In March of 2023 a petition for writ of certiorari was filed with the Supreme Court of the United States in a case called United States of America v. Zackey Rahimi. The Rahimi case has caused quite a stir and uproar from different levels and directions. It’s difficult to separate the wheat from chaff on what’s important, at stake, and relevant. Since it was the U.S. government seeking the reversal of a lower court’s decision against a federal law, it’s probable on why SCOTUS granted that petition. The Second Amendment Foundation recently filed an amicus brief that really gets to the core of what the conflict really is in this case.
The controversy at hand is whether or not the wholesale banning of an entire class of persons is constitutional when looked at through a “founding era” lens. Rahimi is a prohibited person under “18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domesticviolence protective orders” and the U.S. asks the court whether or not the law “violates the Second Amendment on its face.”
The tactic that the SAF takes in their brief acutely focuses on important historical tradition.
SAF’s interest in this case is based on the fact that many firearms owners in this country suddenly find themselves subject to civil restraining orders, which deny them their fundamental constitutional right to keep and bear arms in a manner that does not comport with the Second Amendment’s text, as informed by history.
The historical analysis track is an important one to take. While many, myself included, might maintain that there are due-process violations, since the orders are civil in nature but leading to criminal penalties, The SAF’s Executive Director Adam Kraut observed while discussing the brief, “Laws mandating total disarmament, in the relevant historical period, were related to disarming loyalists to preserve the integrity of our newly-formed government. The current federal law governing how gun owners’ rights are treated in relation to civil restraining orders lacks any well-established historical analogue.”
The case is not about whether or not Rahimi is a “good” person. The SAF amicus brief cuts right through all the red tape that might be put up and can only point to one distinct class of persons that were barred from arms possession in the late 1700’s.
Historically, at the time of the Founding, any laws that disarmed an entire category of people were limited to those individuals who remained loyal to the crown because they posed a threat to the success of the patriot cause in the Revolutionary War. Many of these people were literally considered to be enemy combatants and the total disarmament was viewed in the context of a war and the survival of a fledgling nation. Today’s laws that disarm private citizens subject to civil restraining orders must be considered in a peacetime context, where national security is not an issue.
Pairing SAF’s position along with the scores of other amici briefs, it’s going to be difficult for the high court to rule against themselves in this instance. The law, as it stands, is either analogous with regulation at the time of our founding or not.
“Our specific interest in this case focuses solely on current laws and how they may, or may not, comport with historic precedent from the Founding era,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Under Bruen, the government must affirmatively prove that its firearm regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
How the Rahimi case is going to shake out is not known. It seems like we’ve all been on a rollercoaster of thoughts surrounding the case, and the noise from anti-civil liberty groups does not help. The court is not ruling on whether or not it’s okay for a man to beat a woman – what some will allege the case is about.
The court needs to rule on whether or not such blanket prohibitions were okay in 1791. The rest of the argumentation about how such measures are indeed due process violations, etc., really do come secondary to asking if such a prohibition would have been accepted by the scaffolders of the Constitution. Is it okay to strip a civil liberty from a person who has not been criminally convicted? We might not even have to ask that narrow of a question if we can’t get past the lack of an analogue.
