A raft of amicus curiae briefs have now been filed in support of affirming the Fifth Circuit’s decision invalidating the federal ban on possession of a firearm while in the presence of a domestic violence restraining order (DVRO). While no one supports defendant Zaki Rahimi’s alleged conduct, various amicus persuasively argue that the federal law — 18 USC § 922(g)(8) — prima facie violates the Second Amendment.
In this post, I’d like to walk through some of the summaries that I thought were unusual. All briefs in the Supreme Court’s docket are easily accessible website.
But first I would like to mention Brief for respondent, submitted on behalf of Mr. Rahimi. Lead counsel is Matthew Wright, Office of the Federal Public Defender, N.D. Tex. The summary covers all textual and historical bases, as decided by the court in New York State Rifle and Pistol v. Bruin, and in particular does a comprehensive job of chronicling how the founding generation responded to interpersonal and domestic violence. That generation responded in many ways, but never by banning guns. Contrary to legend, many men were imprisoned for assaulting their wives in the new country.
Human rights defenders are underappreciated, but they are doing God’s work by counseling those in need. Kudos to Mr. Wright’s team for their professionalism.
Disclosure: I have provided a Brief On behalf of the National African American Rifle Association. He focuses on alleged historical comparisons that the United States relies on, such as prohibitions on gun possession by “greasers,” “tramps,” and “tramps,” which served as traps for involuntary servitude. The government also cites the confiscations of arms by oppressive British monarchs, the seizure of loyalist weapons by our patriots in the Revolution (there was a war going on after all), and the completely unrelated laws against arms sales to children and drunk people.
The government also argues that the development of repeating weapons after incorporation justifies Section 922(g)(8) as required by “new modern circumstances.” However, technological innovation in weapons has not led to an increase in domestic violence, given the widespread use of knives, sharp objects and bare hands by abusers.
Now we turn to the important points in some other summaries, in no particular order.
In states like California and New York, DVROs are distributed like beads thrown from floats at Mardi Gras. Judges routinely sign on the dotted lines with little pretense of due process. These practices are detailed in summaries Alameda County Public Defenders et al. And Bronx Defenders Association and the National Association of Criminal Defense Lawyers.
Is domestic violence something new that was unknown to the founders, necessitating new restrictions on firearms? the Brief Historian Angus Kirk MacLellan has a clear answer: no. “Domestic violence was a serious social problem at the founding of the nineteenth century and throughout the nineteenth century.” Were English and early American law tolerant of cruelty committed by abusive husbands? The answer is also no, as McLellan explains. For example, in 1687, in the colony of Pennsylvania, wife Hannah Overton provided evidence of her husband Thomas Tunnicliffe’s abuse of her and their children. The court ordered him to provide a good behavior bond that could be imposed on his property. If he had not done so, he would have gone to prison. McClellan also explains the Founding-era surety system, which was the common law’s historical way of addressing threats of interpersonal violence. It did not include disarmament.
Regarding the failure of section 922(g)(8) to provide due process protection, see Gold Star Brief Written by Dan Peterson on behalf of law enforcement and firearms rights groups. Federal law does not provide any standard for proving the issuance of a DVRO under state law, such as the “clear and convincing evidence” standard, in order to trigger the possession prohibition under § 922(g)(8). Nor does it require the right to counsel or to a direct hearing, where evidence can be presented, witnesses can be examined, and other procedures necessary to achieve basic justice can be followed.
A return to the “reasonableness” test to determine the validity of restrictions on the Second Amendment is being advocated not only by friends of the United States, but also by some on the right. But, as Cooper and Kirk Brief On behalf of the Center for Human Freedom explains,
This is clearly “an invitation to the kind of unconstrained judicial policy making that has been rejected in… Heller And BruinThis brief also systematically refutes the government’s case, demonstrating that Section 922(g)(8) is irreconcilable with the history of firearms regulation in this country, particularly because it disarms individuals who have not been found to pose an imminent threat. Criminal Conduct Violent.
As for the arguments made by the amicus curiae for the United States to “transform long-rejected and repugnant discrimination into modern constitutional precedent,” David Koppel Brief On behalf of Second Amendment law professors he explains how they “have overlooked constitutional gun legislation that denies violating laws. The right to bear arms is governed by constitutional legislation, not by the violations that the legislation is designed to stop.”
Rahimi maintained the argument that, except for the Second Amendment, Congress has no authority under Article I, Section 8, of the Constitution to restrict the mere possession of weapons. the Brief The Firearms Policy Coalition explains how there is no such authority under the Militia Regulatory Clause or the Commerce Clause to prohibit the possession of firearms. The justices could have avoided Second Amendment arguments altogether by holding that the framers of our Constitution clearly gave Congress no authority to regulate non-economic matters within the states such as the relationship between intimate partners and the mere possession of a firearm in the home.
These are some of the highlights, and there are other great summaries. David Koppel Will also be blogging about the different summaries.
At the same time, the United States filed a dossier Sirt. Petition in Garland v. term. In this case, the Third Circuit en banc contract That the federal prohibition on a felon possessing a firearm is invalid as applied to a person who has not been convicted of a violent felony and is not dangerous. The government proposes that the Supreme Court hold the petition until My mercy It will be decided, and the petition will then be disposed of as necessary. I will provide an update on the case when Mr. Ring files his response