Tuesday, August 1, 2023

Challenges and Possibilities Emerge as Supreme Court Tackles Another Second Amendment Case in the Aftermath of Bruen

(AP Photo/J. Scott Applewhite, File)

Next term, the Supreme Court is set to evaluate another case involving the Second Amendment, namely United States v Rahimi. This comes a mere twelve months after the landmark Bruen case decision was issued by the Supreme Court. This development could either be promising or concerning for advocates of the Second Amendment. Proactive measures are being taken by the Second Amendment Law Center as they coordinate an amicus brief campaign aimed at ensuring the ruling promotes Second Amendment rights. 

Rahimi’s case pertains to a federal criminal prosecution under United States Code section 922. The law was declared unconstitutional by a unanimous Fifth Circuit Court of Appeals panel. They referred to the Bruen decision, highlighting that it rejects the idea of beneficial policy objectives, favoring instead a historical analogy assessment of the burden permissible on Second Amendment rights. They concluded that the prohibition of firearm possession stipulated by § 922(g)(8) is an aberration that would not have been tolerated by our forefathers.

The government, having been unsuccessful at the Court of Appeals, petitioned for the Supreme Court to review the case. In an unexpected turn, the Supreme Court accepted. This may not bode well for 2A rights.

The Supreme Court will now reevaluate the constitutionality of 922(g)(8)'s restriction on firearm possession by individuals under restraining orders, under the history and tradition-oriented Bruen test for Second Amendment issues. This will likely necessitate the Court determining the conditions under which a whole class of individuals can be barred from owning firearms, without consideration for unique circumstances. 

The outcome of this case could influence the rights of other groups prohibited from owning firearms: users of cannabis, non-violent criminals, people under civil restraining orders, and those with certain misdemeanor convictions. The fact that Mr. Rahimi is an unsympathetic figure doesn't help the case, and as the adage goes, poor facts can lead to poor legislation.

The Supreme Court's eventual verdict in Rahimi will likely address whether the government can prevent certain groups of people from owning firearms. However, the decision in Rahimi has broader implications. It could clarify outstanding issues concerning the application of the Bruen test, which assesses the constitutionality of gun laws. The Court's decision on these issues is what worries stakeholders. 

In the Bruen case, the central debate was whether the government could compel individuals applying for a permit to carry a firearm in public to demonstrate a special need beyond self-defense. However, in resolving this, the Court elucidated the test to be used to ascertain the constitutionality of all gun laws, using an "originalist" approach. This test now aims to establish whether the Founding Fathers would have tolerated a law like the one under question. Governments trying to justify firearm bans have used the Bruen test to make it easier for predisposed courts to affirm gun bans. Some clarification on this matter could deter the government's attempts to manipulate other Second Amendment cases.  

However, Rahimi’s case could pose a risk to Second Amendment rights. Those opposing gun ownership hope the Court will overturn the Fifth Circuit’s decision. They speculate that due to their reluctance to restore gun rights to someone like Mr. Rahimi, Justices Barrett, Kavanaugh, and Chief Justice Roberts might side with Justices Kagan, Sotomayor, and Jackson to uphold the law. The critical question is how they can do this without reducing the scope of the Bruen analysis and weakening the Second Amendment.

The Second Amendment Law Center is undertaking efforts to address these concerns. The federal public defender's office, which is representing Mr. Rahimi, does not specialize in 2A litigation, hence amicus briefs will be crucial. 

The case is expected to be presented before the Court in November or early December, subject to potential changes in the briefing schedule. Initial briefs in the Rahimi case are anticipated to be due around mid to late August, followed by Rahimi's response and supporting amicus briefs in September. The Second Amendment Law Center is currently organizing amicus participants and drafting amicus briefs.

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