Amicus briefs were filed this week United States v. Rahimi, the only Second Amendment worthy case currently before the Supreme Court. The agenda page for this issue is here. I will blog later about different summaries in this issue. This post describes my amicus curiae brief, Available here.
The case involves the constitutionality of 18 USC denominations. 922(g)(8), which imposes a federal prison sentence of up to 15 years on persons who possess a firearm while subject to certain state restraining orders. Friends are several law professors, including VC’s Randy Barnett, and Second Amendment Law Centerand the Independence Institute, where I work as Director of Research. The attorney involved in the memo was Constantinos T. MaurusFrom the law firm of Michell & Associates in Long Beach, California.
The bottom line in summary is that subsection 922(g)(8(C)(i) does just that no violates the Second Amendment; It restricts the gun rights of individuals who a judge finds pose a “credible threat” to others. In contrast, subsection 922(g)(8(c)(2) Do It violates the Second Amendment, because it requires no such judicial finding. The brief addresses the issue of “who” can be restricted in exercising Second Amendment rights; The brief takes no position on questions of “how” — such as what due process is required, or whether the severity of the prohibition under Section 922(g)(8) is comparable to historical laws restricting the exercise of gun rights.
The main purpose of this brief is to describe the types of historical laws that can serve as precedents or analogues for modern gun control laws. The summary agrees with Attorney General Modern laws against people found to be dangerous are supported by common law and historical laws against people who took up arms to intimidate the public or threaten to breach the peace.
However, many Friends supporting the Solicitor General, as well as the Department of Justice in cases before the lower courts, also rely on old laws based on invidious discrimination – such as discrimination against Catholics, slaves, free people of colour, etc. Contemporary lawyers who cite old discriminatory laws as precedents in favor of gun control almost always deny that they disagree with the old laws, but lawyers then claim that those laws still guide the current meaning of the right to keep and bear arms.
The amicus curiae brief explains the error of this thinking. Discrimination in the area of gun rights has been obliterated by constitutional legislation. Constitutional statutes determine our constitutional right to bear arms. This right is not defined by the ancient abuses that constitutional legislation is designed to stop:
As the legal historian Sir Henry Mayne observed, “the movement of progressive societies has hitherto been a movement from state to contract.” Henry Maine, Old Law 182 (1861). Likewise, progress on the right to bear arms has been constitutional legislation that rejects unfair exclusions.
Here is the summary of the argument:
This brief addresses “who” may be denied the right to bear arms. Some lower courts have had difficulty drawing lessons from historical laws relating to the disarmament of different groups.
Constitutional legislation related to the right to bear arms has added privacy to this right. When constitutional legislation prohibits denying a particular group the right to bear arms, previous laws targeting that group are rejected as legitimate precedents from which modern gun control analogies can be drawn.
The English Bill of Rights of 1689, which was part of the British Constitution and was applicable in America, disallowed the denial of gun rights due to peaceful political disagreement or due to joining a Protestant sect that was not the official Church of England. The 1689 Act allowed some restrictions based on economic or social class, and did not protect non-Protestants.
The United States Constitution of 1788 refused to impose restrictions on gun ownership for persons whose religious motives did not permit them to take an “oath.”
The Second Amendment of 1791 rejected restrictions on gun rights based on religion or class/income. Therefore, the short-lived anti-Catholic laws of 1756 in the two colonies have no validity as post-1791 precedents for restricting Second Amendment rights.
The Thirteenth Amendment of 1865 abolished all “insignia and incidents” of slavery. Disarmament is an incident of enslavement. Thus, the Thirteenth Amendment erased the prior value of earlier laws prohibiting slaves from possessing weapons or permitting their possession only by discretionary license.
All four provisions in Section One of the Fourteenth Amendment of 1868 expired. Previous laws that imposed gun restrictions on free people of color were subsequently invalidated as precedents for gun restrictions.
During the American Revolution, some “Loyalists” still considered themselves “subjects of the King of Great Britain,” rather than “the people of the United States.” Textually speaking, Second Amendment rights exist only in the “people” of the United States.
Likewise, when the Constitution was ratified, Indians were members of foreign nations. Their relations with the United States were governed by treaties ratified by the Senate. Later, the Indians became citizens of the United States and had the right to keep and bear arms. Colonial gun laws and early Republic laws regarding Indians who were members of other nations are valid precedents today for gun laws applied to citizens of foreign nations.
Precedents relating to foreign members are not helpful here, because Mr. Rahimi is an American citizen, and therefore a citizen of the United States.
However, as precisely stated in the Solicitor General’s memorandum, there is precedent of significant original meaning for restricting an individual’s gun rights based on a judicial finding that that person poses a danger to others. Therefore, state laws addressing the same subject matter as 18 USC §922(g)(8)(C)(i) can comply with the Second Amendment.
Whereas subsection (c)(i) requires a finding of a “credible threat,” subsection (c)(ii) does not, and is therefore a violation. The problem can be resolved by changing one word between §922(g)(8)(C)(i) and (ii): “or” to “and.” Making (C)(i) and (C)(ii) hyphens instead of separators would cure the violation in (C)(ii).