The Evolving World of Gun Rights
It was only fourteen years ago that the Supreme Court upheld the constitutional, individual right to bear arms (Heller), and only last year when the Court announced a new test/standard by which to judge all gun laws (Bruen). Gun right/control law is the wild west of constitutional law right now making the United States v. Rahimi case currently before the Court a potential landmark case.
Zaki Rahimi assaulted his girlfriend. She did not assert criminal charges, but she obtained a Domestic Violence Restraining Order (DVRO)—a family law judge found Rahimi posed a risk of future violence in a civil court proceeding where Rahimi did not have the same due process protections, like the right to counsel, of a criminal case. Federal law passed before gun possession was constitutionally protected makes gun possession in violation of a civil-court-issued DVRO a federal crime.
Rahimi ignored the DRVO and later took a shot at a fellow driver in a road rage incident, shot at a guy over a social media beef, and even shot up a Whataburger drive-through sign. He was eventually caught with a gun and charged with gun possession in violation of a DVRO. The lower-court held that the DVRO-gun-prohibition was unconstitutional because it violated Rahimi’s right to bear arms. The government appealed.
In the 2022 Bruen decision, the Court said that when analyzing gun laws courts are supposed to dive into history and see if there were “analogous restrictions” during the founding era. In the year after Bruen, over two dozen courts have struck down gun control laws on an absence of sufficiently analogist historical gun restriction, and the lower courts are begging the Supremes for guidance.
Late 1700s society did not even recognize the concept of domestic violence. Domestic violence was not a stand-alone crime and there certainly were no laws that protected women from the threat of future violence through civil court proceedings. An analogous restriction would have to be based on a broader concept in Rahimi.
The Government argued last week that the law historically protected legal and responsible gun possession and that Congress may disarm those who are not law-abiding, responsible citizens. In Rahimi, the “law-abiding” part of this proposed analogy cannot be used because Rahimi has never been convicted of anything but the gun control law itself. The DVRO is issued by a civil court on proof of the potential for future violence and is not a criminal conviction. In Rahimi, the government was forced to rely on the “responsible” part of its proposed analogous restriction and argued that Rahimi’s irresponsibility made disarming him constitutional.
No one disagrees about this Rahimi fellow, but Chief Justice Roberts questioned the government’s argument in theory pointing out that that “responsibility” is a very broad concept and can be based on behavior that has nothing to do with the risk of gun possession. The government responded that “irresponsibility” cannot be a general determination, the determination must be intrinsically tied to the danger the person presents with a gun. The government said irresponsibility was akin to dangerous—arguing that the laws from the founding era allowing the government to disarm people who are dangerous is the “historical analogous restriction” that satisfies the Bruen test.
In a flip of the script, conservative-leaning gun rights organizations argue that the government’s argument is bad for minorities, pointing out that under the government’s logic a strong majority could use certain “irresponsible behavior” as a pretext to disarm minorities—loss of gun rights for failure to pay child support, failing to pay parking tickets, failure to have insurance, failure to have photo identification, etc.; all of which would have a disproportional effect on the gun rights of the minority, and if the Second Amendment means anything it means that the minority is entitled to protection from the majority. These proponents argue that using “dangerous” as a justification to disarm poses similar problems such as the risk of the government using socio-economic status (age/race classification) and the corresponding risk of gun violence to determine who is too dangerous to possess a gun. Gun groups insist that nothing short of a criminal conviction for a violent crime should justify the loss of the right to bear arms.
Two cases coming up will add clarity or confusion to the issue. One case involves a man who lost his gun rights thirty years ago based on the felony crime of making false statement to obtain food stamps, arguing that laws stripping all felons of gun rights are unconstitutional after Heller and Bruen because his conviction does not show any danger posed by him possessing a gun. Another case is by a man convicted of felony marijuana possession. He argues that marijuana use is no different from (and arguably better than) alcohol use in terms of the danger posed by gun possession, therefore, he should not be deemed dangerous/irresponsible based on the marijuana possession charge alone. If Rahimi is decided based on a historical power of government to disarm the dangerous, the Court will have to find another justification to uphold convictions in these two cases.
Mitchell Driskell has practiced law for twenty-two years, currently with the Tannehill & Carmean firm. Outside of the office, he dominates in Pickleball and Candy Crush. You can reach him at 662.236.9996 or mitchell@tannehillcarmean.com. He practices personal injury law, criminal law, and family law.
