Welcome to scotus Cast, a project of the Federalist Society for Law and Public
Policy Studies. Our contributors join us from around the country to bring you expert
commentary on US Supreme Court cases as they are argued and decisions are issued.
The Federalist Society takes no position on particular legal or public policy issues. All
expressions of opinion are those of the speaker. Hello, and welcome to Scotus
Cast. I'm your host, Kyle hammers On, behalf of the Faculty division
of the Federalist Society. We are here today to discuss United States versus Rahemi,
which was argued before the Court on November seventh. Is my honor to
introduce our guests today. Mark W. Smith, Professor Smith is a Presidential
Scholar and Senior Fellow in Law and Public Policy at the King's College. He's
also visiting and pharmaceutical public policy and law in the Department of Pharmacology at the
University of Oxford. Additionally, he's a constitutional attorney and host of the Four
Boxes Diner YouTube channel, which provides scholarly and historical analysis of the Second Amendment.
And with that, I'll hand things over to our guest, I appreciate
that. So we had about a ninety minute oral argument started at ten am.
What's interesting about the Second Amendment argument is that the government had to go
first, because usually over the years is those that support the right to keep
in bear arms to keep losing in the lower court. So it's highly unusual
that we had a situation here where the Second Amendment advocates, if you will,
the person advancing the Second Amendment actually prevailed in the lower court. Specifically,
in a three to zero decision in the Fifth Circuit Court of Appeals out
of New Orleans, was a decision that said that the relevant federal statute here,
which is a gun control statute eighteen USSE or eighteen US Code nin to
G eight, was unconstitutional on its face. Is what the Fifth Circuit said.
Specifically, what nine T two GA says is that if you are subject
to a civil and that's key, if you are subject to a civil domestic
violence restraining order, then you are not permitted under federal law, as per
Congress, to be able to possess a firearm anywhere in the United States.
And mind you, just to give you a sense of the scope of this
law. If you Let's say are in a dispute, let's say with an
ex spouse or someone you're getting to go in through a divorce with, whatever
it is, and let's say Boston, Massachusetts, and there is an order
entered that says that you two are supposed to stay away from each other during
the pendency of the divorce. And you go ahead and move all the way
across the United States to Phoenix, Arizona, thousands of miles away from your
expouse or the person you're going through a divorce or whatever it is, ex
employee doesn't, whatever it happens to be. Then under nine two G eight,
you are not allowed to possess a firearm even though you're thousands of miles
away from the person who's also subject to that domestic violence restraining order. And
the other context I want to bring is one of the other things that was
raised in the Amikus brief and actually mention an oral argument is many times these
domestic violence restraining orders are mutual, and what that means is that they basically
apply to both parties, and as you know, sometimes one party may be
more dangerous than the other party. Nevertheless, in for the good of the
order, it's not unusual, and this was brought up by many Amikus briefs.
I believe also by several public defender offices across the country that both parties
are basically disarmed. And that might be the case where a person who's a
potential victim is disarmed as much as the person that might be the potential perpetrator.
And I should note that that played a big role, as I see
it in the Fifth Circuit's decision that says the nine to twenty two G eight
was unconstitutional under the Second Amendment. Now, with that context in mind,
let's talk about what happened, what I think is going to happen, and
then where I think all this goes. So begin with to cut to the
chase. It's in my opinion that mister Rahimi, the man, the criminal
defendant, is likely to lose this case. I suspect he's going to lose
this case. It could be as much as seven to two, eight to
one, possibly even nine to zero. It's hard to say for sure,
but I think that mister Rahimi himself is going to lose this case because at
the end of the day, the Department of Justice, when they were arguing
this bear in mind that in the briefing, and this is quite interesting.
In the briefing, the Department of Justice argued there was really two types of
people that legislators such as Congress can disarm in America. One category of those
that are not law abiding. The other category is those who are not responsible.
And what the Department of Justice argue in their briefs in the he Me
case was that if you were not responsible and or you were not law biting,
you could be disarmed. Now that argument that the Department of Justice advanced
and remembror again reminder of the Department of Justice spoke first. The Solicitor General,
who did a great job as she always does, spoke first. And
what's interesting, in literally the first few minutes, Chief Justice John Roberts immediately
quizzed her on this by saying, well, let me get this straight,
counselor, if I drive thirty miles per hour in a twenty five mile per
hour speed limit zone, have I somehow basically lost my right to keep in
durarns because now I'm not law biding, I'm not responsible. And immediately the
Department of Justice and I think this is going to be actually a potential prompt
for DOJ in future cases. She immediately conflated her position and said, no,
not true. Really, at the end of the day comes down to
whether or not you, as an American citizen are dangerous. Now what's quite
interesting is people then, you know, the Court then kind of said,
well, that's interesting because you know, you couldn't have said that in your
briefs and said dangerousness was the touchstone here, and basically the Department of Justice,
you know, the Solicitor General kind of said well, yeah, dangerousness
is really the key. Yes, we agree, but there's different ways you
can kind of get there. And at the end of the day, the
court should always defer, as I see it, this is what they argued
to defer to the legislative body in this case, Congress. So when that
said, I do think that a comment by Neil by Chief by by Justice
Neil Gorsisch was telling because once John robert or i say Chief Justice John Roberts
made the comment that got the Department of Justice to concede that really dangerousness is
the key issue, meaning if you are dangerous i e. A physically violent
danger to yourself or to someone else, then you can be disarmed, which
is really where the question from Chief Justice John Roberts took The Department of Justice,
Uh Justice Gorsicch then sort of followed up and basically indicated that, hey,
well, well, if that's the case, then here it seems to
me that the record is such that mister Rahimi seems to be dangerous since,
of course he admitted and consented to the entry of this restraining order, and
if you look at the terms of the restraining order, it's essentially conceding that
the affidavit submitted by mister Raheem's ex girlfriend, I believe it is said he
was violent toward her in very specific ways. He consented and agreed to the
sworn statement and consented to the entry of this restraining order. It seems to
be at that level he may very well be deemed dangerous. And then on
a related note, Justice Courses went on to indicate that there seemed to be
plenty of history at the time of our founding, such as surety laws and
also a fray laws that would indicate that someone who is a violent danger to
themselves or to others could be disarmed. That did not seem to be a
particularly controversial proposition, so where a lot of what happened here in the oral
argument was the Department of Justice under Merrick Garland and the Solicitor General of course,
trying to broaden the scope of the interpretive methodology of Bruin. And this
was a very big deal because from the point of view of the Second Amendment
community, those interest were concerned. I would say that because mister Raheemi himself,
mister Rhemi, the man had a record, at least based on the
court filings, that he was somewhat of an odious character. He had been
involved with multiple shootings, he had engaged in violence against his ex girlfriend,
and had done other things that were untoward. I think there was even allegations
that he might have been connected to being to the drug trade in certain respects.
So on this record, obviously the man, mister Rahimi, did not
look particularly good or sympathetic, and I think there was concern on the part
of those that are want to robust or broad interpretation of the right to keep
in barms that this particular case could be a problem in the sense of bad
facts could make bad law. And I think the flip side, of course,
was that the Department of Justice under Joe Biden that obviously is sympathetic as
a general matter to more gun control. I think that's fair to say that
the Solicitor General basically was trying to expand the scope of those types of people
that could be viewed as able to be disarmed, and on a related note,
was trying to expand the scope of historical analog laws that could be used
to justify modern day gun control law. And I'll get to those specifics in
just a couple minutes here. So, with that tension going on, I
would say, mister Raheemi will lose this case. There will be a holding
that eighteen USC. Nine to twenty two G eight on its face is constitutional.
However, so at one level, mister Raheemi is not going to be
happy. But then the question becomes is when the decision comes out, how
will let's say the Biden administration view the outcome of the case favorably or unfavorably,
And how will let's say the Second Amendment community view the case favorably or
unfavorably. Here's where I think it's going to come out, and then I'll
elaborate on the Range case, which I think is coming down the Pike.
I think the Department of Justice is going to view this as a missed opportunity.
I think they thought this is a very strong case for them to again
have bat backs make bad law. And I think that they were very excited
at the prospect of pushing this Raheemi case to the front of the line of
Second Amendment cases before the Supreme Court, because historically Second Amendment cases that are
brought before the Court tend to be very sympathetic towards the citizen. Hell or
you had an individual that was a former law enforcement officer who could not get
a handgun MacDonald was, you had Otis MacDonald on an individual who lived in
Chicago, in a crimer in an area could not get a handgun, a
sympathetic second amendent plaintiff. In the Kaitano versus Massachusetts case, you had Jamie
Kaitano, a woman who had been stocked by an ex boyfriend and needed to
use a stun gun to protect herself. So the and of course, when
you had individuals that were undeniably upstanding citizens that just wanted to carry a gun
for self defense, when they could carry a gun for all other reasons,
but for self defense, so in every single one of those Second Amendment cases,
we saw the really the citizen was very sympathetic. So in this instance,
with mister Raheemi, his background and the allegations in the record, he
obviously was nowhere near any of those other individuals. So I think that again
the idea being this was a very good case to really test what's known as
the Brewin methodology of interpreting this Second Amendment, which is the text first,
that historical analog loss. Second. I think the idea on the part of
the Department of Justice was that to make sure that individuals like mister Raheemi cannot
go free, the court might bend over backwards and loosen or water down the
interpretive methodology of Heller and Brewin of texts first and historical analog second that methodology.
But I don't think it's going to work out that way, because it
seemed pretty clear that justices thought that it was a very straightforward case that if
you are a danger to society, you can be disarmed. That there was
a lot of examples of this going all the way back to the time of
the Founding, So it doesn't appear to be a particularly controversial issue here on
a related note, it seems to me that the US Supreme Court is not
going to get into some of the natty little questions that can come up in
these cases, because it sounded as if they wanted a narrow ruling here they
would simply say that on its face, eighteen USC. Nine to twenty two
G eight is constitutional under the Second Amendment. But I think they're going to
write something in there that says, hey, but nevertheless, there's a lot
of defenses that could be raised in future. In the future criminal case is
involved in this commerce clause arguments that says that they know Congress lacks the authority
to enact a kind of local domestic law enforcement statutes. You can see due
process arguments. In fact, I should note that several times due process came
up. What process was afforded to mister Rahimi in the context of the procurement
of the state domestic violence restraining order that arose out of the state of Texas.
And at the end of the day, I think Justice Barrett really hit
the nail on the head where she's basically saying, look, then, are
you do process down below? Your client consented to the entry of this order.
The order specifically says he's not allowed to have a gun, and he
signed off and swore to it with a notary, and there is a sworn
appetavit that he didn't challenge or disagree with. So it seems to me the
due process as a legitimate issue, and I think the Court acknowledges it is
a legitimate issue, but it was not really preserved in this case. I
think they're going to say that although the statute is going to be upheld under
the Second Amendment, there's a whole lot of as applied challenges that can be
brought against the government on behalf of American citizens in various ways. Now,
from the perspective of the expectations of the Second Amendment community, I think there
again was a lot lot of concern that the Supreme Court would use this case
to water down or possibly even reject the brew and methodology. But it's pretty
clear that's not going to happen. And I think that one of the best
tells about this is a comment made by Justice Barrett about the Brian Range versus
Garland case which came up today. Now, the reason why I bring up
the Brian Range versus Garland case is because it is the case that the Third
Circuit Court of Appeals en Bank issued a decision that says that Brian Range,
who had been prohibited from possessing firearms under a different provision of eighteen USC.
Nine to twenty two G. Keep in mind that Gun Control Statute eighteen USC.
Nine to twenty two G is the list of prohibited people. It includes
people like those subjects of domestic violence restraining orders. It also involves felons,
that's nine twenty two G one, those that are been dishonably discharged from the
military, those that have been involuntarily committed to a mental health institution, and
so on. So that's what nine to twenty two G is. So what's
interesting is this. I think this is quite telling. Justice Barrett made a
reference to the Range case. Now, the Range case, as we sit
here, is up on cert It's up on a cert petition. The Third
Circuit entered in order that said that Brian Range, a non violent felon who
was convicted something like twenty to twenty five years ago of failing to disclose something
like five hundred dollars in income on an application to the State of Pennsylvania's like
welfare program, to collect you know, food stamps or some sort of welfare
and that he failed to disclose that income. That was, you know,
he pled guilty to fraud by not disclosing that and as a consequence, because
of the penalties that were potentially applicable under that statute to mister Range, he
qualified as a felon as that term is defined by eighteen Usc. Nine twenty
two g one, So he lost his gun rights. He brought a lawsuit
under the Second Amendment, applying bruin of course, saying that he's entitled to
his right to keep in their arms because there's no historical analogue law at the
time of the founding that says that nonviolent felons or anyone that's non violent could
be disarmed permanently. And the Third Circuit agreed with mister Range and says,
indeed, in with respect to mister Range himself, because there's no evidence of
dangerousness or physical dangerousness or violence or anything along those lines, we the Third
Circuit Court of Appeals en banc, agree that mister Range is entitled to have
his Second Amendment rights and eighteen Usc. Nine to twenty two g one is
unconstitutional as applied to mister Range. Now. The reason why it's very important
to understand this Range case in conjunction with the Raheemi case is that both of
these cases were available for the Department of Justice to seek search this spring,
and just the Department of Justice decided to push the Reheemi case first, and
they waited until just about, I don't know, a month ago to seek
cerch in the Range case, even though many commentators included myself, pointed out
that the Range credit case was much more typical situation and is the case that
the Supreme Court should take. It is the case that the Department of Justice
should push. And the reason why that's the case is if you look at
the number of prosecutions and convictions every year under nine to twenty two G one
dealing with felons in possession, it is literally thousands and thousands of people every
year get caught up in nine twenty two G one. In contrast, the
Reheemi case speaks to nine twenty two G eight and there's only something on the
order of magnitude of fifteen to thirty. That's one five to thirty, fifteen
to thirty convictions every year under nine twenty two G eight, so it's rarely
used. And I mentioned this because it is pretty clear from Justice Barrett bringing
up the Range case even though cert has not been granted, and the Range
case, I should note, is coming up for a conference before the Supreme
Court on November seventeenth. It's coming up in just a couple of weeks,
so I think it's quite telling that the US Supreme Court is focused on this
Range case. And I could see a real scenario where the Supreme Court grants
CERT in a few weeks to the Range case. And we see two second
amendent cases in this term, dealing with nine twenty two one nine twenty two
G one the Range case and nine to twenty two G eight the Raheemi case.
And now one might say that that Range case could be held pending the
outcome of Raheemi, and that would have been true up until this morning's argument.
And this is another example where I point out that it is strangely enough
that although going into this argument, I think the Department of Justice was optimistic
about what the Raheemi case could do for their gun control agenda, and I
think the second amendic community was concerned about what the Supreme Court might do with
a reheemi case that could cut back on second amend the race. I actually
think it may now backfire. And the reason why I say this is because
in a colloquy between the Court and the Solicitor General trying to understand how the
Department of Justice went from their papers being that people that are dangerous and unusual
cannot have guns to I apologize. In the briefs they were trying to say
people that were lawbiying, were not lawbying, or not responsible could lose their
gun rights to dangerousness and how do this got how this goten morphed In the
context of the or argument, the Solicter General try to explain it away by
saying, well, what we're what we're really getting at your honors, was
in our brief we're trying to say there's two buckets of people that can be
disarmed by Congress or by the legislature. The first bucket are those that are
not law abiding, and those are people that are convicted of a crime.
And then the Solicitor General said, but there's a second bucket. That other
bucket are those people that are not responsible. And the distinction that I think
that the Solicitor General is trying to make here and argued it, but you'll
see why I think it's going to backfire. In one second, she was
arguing that the Raheemi case is an example of the latter category where if you
are not responsible, we can take away your guns even if there's no criminal
conviction, because keep in mind that the nine to twenty two G eight prevents
you from having a gun even if you are not criminally convicted. The domestic
violence restraining order is a civil process, and that civil process gives rise to
denying your right to keep in bare arms, which, of course the Supreme
Words repeatedly said is a fundamental right on par with other fundamental rights. So
the interesting thing is the Department of Justice taking the position that the Raheemi case
falls into the bucket of those people that are not responsible Americans. And then
in contrast, she was arguing that people that have been convicted, who've been
conducce evicted of a crime, fall into the other basket of those people who
can be disarmed. Those are people that are not lawbinding. But the problem,
I think from the Solicitor General's point of view, and I think Justice
Barrett picked up on this, which is why she asked about Range, is
by delinking responsibil people or irresponsible to people from law buying or not lawbinding people.
By creating two buckets there, She's I think the Solicitor General has basically
opened the door for the Supreme Court to take the Range case and the Reheemi
case, because now the Reheemi case can be used in this term to clarify
what it means to be not responsible, which I think is just dangerous,
and likewise dealing with the non law binding component, which is really the Range
case. And I think Barrett sort of signaled that there's a good chance we
may see both of these cases this term, which again I think is ultimately
favorable for the Second amendmagers prudence to continue to get these cases because you know,
in many years we'll see three, four or five Fourth Amendment cases,
will see multiple First Amendment cases. I've never seen a Supreme Court term where
there's been multiple Second Amendment cases, and there's really no reason why that can
not occur. Now. The other critical thing here, and I just want
to remind all of you of the Heller slash ruined methodology. In Heller,
the Supreme Court concluded that the District of Columbia's handgun ban was unconstitutional. Now,
the methodology of interpreting the Second Amendment that the Heller Court did was originalism,
and what I mean by that is they started off with the text of
the Second Amendment. They defined all the terms of the text of the Second
Amendment using eighteenth century lexicography, dictionaries, or other sources. And then after
that they turned their attention and obviously they concluded that a handgun was a form
of arm as in the right of the people to keep in their arms.
So then what they did is they shifted the burden to the garment and said,
okay, is there any historical tradition in American law of disarmy people of
these commonly owned handguns? And they concluded though there wasn't, and they created
the incommon use test. But the way the court did it and Heller was
again they looked at the text first, and then they look to see,
is there a historical tradition that could justify the government being able to regulate handguns
in some way? And Heller, is there a historical tradition of banning commonly
owned arms? And the Heller Court says no. So I mentioned that because
this is a very important point to keep in mind. It's often lost in
commentary, which is when people talk about the Bruin methodology, which of course
arises from the twenty twenty two decision of Nicsurpa versus Bruin. The Supreme Court's
methodology've interpreted the second is identical to Heller's. It's it's the same methodology.
You start with the text. If the text is implicated by the monerety gun
control law, or by the conduct that the American citizen wants to engage in
with guns, then the text is satisfied. The second Amendment is presumptively viewed
as binding, and the law, the gun control law is presumptively is presumptively
viewed as unconstitutional, and that shifts the burden. It shifts the burden to
the government. No different than a criminal case, where if you're indicted or
charged with a crime, you are presumed innocent. The burn shifts to the
government to show that you are guilty of the crime. Works the same way
metaphorically here. Once the text implicates a modern day gun control law, the
burn shifts to the government, and the government has to meet its burden.
So this is the critical part of Raheemi cases I see it. The question
is what is the government's burden? Now we know what the government's burden is
is a concept. Under the Bruin case, it says the government's burden is
to come forth with proof of a long standing, well established historical tradition going
back to the founding of a type of gun control law that is analogous to
the modern gun control law they're trying to uphold. So they basically it's a
comparison of the gun control law in case of Rahemi eighteen Usc. Nine to
twenty two G eight. You can't you lose your gun rights if there's a
domestic bonds restrain order. You compare that modern day gun control lag with some
historical laws going all the way back. Now, obviously, the more narrow
the analog that you're looking for, the harder it is for the government to
satisfy it's burdened once the burden shifts to it. The broader, more generalized
analog that government is allowed to use to justify its moderny gun control law,
the easier it is for the government to win. So a major part of
what was happening at oral argument, and you could see this with the colloquy
going back and forth between Justice Kagan, Justice Sodom R. And Justice brown
Jackson, with the Solicitor General and with Matthew Right, the attorney represented mister
Raheemi out of the Federal Public Defender's Office. You saw a lot of colloquy
on that side of the bench laser focused on what kind of historical analog or
what kind of history can be used to justify a modern day gun control law.
Now, the first thing, and I think this is quite telling,
is is that I think it was Justice Brown Jackson was concerned and I think
Justice Kagan expressed concern as well whether or not you actually need a regulation on
the books at the time of the founding or at the relevant time period.
There can be some debate about the relevant time period. At the end of
the thing, I think it's correctly the founding, But we don't need to
get into that specifically, because the truth is, when you're dealing with a
federal statute, which is what we're dealing with in Raheemi eighteen USC. Nine
to twenty two G eight was passed by Congress, you don't need to get
into the historical debate of whether or not post fourteenth Amendment history can potentially be
relevant to the meaning of the Second Amendment, because you're dealing with a federal
statute, and the Second Amendment when it was adopted seventeen ninety one, applied
to the federal government, so you don't need to worry about those fifth fourteenth
Amendment late nineteenth century historical analog debates. In this context, what's quite interesting
is that Justice Kagan and Justice Brown Jackson really seemed to be interested in whether
or not regulations were needed at all. In fact, this was clearly the
position taken by this Solicitor General where she was arguing, especially in this particular
case here where she said that domestic violence maybe wasn't really considered as a real
problem at the time of the Founding, which by the way, is not
true. If you look at some of the meekest briefs submitted in the Raheemi
case, you'll see that domestic violence was absolutely frowned upon. There was all
sorts of criminal and civil remedies as well as religious remedies by the way,
to deal with domestic vince at the time of the Founding. So to suggest
that domestic viance was not considered a social problem that the founding is simply not
true. Nevertheless, there was a lot of back and forth about whether or
not regulations are actually needed, and one of the concerns I think Justice Brown
Jackson really expressed was, well, wait a minute, this seems odd.
If there are no regulations, then can't we look to other historical evidence?
And I don't know what that other historical evidence would be. Presumably, you
know, affidavits or stories by historians explain what they think the history is.
But the Supreme Court in brun was very clear about the type of history specifically,
it has to be regulations. And I just want to because I think
this is important because this is where the fight was taking place. Is the
meaning of this language here from Bruin, which again is really just an embellishment
or a reiteration of the Heller test and laid out more specifically in Bruin because
a lot of the lower courts were not applying this test correctly between two thousand
and eight when Heller was decided in twenty twenty two when Bruin was decided,
And this is what Bruin said, and you'll see why this argument became so
important. Specifically, they write, in keeping with heller We the Supreme Court
holds that when the Second Amendments playing text covers an individual's conduct, the Constitution
presumptively protects the conduct. That's the presumption right shifts to the government to justify
its regulation. The government, in this case, Congress, the government may
not simply posit that the regulation promotes an important interest. Rather, the government
must demonstrate, and this is the key, that the regulation is consistent with
this nation's historical tradition of firearm regulation. That's what Brewin says. It specifically
says nation's historical tradition of firearms regulation. And one of the big issues going
on today was that Justice Brown Jackson justice side of my own Justice Kagan,
we're really trying to say that that framework or that discussion of regulation in Bruin
is not really fair that they could look at high level generalized views of history
at the time the founding, or any whatever the relevant time period is to
try to glean principles from American history to then in turn justify modern day gun
control laws. Now, again, there's no specific issues along that line in
this case, but it's pretty clear what the Department of Justice was trying to
do is to try to influence the way the Rahemi decision will ultimately be written,
to try to say that yes and d history outside of the context of
actual laws such as state constitutions, such as the federal constitutions, such as
common law, such as statutes, that other things other than those things,
those historical items can be considered. And because of course, if you broaden
the scope of what can be considered to justify modernity gun control laws, you'd
increase dramatically the odds of modern day gun control laws being upheld. So let
me carry on. So again, that was a big issue, but I
don't think it's going to succeed because it seemed to be based on that comment
from Justice Gorsuch that there were plenty of laws at the time of the founding
that said that if you were violent you could be disarmed. They not seem
to be allowed of controversy on that proposition. So I think we are going
to see a decision in Raheemi that says that if you are violent physically violent,
you can be disarmed at least during the period of time that you are
deemed violent, and that nine twenty two is facially constitutional. Now, just
a couple other items I do want to flag. Some of the people were
wondering whether or not the decision as to whether not mister Rahemi himself is part
of the people would occur at the textual level, because again, as I
pointed out in Bruin and Heller, you start with to text the Constitution,
then once it's satisfied, you shift to the historical tradition of government regulation of
firearms in this country. Now, the Department of Justice and their briefs was
trying to argue that mister Raheemi, who undeniably is an American citizen, that
mister Rahemi actually was not part of the people as in the defense, as
in the word or term as it's used in the second m ie the right
of the people to keep in bar arm shall not be infringed. The Department
of Justice in their brief and really laser focused to say that mister Raheemi,
by virtue of his conduct, would be pulled out textually from the word the
people. But that really did not get a lot of play because I think
it's pretty straightforward. If you look at the Heller case and Bruin, they
define the people as basically all American citizens and then some anyone that's connected in
any real continuous way with the United States, which obviously includes American citizens,
are part of the people textually. And of course keep in mind that the
people is not just found in the Second Amendment. That phrase is also found
in the First Amendment and the Fourth Amendment. And I don't think there's going
to be any suggestion that if somebody who is violent or danger or responsible and
gets pulled out of the people textually from the Second Amendment, they would also
theoretically be pulled out of the text of the First Amendment and the Fourth Amendment,
and that would be quite shocking to a lot of people that have already
been convicted of crimes no longer have Fourth Amendment rights to a search, to
assert the exclusionary rule, or arguments against unreasonable searches and seizures. So I
think that the argument DJ made and spend a lot of time on in the
brief is not going to go anywhere in terms of mister Rhemi is not part
of the people. Again, I think the issue will turn on whether or
not historically mister Raheemi can be disarmed as a matter of the tradition in America
of disarming violent people. The other thing, excuse me, the only other
point I will make here. There were two very powerful arguments that were made
in the Amikus briefs that I actually think will have real play down the road,
but not going to have play here, and it's pretty apparent it's not
going. One is due process arguments. It's clear that the Supreme Court is
interested in what kind of level of due process might be required before you can
be deprived of the fundamental right to keep in their arms. Obviously we know
in the context of those people that are mentally ill and are involuntarily committed,
there's a whole host of protections associated with that process under what are often known
as the Baker Acts or civil commitment statutes. Those require availability of attorneys and
experts, and that they can't afford it, you know, they're provided with
it by the state, a high standard of clear and convincing evidence, an
actual trial, the ability to confront witnesses, and so on and so on.
So I think the due process issue is going to play a big role
in future eighteen USC. Nine to twenty two and G eight cases. But
basically everyone agreed that this had been waived and wasn't really part of the question
presented. It would not be dealt with in any robust way in the Reheemi
case. But look for due process issues associated with First Amendment, I should
say Second Amendment challenges down the road. The other thing that I think is
very powerful is there was a very powerful commerce clause argument using a whole host
of precedents, saying that there is nothing in Article one of the US Constitution
that would allow Congress to step in and do what they're doing visa VI these
local law enforcement activities, which of course nine to twenty two G eight deals
with local domestic violence restraining orders done at the state level or the local level.
And I think there is a pretty good argument based on some commerce clause
arguments that have prevailed in the past, including for example, the case involving
I think the Violence Against Women's Act. So I do think you we're going
to start to see some commerce clause arguments against some of these federal statutes.
Obviously, that argument would not apply to gun control law and acted at the
state level, because you don't have an Article one prom inter say commerce from
in interstate commerce argument but I do think we should keep our eyes on that
coming down the pipe. And with that said, that is my quick summary.
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