Federal law prohibits nine classes of people from receiving and possessing firearms. As the Supreme Court continues to develop its Second Amendment case law, which of these types are most important in terms of representativeness and numbering?
Criminals in possession of firearms have been the leading type of prosecution under the federal gun control law since it was enacted in 1968. There were 7,454 such convictions in 2021.
The prohibition of criminal possession is found in 18 USC § 922(g), which also includes eight other categories of prohibited persons – all of which are insignificant to the criminal prohibition. One of the most minor categories is a person subject to a domestic restraining order. Although the federal authorities are not very good at publishing current data, in the years 2013 to 2017, there were 26,717 such convictions based on criminal status, and only 121 for restraining order status. The proportions cannot be very different today.
Given this disparity, why is Attorney General Merrick Garland so keen on the Supreme Court deciding whether restraining orders, instead of criminals, are protected by the Second Amendment? The problem of criminals is pervasive, and not just because of numbers. This involves not only the question of violent crime versus non-violent crime, but also whether there are limits in our time when almost anything can be a crime. Why Martha Stewart lost his right to have a weapon to defend himself?
So why would the government try to convince the Supreme Court to take up the atypical issue of people subject to restraining orders? Here is my take.
The Biden administration is salivating at the thought of United States vs. Rahimi, which I have already discussed, being the next Second Amendment case to be decided by the Supreme Court. It’s because the defendant in the case seems like such an obnoxious character. Arrested by police following several shootings, Rahimi was banned from owning firearms because he was subject to a pre-agreed civil protection order. The Fifth Circuit concluded that the ban was apparently unconstitutional because no historical analog allowed disarming a person based on a civil protection order rather than a criminal proceeding.
The government didn’t bother to file a motion for a rehearing en banc and rushed straight to the Supreme Court with a motion for cert. There’s a reason for the adage that bad facts make bad law, and the administration seeks to take full advantage of that.
The same goes for the amici who filed briefs urging the Court to grant cert. One of them is California Governor Gavin Newsom, who argue that “the Court’s intervention is needed immediately”, given that the Fifth Circuit’s decision “is only one example of the misinterpretation of the lower courts Brown.”
He then lists some of the other rulings that take the Second Amendment seriously, an obviously unacceptable outcome for those who wish to redefine the right to bear arms to second-class status.
As the cert petition states, “the government is filing this motion for a writ of certiorari on a very expedited schedule…to allow the Court to consider the motion before it adjourns for the summer.” There’s nothing like rushing to the front of the line and insisting to the Court: “Choose me!”
And the government recently objected to the full length of an extension requested by Rahimi’s lawyer to respond to the petition. In his answer the government has indicated that it will only agree to halve the normal response time for lawyers “in view of the substantial disruption caused by the decision of the court of appeal”, in order “to allow the distribution of the request on June 6 for consideration at the June 22 conference meeting.” The extension was granted only in part, until May 30.
To be clear, whether the Court considers the motion now or in the fall, it will not hear the case until next term. One of the Administration’s apparent objectives is to ensure that Rahimi is the next Second Amendment case the Court is hearing. If there are other meritorious prohibited person petitions that are filed after the certificate is granted in Rahimiaccording to the usual practice of the Court, these applications would probably be kept pending the resolution of Rahimi. After that, the Court would grant the Certificate, Voiding and Remand (GVR) of the pending cases for reconsideration in light of what it would decide in Rahimi.
A better approach would be for the Court not to act too quickly and wait for the return of its summer vacation to decide whether or not to take Rahimi or another case for consideration in plenary. The court will likely have a fuller menu of options by then to choose from. For example, the third circuit is about to decide the Range against garland case in bench. Range brings a civil challenge as applied to federal criminal prohibition on behalf of a person who was convicted of excluding lawn mowing income from his food stamp claim nearly thirty years ago . The three-judge panel upheld his conviction based on inappropriate historical analogs such as the disarming of slaves.
In addition, the Second Circuit recently held a discussion in Zherka v. Garlanda challenge similar to Range‘s on behalf of a person convicted of conspiracy to commit bank and tax fraud. The district court upheld his legal incapacity under the “two-step” framework Judge Thomas characterized in Brown like “one step too far”. These cases present more typical challengers than that of Rahimiand business facts are less likely to bias the law.
Rather than hastily granting the Rahimi petition and then hold cases like Range And Zherka if they come before the Court, the Court should consider the full range of motions that are filed when she returns from recess and award the one or ones that are most representative of the challenges that are typically raised in this area. The Court could then hold Rahimi pending the outcome of this case – or at least grant another parallel petition Rahimi.