At Law & Liberty, Nelson Lund (George Mason/Scalia): Domestic Violence and the Second Amendment. From the introduction:
On November 7, the Court will hear oral arguments in United States v. Rahimi, which involves a challenge to a federal statute, 18 USC 922(g)(8). This law automatically criminalizes the possession of a firearm by an individual who has been ordered by a court not to place the subject’s intimate partner in fear of bodily injury to the partner or the partner’s child. The ban on possession is triggered if the restraining order either (i) includes a finding that the subject represents a credible threat to the physical safety of the intimate partner or child, or (ii) explicitly prohibits the use or threat of physical force that would cause bodily injury to the partner or child.
Because the plain text of the Second Amendment covers the possession of a firearm, Bruen’s holding requires the government to demonstrate that 922(g)(8) is consistent with this Nation’s historical tradition of firearm regulation. In some cases, this rule provides an intuitively plausible way to identify the original meaning of the Amendment. Neither the constitutional text nor its very sparse legislative history specifies the scope of the right to keep and bear arms. Absent such direct evidence of the Amendment’s meaning, it is unlikely that the founding generation meant to outlaw a widespread and settled type of regulation that was familiar and uncontroversial during the founding period. This is the same intuition that has led the courts to assume that the First Amendment does not forbid laws against perjury, fraud, or defamation.
Bruen does not contain much detail about the type and amount of evidence governments must produce. But it does indicate that the evidentiary value of historical regulations is greater if such regulations were commonplace rather than rare, if they were near in time to the Amendment’s adoption, and if they were distinctly similar to a modern regulation that the government is defending.
In Rahimi, the brief for the United States does not cite a single pre-twentieth-century American law that punished American citizens, even those who had been convicted of a violent crime, for possessing a firearm in their own homes. Not one.
And from the conclusion:
… [R]estraining orders that trigger the ban on possession need not be based on any evidence of prior misuse of a gun or of a proclivity to do so. A judicial finding of a threat to the physical safety of an intimate partner or child, for example, could be based on nothing but an allegation that an agitated man threatened to slap his girlfriend in the face or give their son a good spanking. In one case, a protective order was issued after a distraught man tried to block his ex-girlfriend’s car by lying on its hood. Such orders can be imposed with virtually no due process protections, and it is a serious mistake to assume that they are issued only against demonstrably dangerous individuals. Worse, 922(g)(8) does not require even an allegation of threatened violence. State judges often face enormous pressure to issue such orders, and little incentive to deny them, whether or not they are called for.
These orders are meant to protect a small number of specific individuals, and it’s easy to imagine cases in which the use of a firearm might justifiably be restrained. A state court judge, for example, might have good reasons to order someone not to bring a gun when he meets with his estranged wife. But even if the judge carefully tailors his order to suit the circumstances, 922(g)(8) automatically steps in with a complete federal ban on possession, which renders the man vulnerable to innumerable potential threats that have nothing to do with his wife or their relationship. And when divorce court judges routinely issue restraining orders against both parties, they may increase the danger of domestic violence by depriving the more vulnerable spouse of the means of self-protection.
The overbroad coverage of 922(g)(8) flouts the Constitution’s purpose, which includes protection for the inherent right of self-defense against violent attacks that the government cannot prevent. No one would defend a regulation that infringed the right of free speech in the way that 922(g)(8) infringes the right to keep and bear arms. Suppose a state court ordered a woman to refrain from making threatening phone calls to her former boyfriend. Congress obviously could not make it an automatic felony for that woman to possess a telephone. But somehow we’re supposed to believe that the same order may automatically criminalize her possession of a firearm for self-defense.
Besides the multiple defects that render 922(g)(8) unconstitutional, the statute looks more like a political performance than a serious effort to reduce abusive behavior. The states have ample tools for punishing and deterring domestic violence, and there is no evident justification for their decisions to be displaced by a federal statute. Nor is it apparent that this statute is authorized by the Constitution or Supreme Court precedent. On the contrary, it is hard to see how Congress would have such authority even if the Second Amendment had never been adopted.
I agree with the last point. If Congress doesn't have commerce power to criminalize possession of guns near schools, I don't see how it has commerce power to criminalize possession of guns in connection with state court restraining orders relating to domestic violence, none of which has anything commercial to it. (But I don't think this issue is in front of the Court.)
On the Second Amendment issue, interestingly Professor Lund's argument is much more favorable to Rahimi than the amicus brief filed by David Kopel on behalf of originalist Second Amendment scholars, mentioned in my previous post. From their summary of argument (at the end):
… [A]s accurately catalogued in the Solicitor General’s brief, there is ample original meaning precedent for limiting an individual’s arms rights based on a judicial finding that the person poses a danger to others. Therefore, state statutes addressing the same subject as 18 U.S.C. §922(g)(8)(C)(i) [ed.: which applies if there is a finding of dangerousness] can comply with the Second Amendment.
While subsection (C)(i) requires finding of “a credible threat,” subsection (C)(ii) [ed.: which applies if there is specific order prohibiting violent acts and threats] does not, and therefore is an infringement. The problem could be solved by changing a single word between §922(g)(8)(C)(i) and (ii): “or” to “and.” Making (C)(i) and (C)(ii) conjunctive instead of disjunctive would remedy the infringement in (C)(ii).
Posted at 6:33 AM