5th Circuit Rules Against Biden on Barring Gun Possession in Domestic Violence

 There is a major ruling this week in the United States Court of Appeals for the Fifth Circuit where a three-judge panel ruled unanimously in United States v. Rahimi that the federal bar on gun possession for individuals under a domestic violence restraining order violates the Second Amendment. The opinion is most notable for its exploration of the historical analogues supporting the rule, as required under New York State Rifle & Pistol Association, Inc. v. Bruen. The case also relied on a dissenting opinion in an appellate case, Kanter v. Barr, by then Judge Amy Coney Barrett, which I discussed during her nomination.

There is already a dog pile on social media as critics denounced the 5th Circuit as the nation’s “Trumpiest” and “exceedingly reactionary” court (as opposed to reasonably reactionary?). In reality, the opinion does not reject the underlying goal or even rule out a bar on gun possession in such cases. Indeed, the panel expressly states that “[t]he question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.”

The Fifth Circuit rejected a novel and sweeping interpretation by the Biden Administration that the Second Amendment does not apply to individuals deemed “dangerous” by the government. The DOJ relied upon the Court references in Heller and Bruen to “law-abiding citizens” but the panel noted that the Court used those references to say that there could be limits on the right and that its decision should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” It further noted:

Perhaps most importantly, the Government’s proffered interpretation lacks any true limiting principle. Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “non-law abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans.” Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal….

The panel does a deep dive on the historical analogues used by the Justice Department that is worth reading.

I was struck, however, by the reliance on the dissenting opinion in Kanter. In that opinion, the appellate court was dealing with the removal of guns from a person convicted of one count of felony mail fraud for defrauding Medicare in connection with therapeutic shoe inserts. Barrett rejected the categorical exclusion of such individuals:

In my view, the latter is the better way to approach the problem. It is one thing to say that certain weapons or activities fall outside the scope of the right. See District of Columbia v. Heller, 554 U.S. 570, 627 (2008) (explaining that “the sorts of weapons protected were those ‘in common use at the time’” (citation omitted)); Ezell v. City of Chicago, 846 F.3d 888, 892 (7th Cir. 2017) (Ezell II) (“[I]f … the challenged law regulates activity falling outside the scope of the right as originally understood, then ‘the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.’” (citation omitted)); Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) (Ezell I) (drawing an analogy between categories of speech, like obscenity, that fall outside the First Amendment and activities that fall outside the Second Amendment). It is another thing to say that certain people fall outside the Amendment’s scope. Arms and activities would always be in or out. But a person could be in one day and out the next: the moment he was convicted of a violent crime or suffered the onset of mental illness, his rights would be stripped as a self-executing consequence of his new status. No state action would be required.

The Rahimi case could offer Barrett a perfect opportunity to finish her work in Kanter in laying out more clearly this distinction.

Notably, not only are there other major Fifth Circuit opinions under the Second Amendment, the case could join other major cases working their way up to the Court from the Third Circuit and Second Circuit that could be heading to the Supreme Court if there is an interest in Bruen 2.0.

https://jonathanturley.org/2023/02/04/bruen-2-0-fifth-circuit-rules-against-biden-administration-on-barring-gun-possession-in-domestic-violence-case/