Scumbagging the Second Amendment

The Supreme Court has granted certiorari in United States v. Rahimi, after a ruling by the Fifth Circuit Court of Appeal (Texas), setting aside Rahimi's conviction, under 18 U.S.C. § 922(g)(8), for possessing a firearm in violation of a civil restraining order based on a judicial finding that he represented “a credible threat to the physical safety of” his domestic partner.

Rahimi asserted that his conviction was invalid because he had a constitutional right to possess the weapon in question. He argues that § 922(g)(8) is unconstitutional on its face.

That Mr. Rahimi is a poster boy for the type of scumbag no one in their right mind would want possessing a firearm is beyond dispute. His record includes a lengthy criminal history the most recent episodes of which included drug dealing, burglary, two assaults on women with a firearm, the latter of which was accompanied by brandishing a gun, and firing it into the air while arguing with a potential witness. For these accomplishments Rahimi was convicted and sentenced in a Texas state court. When he gets out, he will never be allowed to possess a firearm. Nevertheless, the Department of Justice decided to pursue Mr. Rahimi on federal charges.

On the first appeal from his federal conviction, the Fifth Circuit rejected Rahimi's constitutional claim. The court ruled, that under the “two-part balancing test” in use at the time, Rahimi's rights were “outweighed” by the compelling state interest in maintaining the peace, tranquility and safety of the realm.

After Rahimi was packed off to prison but, before his judgement was final, the Supreme Court decided N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, (2022), __U.S.__, 142 S. Ct. 2111, which changed the Second Amendment legal landscape. Under Bruen a person has a presumptive right to posssess weapons in “common use” among the public, and it is the government's burden to prove that the restriction or deprivation of the right is justified by some analogue in the “history and tradition” of the Second Amendment. Rahimi thereupon mounted a second challenge to § 922(g)(8) and, this time, “in light of Bruen” the Fifth Circuit reversed.

Needless to say, the anti-gun lobby -- which has finally stopped making a secret of its desire to abrogate the Second Amendment -- has raised a hutesium et clamor against a ruling that will cruelly subject the country and its millions of innocent children to the bloody rack and ruin of gun violence. Not only is Rahimi's scumbaggery the main ballast of their argument, but in a perverse way he has become the anti-hero of their cause.

However, a facial challenge to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual. The question properly before the Fifth Circuit was whether, § 922(g)(8), as written and in abstract principle, passes constitutional muster. Of course, the law would not be the law without there being a wrinkle and, as written, § 922(g)(8) is something of a clunker.

That statute prohibits possessing a firearm in violation of a civil protective order. The order must have prohibited stalking or threatening a domestic partner (1) based on a finding that the person “represents a credible threat to the physical safety” to said partner OR (2) “explicitly prohibits the use, attempted use, or threatened use of physical force against such” said partner. In other words, § 922(g)(8) can be violated without there having been any finding of “dangerousness.”

This second condition was so obviously flawed that the Fifth Circuit had previously held that it contained an “implied” finding of dangerousness. (United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).)   As thus patched up, section §922 (g)(8) rests on a civil judicial finding that the subject of the order represents a danger to a particular person.

“A well regulated militia... the right of the people to keep and bear arms...”

Interestingly enough, instead of asking whether such a finding constituted a sufficient predicate for depriving Rahimi of his right to bear arms, the Court of Appeal began by asking whether Mr. Rahimi was part of the “people” to whom the Second Amendment refers. At this point my ears started to burn. Yes indeed: who and on what basis gets to decide whether a person is part of the national community?

By phrasing the question in that manner the Fifth Circuit transubstantiated the issue of “my rights” into the more primary existential question of whether “I” am part of “Us.” That it seems to me is a rather important question, especially when we recall the lamentable history of regimes that have excluded categories of people from their national community.

There is no question that a member of “we the people” can disenfranchise himself by his conduct. The concept is known as “civil death.” But our Constitution provides specific means and limitations on how that is done; namely, after conviction by jury trial with assistance of counsel. It is not the conviction that causes a man to forfeit his membership in the the community but rather the decision of his fellow people. In civilian countries like France or Germany, it suffices for agents of the State, professionally trained judges, to make the decision as to whether someone should incur civil death and thereby be excluded -- for a time or forever -- from walking freely among fellow citizens.

But neither England nor the United States have ever followed the civil law. In our tradition a man's right as “one of a people” can only be taken away by the people, and the Sixth Amendment specifies that this is to be taken literally. As Justice Scalia put it, “Judges, it is sometimes necessary to remind ourselves, are part of the State -- and an increasingly bureaucratic part of it, at that” (Apprendi v. New Jersey (2000) 530 U.S. 466, 498.) "It is the jury that functions as circuit-breaker in the State’s machinery of justice." (Blakely v. Washington (2004) 542 U. S. 296, 307.)

Now, it is true that the overwhelming majority of cases are disposed of by plea. But that does derogate from the principle at issue. Every plea must be based on a voluntary and knowing waiver of the process accorded. Anyone who wants to be judged by his peers, face to face, has the absolute right to appeal to the circuit breaker.

This is yet another example of the ways in which the Bill of Rights enshrines not only individual rights but the right and power of popular control over government and over our own destinies. No judge, magistrate, agent, bureaucrat, or lackey can exclude you; only the people can say that you are no longer part of the people. You can't get more fundamentally democratic than that.

Of course, a popular decision while a necessary condition is not a sufficient one. In addition to a determination by jury, the decision must accord with substantive standards and due process of law. In a word, there must be good cause and reason for finding someone unworthy to participate in the community of the free. The shorthand for all of this is the well known truism that a person may loose his rights through and upon conviction for a crime or for a certain class of crime. Nevertheless, it is important to bear in mind what lies behind the shorthand.

The Department of Justice would have it that a person can be excluded from the national community and the rights shared therethrough, by the say-so of a civil order made by an agent of the state, pursuant to no specified criteria or standard of proof. The only contingency is that the subject of the order receive “actual notice” and be given the opportunity “to participate.” What this boils downs to in practice is a showing that notice was mailed to him at his last known address.

To justify this sort of regime, the Government pointed to various historical analogues in English and Colonial law. The first of these was the Statute of Northampton, 2 Edw. 3, (1328), and various copy-cat statutes, which prohibited “riding about armed to the terror of the King's subjects” (ne de chivaucher ne de daler arme). As I have written elsewhere, what the statute actually prohibited was using arms to terrify the people. The statutes in question invariably resort to phrases such as “with force and arms,” or “affrayers,” or “breakers of the peace,” or “go armed offensively.” As such, these statutes (English and Colonial) presupposed a primary right to lawfully bear arms, and the universal acceptance of this right cannot in good faith be doubted by anyone familiar with the historical and legal record from King Alfred (850) to James Madison (1791). As stated by the Fifth Circuit,

“In substance, the early “going armed” laws that led to weapons forfeiture are not relevantly similar to § 922(g)(8). First, those laws only disarmed an offender after criminal proceedings and conviction. By contrast, § 922(g)(8) disarms people who have merely been civilly adjudicated to be a threat to another person.”

The Government's second argument relied on various English and Colonial laws which had authorized the seizure of weapons from “dangerous” classes of people. Or, as the Government summarized it, “persons and disaffected persons perceived as threatening to the crown.” The difficulty with this line of argument is that the persons deemed “dangerous” were either Protestants (under Charles II and James II), or Irish and Catholics (after the Glorious Revolution) or slaves and Indians (in the Colonies). The perversity of the Government's argument is truly astonishing. If anything, the Second Amendment was designed to forestall precisely those kinds of status-based forfeitures.

Lastly, the Government sought to rely on various surety laws by means of which an individual who could show that he had “just cause to fear” that another would injure him or destroy his property could “demand surety of the peace against such person.” If the party of whom surety was demanded refused to post surety, he would be forbidden from carrying a weapon in public absent special need. The similarity between § 922(g)(8) and surety laws is obvious. Where the analogy breaks down is that surety laws did not confiscate or prohibit possession of the weapon itself. The Government's argument that the right to possess arms can be based on a civil finding of dangerousness; and, therefore, if a finding of dangerousness is sufficient to condition your right it ought to be sufficient to abrogate it as well.

The Justice Department is hoping that the outrageousness of Rahimi's conduct will distract and obscure the pernicious principle being asserted. In seeking Supreme Court review, the Government has sought to portray the Fifth Circuit's ruling as one that would hog tie the authorities from taking any reasonable measures to counteract a patently dangerous and, indeed, deranged person from committing further gun violence. Needless to say, the Anti-Gun activists and media followed up with the appropriate rhetoric qua reportage. Since it makes for such salacious reading we might as well quote the Government's brief in full:

“... Zackey Rahimi was a drug dealer who mostly sold marijuana and occasionally sold cocaine. In December 2019, Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault.

“In February 2020, after giving Rahimi notice and an opportunity for a hearing, a Texas state court granted C.M. a restraining order, which was valid for two years. C.A. ROA 12-18. The court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” . The court accordingly prohibited Rahimi from committing family violence and from threatening, harassing, or approach ing C.M. or her family. . The order also suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that possessing a firearm while the order remained in effect may be a federal felony. Rahimi signed an acknowledgement that he had 'received a copy of this protective order in open court at the close of the hearing in this matter.'

“Rahimi, however, defied the restraining order. In August 2020, he tried to communicate with C.M. on social media and approached her house in the middle of the night, prompting state police to arrest him for violating the order. C.A. ROA 218. And in November 2020, he threatened another woman with a gun, leading the State of Texas to charge him with aggravated assault with a deadly weapon.

“Rahimi then participated in a series of five shootings in December 2020 and January 2021. First, after someone who had bought drugs from him “started talking ‘trash’ ” on social media, he went to the man’s home and fired bullets into it using an AR-15 rifle. The next day, after colliding with another vehicle, he alighted from his car, shot at the other driver, fled, re- turned to the scene, fired more shots at the other car, and fled again. Three days later, Rahimi fired a gun in the air in a residential neighborhood in the presence of young children. . A few weeks after that, a truck flashed its headlights at Rahimi when he sped past it on a highway; in response, Rahimi slammed his brakes, cut across the highway, followed the truck off an exit, and fired multiple shots at another car that had been traveling behind the truck. Finally, in early January, Rahimi pulled out a gun and fired multi- ple shots in the air after a friend’s credit card was declined at a fast-food restaurant.”

“Police officers identified Rahimi as a suspect in those shootings and secured a search warrant for his home. A search of his room uncovered a .45- caliber pistol, a .308-caliber rifle, pistol and rifle magazines, ammunition, approximately $20,000 in cash, and a copy of the restraining order. [ as a result of which he was indicted for violating 18 U.S.C. 922(g)(8]”

What this stunning narration glides over is the fact that prior to be charged with the federal offence, Rahimi had been convicted on state charges of “terroristic threat of a family/household member, discharge of a firearm in certain municipalities, and family violence assault causing bodily injury.” (see United States v. Rahimi (5th Cir., June 8, 2022, No. 21-11001) [pp. 3 fn. 2].) After conviction and sentence on these state charges, Rahimi admitted and pleaded guilty to the federal charges, reserving the right to appeal the constitutionality of the federal statute. The federal district court then imposed a prison term to run consecutive to the state sentence.

In his first federal appeal (the June 8, 2022 case, cited above), Rahimi argued that the state and federal sentences should run concurrently because, after all, it was all part of his singlular deranged and dangerous propensity. The Fifth Circuit rejected this claim on the ground that “the pending state charges are not a part of the same course of conduct as Rahimi's possession of a firearm in violation of a restraining order”  inasmuch as federal offence arose two and 12 months after the state prior state charges. (United States v. Rahimi (5th Cir., June 8, 2022, No. 21-11001) [pp. 4].) At the same time the Fifth Circuit rejected Rahimi's constitutional challenge.

What the Government elides gracefully is that there was plenty of time for the Texas courts to issue an order restraining Rahimi from possessing a firearm. In fact, they had done so and if Texas did not do so again it was because Rahimi was being packed off to prison in any case. Despite all the tears and rending of garments, this was not a case where the authorities were rendered helpless in their attempts to control an armed, violent and dangerous lunatic. The good and peaceable citizens of the United States and the Great State of Texas can sleep tight at night knowing that Rahimi's dangerous are under lock and key.

What remains then is a facial challenged to a criminal statute that is based on the deprivation of a constititional right issued by a civil magistrate who decides that a person represents a danger to another. That's it. No further requirement or qualification. In defending 922(g)(8), the Government is arguing for the deprivation of a constitutional under a totally undefined standard of determination.

As Judge Hoo, noted in his concurring opinion, “civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger. ... Judges may face enormous pressure to grant civil protective orders—and no incentive to deny them.” That is true enough, but the situation is far worse.

Because, by definition, a "danger" is a possible or, to some degree, a probabable harm, a "danger" can always be said to presently exist and is impossible to deny. Authorities intuitively understand this which is why they speak of "potential dangers," which sounds like it is saying something more when, in fact, it is saying less. Unless tethered to enumerated and specific objective criteria, a finding of dangerousness is not only easily made but, worse yet, is no more than a self-certifying excoriation. The inherent capriciousness of such findings make them the favourite tool of tyrants. It is precisely for that reason that the Government and gun control activists wish to mesmerize people with “dangers.” This is the same Administration that has a track record of exerting government pressure to censor “dangerous” or “hateful” speech by gagging or cancelling social media accounts. Once they establish the principle that constitutional rights can be taken away through such vague and facile “findings” liberty ceases to be guaranteed. This is not the beginning of a slippery slope, it is the end of it. It is nothing a true and honest liberal in the mold of justice Douglas, Brennan or Black would have countenanced.

Although the Fifth Circuit opinion did not mention Apprendi or Blakely the way it initially framed the question indicates that it clearly had those cases in mind. The Bill of Rights presupposes the loss of the rights it protects, but it does so by the means it prescribes.

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