. When this was the case, surety bonds were set in place. The person was not disarmed. Instead, they had “property” at risk if they did violence.

Justice Thomas pointed out, that in Bruen and Heller they explicitly stated that there had to be a match in how and why of a modern regulation to a firearms regulation from this Nation’s historical tradition.

That is to say, there had to be a match to the why, and to the how of the earlier regulation.

In the case of Rahimi, he matches the why, quite well, actually.

So the next question is, does the modern regulation address the issue in the same way?

It does not.

§922(g)(8) removes firearms from the accused completely. There is no right to armed self-defense in the home.

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.
—District of Columbia v. Heller, 467 U.S. 837, 629 (2008)

There is no founding era regulation that completely disarms a person, infringing on their right to armed self-defense within the home.

What Justices Thomas says, is that if §922(g)(8) was to meet constitutional muster, it would have used something more like surety laws and not blanking prohibition.

This case does not foreclose the Range case. That case has better facts. Unfortunately, it is not a case that the Supreme Court is likely to take up.

Which takes us to the fallout:

On the merits, however, United States v. Rahimi, No. 22-915 (U.S. June 21, 2024), provides guidance on identifying relevant historical analogues for contemporary weapons regulations. As Rahimi explains, the Second Amendment does not create “a law trapped in amber.” Slip op. at 7. The Court applied that principle to reject a challenge to the federal statute criminalizing possession of a firearm by a person subject to a domestic-violence restraining order, 18 U.S.C. § 922(g)(8).
—No. 187 Andrew Teter v. ANNE E. LOPEZ, No. 20-15948 (9th Cir.)

This is the same garbage language that infringers always grab onto. That the Constitution isn’t absolute, so their infringement will be okay.

The Court held that Section 922(g)(8) “fits neatly within the tradition” of restricting “possession of firearms by those found by a court to present a threat to others.” Rahimi, slip op. at 13-14. The Court relied primarily on two categories of historical laws to define that tradition. First, the Court cited laws authorizing magistrates “to require individuals suspected of future misbehavior to post a bond” before carrying a weapon. Id. at 10. Second, the Court looked to laws punishing “those who had menaced others with firearms” in the past through criminal penalties, including forfeiture of the offending arms. Id. at 12-13.
—id.

How were bad people punished? They had to post a bond in one case, in the other, they lost the arms they were carrying at the time. There was NO blanket prohibition.

These laws were “by no means identical” to Section 922(g)(8). Id. at 13. Neither historical category adopted a complete bar on possessing weapons, and neither directly addressed the problem of domestic violence. See slip op. at 16-26 (Thomas, J., dissenting). Yet the Court had “no trouble concluding” that these historical regulations were sufficient to uphold Congress’s action, reiterating Bruen’s insistence that “a ‘historical twin’ is not required.” Slip op. at 16 (opinion of the Court).

Among other things, Rahimi confirms that Bruen does not require identifying a historical analogue imposing the same restriction on a physically similar weapon. Reh’g Pet. 12-16. Rather, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles” underpinning “our regulatory tradition.” Rahimi, slip op. at 7; see also slip op. at 4 (Barrett, J., concurring) (“imposing a test that demands overly specific analogues has serious problems”).
—id.

Unless the Supreme Court grants cert on one of the other 2A cases seeking to be heard, it is likely that the Rahimi opinion will lead to more twisting of “close enough”.

“Close only counts in horseshoes, hand grenades, and nukes.” The state is going to argue “nukes” while the Supreme court was considering horseshoes.