Courthouse Steps Oral Argument: United States v. Rahimi

[Music]

 

Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, November 7, 2023, we're delighted to host a Post Oral Argument Courthouse Steps on United States v. Rahimi, which was argued earlier today before the Court. My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's program, as The Federalist Society takes no position on particular legal or public policy issues.

 

      Now, in the interest of time, I'll keep my introduction of our guest today brief, but if you'd like to know more, you can access his impressive full bio at fedsoc.org. Today, we are fortunate to have with us Professor Mark Smith, who is a constitutional attorney, professor of law, and the host of the Four Boxes Diner Second Amendment channel. Those videos on YouTube have been viewed over 23 million times.

 

      Professor Smith is a Visiting Fellow at Oxford University's Department of Pharmacology, and he's also a Senior Fellow at the Ave Maria School of Law. Professor Smith is a New York Times bestselling author who frequently appears on the Fox News channel. Professor Smith has been published in many law reviews, including the Harvard Journal of Law and Public Policy. He is a graduate of New York Law School and a former federal law clerk, and I'll leave it there.

 

      As a last note, throughout the panel, before I hand it off, if you have any questions, please submit them via the Question-and-Answer feature, as we will be getting to those later in the program. But with that, thank you for joining us today, Professor Smith. The floor is yours.

 

Mark Smith:  Thank you, Chayila. I appreciate that. So today was a huge day for the Second Amendment's right to keep and bear arms. We had about a 90-minute oral argument, started at 10:00 a.m. What's interesting about the Second Amendment argument is that the government had to go first because usually, over the years, it's those that support the right to keep and bear arms that keep losing in the lower courts. 

 

      So it's highly unusual that we had a situation here where the Second Amendment advocates, if you will, the person advancing the Second Amendment, actually prevailed in the lower court, specifically, in a 3-0 decision in the Fifth Circuit Court of Appeals out of New Orleans. It was a decision that said that the relevant federal statute here, which is a gun control statute, 18 U.S.C., or 18 U.S. Code 922(g)(8), was unconstitutional on its face is what the Fifth Circuit said.

 

      Specifically, what 922(g)(8) says is that, if you are subject to a civil—and that's key—if you are subject to a civil domestic violence restraining order, then you are not permitted under federal law, as per Congress, to be able to possess a firearm anywhere in the United States. And mind you, just to give you a sense of the scope of this law, if you, let's say, are in a dispute, let's say, with an ex-spouse or someone you're going through a divorce with, whatever it is, in, let's say, Boston, Massachusetts, and there is an order entered that says that you two are supposed to stay away from each other during the pendency of the divorce, and you go ahead and move all the way across the United States to Phoenix, Arizona, thousands of miles away from your ex-spouse or the person you're going through divorce with or whatever it is—ex-employee, whatever it happens to be—then, under 922(g)(8), you are not allowed to possess a firearm, even though you're thousands of miles away from the person who's also subject to that domestic violence restraining order.

 

      And the only other context I want to bring in—then we'll talk specifically about what happened this morning—is that one of the other things that was raised in the amicus brief and actually mentioned in oral argument is, many times these domestic violence restraining orders are mutual, and what that means is that they basically apply to both parties.

 

      And sometimes one party may be more dangerous than the other party. Nevertheless, for the good of the order, it's not unusual. And this was brought up by many amicus briefs—I believe also by several public defender offices across the country—that both parties are basically disarmed, and that might be the case where a person who's a potential victim is disarmed as much as the person that might be the potential perpetrator. And I should note that that played a big role, as I see it, in the Fifth Circuit's decision that says the 922(g)(8) was unconstitutional under the Second Amendment.

 

      Now, with that context in mind, let's talk about what happened today, what I think is going to happen, and then where I think all this goes. To begin with, to cut to the chase it's in my opinion, that Mr. Rahimi, the man, the criminal defendant, is likely to lose this case. I suspect he's going to lose this case. It could be as much as 7-2, 8-1, possibly even 9-0. It's hard to say for sure, but I think that Mr. Rahimi himself is going to lose this case because, at the end of the day, the Department of Justice, when they were arguing this -- Bear in mind that, in the briefing—and this is quite interesting—the Department of Justice argued there was really two types of people that legislators such as Congress can disarm in America. One category is those that are not law-abiding. The other category is those who are not responsible.

 

      And what the Department of Justice argued in their briefs in the Rahimi case was that, if you were not responsible and/or you are not law-abiding, you could be disarmed. Now, that argument that the Department of Justice advanced -- Again, reminder, the Department of Justice spoke first; the Solicitor General, who did a great job, as she always does, spoke first.

 

      And what's interesting, in literally the first few minutes, Chief Justice John Roberts immediately quizzed her on this by saying, "Well, let me get this straight, Counselor: If I drive 30 miles per hour in a 25-mile-per-hour speed limit zone, have I somehow basically lost my right to keep and bear arms because now I'm not law-abiding; I'm not responsible?" And immediately the Department of Justice -- And I think this is going to be actually a potential problem for DOJ in future cases. She immediately conflated her position and said, "No, not true. Really, at the end of the day, it comes down to whether or not you as an American citizen are dangerous."

 

      Now, what's quite interesting is the Court then said, "Well, that's interesting because you could have just said that in your briefs and said dangerousness was the touchstone here." And basically the Department of Justice—the Solicitor General—said, "Well, yeah, dangerousness is really the key. Yes, we agree, but there's different ways you can get there." And at the end of the day, the Court should always defer, as I see it—this is what they argued—to the legislative body; in this case, Congress.

 

      So with that said, I do think that a comment by Justice Neil Gorsuch was telling because, once Chief Justice John Roberts made the comment that got the Department of Justice to concede that, really, dangerousness is the key issue, meaning if you are dangerous—i.e., a physically violent danger to yourself or to someone else—then you can be disarmed, which is really where the questioning from Chief Justice John Roberts took the Department of Justice.

 

      Justice Gorsuch then followed up and basically indicated that, "Hey, well, if that's the case, then here it seems to me that the record is such that Mr. Rahimi seems to be dangerous since, of course, he admitted and consented to the entry of this restraining order." And if you look at the terms of the restraining order, it's essentially conceding that the affidavit submitted by Mr. Rahimi's ex-girlfriend, I believe it is, said he was violent toward her in very specific ways.

 

      He consented and agreed to the sworn statement and consented to the entry of this restraining order. It seems to me, at that level, he may very well be deemed dangerous. And then, on a related note, Justice Gorsuch went on to indicate that there seemed to be plenty of history at the time of our founding, such as surety laws and also affray laws, that would indicate that someone who was a violent danger to themselves or to others could be disarmed. That did not seem to be a particularly controversial proposition.

 

      So a lot of what happened here in the oral argument was the Department of Justice under, Merrick Garland and the Solicitor General, of course, trying to broaden the scope of the interpretive methodology of Bruen. And this was a very big deal because, from the point of view of the Second Amendment community, those interests were concerned, I would say, because Mr. Rahimi himself—Mr. Rahimi, the man—had a record, at least based on the Court filings, that he was somewhat of an odious character.

 

      He had been involved with multiple shootings. He had engaged in violence against his ex-girlfriend and had done other things that were untoward. I think there was even allegations that he might have been connected to the drug trade in certain respects. So on this record, obviously, the man, Mr. Rahimi did not look particularly good or sympathetic.

 

      And I think there was concern on the part of those that want a robust or broad interpretation of the right to keep and bear arms that this particular case could be a problem in the sense that bad facts could make bad law. And I think the flip side, of course, was that the Department of Justice under Joe Biden obviously is sympathetic as a general matter to more gun control. I think that's fair to say.

      The Solicitor General basically was trying to expand the scope of those types of people that could be viewed as able to be disarmed and, on a related note, was trying to expand the scope of historical analog laws that could be used to justify modern-day gun control law, and I'll get to those specifics in just a couple minutes here.

 

      So with that tension going on, I would say Mr. Rahimi will lose this case. There will be a holding that 18 U.S.C. § 922(g)(8) on its face is constitutional. So, at one level, Mr. Rahimi is not going to be happy, but then the question becomes, when the decision comes out, how will, let's say, the Biden administration view the outcome of the case—favorably or unfavorably—and how will, let's say, the Second Amendment community view the case: favorably or unfavorably?

 

      Here's where I think it's going to come out, and then I'll elaborate on the Range case, which I think is coming down the pipe. I think the Department of Justice is going to view this as a missed opportunity. I think they thought that this was a very strong case for them to, again, have bad facts make bad law.

 

      And I think that they were very excited at the prospect of pushing this Rahimi case to the front of the line of Second Amendment cases before the Supreme Court because, historically, Second Amendment cases that are brought before the Court tend to be very sympathetic toward the citizen.

 

      Heller, you had an individual that was a former law enforcement officer who could not get a handgun. McDonald was you had Otis McDonald, an individual who'd lived in Chicago in a crime-ridden area, could not get a handgun, a sympathetic Second Amendment plaintiff. In the Caetano v. Massachusetts case, you had Jamie Caetano, a woman, who had been stalked by an ex-boyfriend and needed to use a stun gun to protect herself. And, of course, in Bruen, you had individuals that were undeniably upstanding citizens that just wanted to carry a gun for self-defense when they could carry a gun for all other reasons but for self-defense.

 

      So in every single one of those Second Amendment cases, we saw, really, the citizen was very sympathetic. So in this instance with Mr. Rahimi, his background and the allegations in the record, he obviously was nowhere near any of those other individuals. So I think that, again, the idea being this was a very good case to really test what's known as the Bruen methodology of interpreting the Second Amendment—which is the text first and historical analog law second—I think the idea on the part of the Department of Justice was that, to make sure that individuals like Mr. Rahimi cannot go free, the Court might bend over backwards and loosen or water down the interpretive methodology of Heller and Bruen of text first and historical analog second, that methodology.

 

      But I don't think it's going to work out that way because it seemed pretty clear that the justices thought that it was a very straightforward case that, if you are a danger to society, you can be disarmed, that there was a lot of examples of this going all the way back to the time of the founding. So it doesn't appear to be a particularly controversial issue here.

 

      On a related note, it seems to me that the U.S. Supreme Court is not going to get into some of the natty little questions that can come up in these cases because it sounded as if they wanted a narrow ruling here that would simply say that, on its face, 18 U.S.C. 922(g)(8) is constitutional under the Second Amendment, but I think they're going to write something in there that says, "Hey, but nevertheless, there's a lot of defenses that could be raised in future criminal cases involving."

 

      Commerce Clause arguments says that Congress lacks the authority to enact this kind of local domestic law enforcement statutes. You can see due process arguments. In fact, I should note that, several times, due process came up. What process was afforded to Mr. Rahimi in the context of the procurement of the state domestic violence restraining order that arose out of the state of Texas?

 

      And at the end of the day, I think Justice Barrett really hit the nail on the head where she's basically saying, "Look, you didn't argue due process down below. Your client consented to the entry of this order. The order specifically says he's not allowed to have a gun, and he signed off and swore to it with a notary, and there was a sworn affidavit that he didn't challenge or disagree with."

 

      So it seems to me the due process is a legitimate issue—and I think the court acknowledges it is a legitimate issue—but it was not really preserved in this case. So I think they're going to say that, although the statute is going to be upheld under the Second Amendment, there's a whole lot of as-applied challenges that can be brought against the government on behalf of American citizens in various ways.

 

      Now, from the perspective of the expectations of the Second Amendment community, I think there, again, was a lot of concern that the Supreme Court would use this case to water down or possibly even reject the Bruen methodology, but it's pretty clear that's not going to happen. And I think that one of the best tales about this is a comment made by Justice Barrett about the Bryan Range v. Garland case, which came up today.

 

      Now, the reason why I bring up the Bryan Range v. Garland case is because it is the case that the Third Circuit Court of Appeals, en banc, issued a decision that says that Bryan Range, who had been prohibited from possessing firearms under a different provision of 18 U.S.C. § 922(g) _-- Keep in mind that gun control statute 18 U.S.C. § 922(g) is the list of prohibited people and includes people like those subjected to domestic violence restraining orders. It also involves felons—that's 922(g)(1)—those that have been dishonorably discharged from the military, those that have been involuntarily committed to a mental health institution, and so on. So that's what 922(g) is.

 

      So what's interesting is this—and I think this is quite telling—Justice Barrett made a reference to the Range case. Now, the Range case, as we sit here is up on cert. It's up on a cert petition. The Third Circuit entered an order that said that Bryan Range, a nonviolent felon who was convicted something like 20 to 25 years ago of failing to disclose something like $500 in income on an application to the state of Pennsylvania's welfare program to collect food stamps or some sort of welfare, and that he failed to disclose that income. he pled guilty to fraud by not disclosing that.

 

      And as a consequence, because of the penalties that were potentially applicable under that statute to Mr. Range, he qualified as a felon as that term is defined by 18 U.S.C. § 922(g)(1), so he lost his gun rights. He brought a lawsuit under the Second Amendment, applying Bruen, of course, saying that he's entitled to his right to keep and bear arms because there's no historical analog law at the time of the founding that says that nonviolent felons or anyone that's nonviolent could be disarmed permanently.

 

      And the Third Circuit agreed with Mr. Range and says, indeed, "With respect to Mr. Range himself, because there's no evidence of dangerousness or physical dangerousness or violence or anything along those lines, we the Third Circuit Court of Appeals, en banc, agree that Mr. Range is entitled to have his Second Amendment rights, and 18 U.S.C. § 922(g)(1) is unconstitutional as applied to Mr. Range."

 

      Now, the reason why it's very important to understand this Range case in conjunction with the Rahimi case is that both of these cases were available for the Department of Justice to seek certiorari this spring, and the Department of Justice decided to push the Rahimi case first. And they waited until just about a month ago to see cert in the Range case, even though many commentators, including myself, pointed out that the Range case was a much more typical situation and is the case that the Supreme Court should take and is the case that the Department of Justice should push.

 

      And the reason why that's the case is, if you look at the number of prosecutions and convictions every year, under 922(g)(1) dealing with felons in possession, it is literally thousands and thousands of people every year get caught up in 922(g)(1). In contrast, the Rahimi case speaks to 922(g)(8), and there's only something on the order of magnitude of 15 to 30—that's 15 to 30—convictions every year under 922(g)(8), so it's rarely used.

 

      And I mention this because it is pretty clear from Justice Barrett bringing up the Range case, even though cert has not been granted -- And the Range case, I should note, is coming up for conference before the Supreme Court on November 17. It's coming up in just a couple of weeks. So I think it's quite telling that the U.S. Supreme Court is focused on this Range case, and I could see a real scenario where the Supreme Court grants cert in a few weeks to the Range case and we see two Second Amendment cases in this term dealing with 922: 922(g)(1), the Range case, and 922(g)(8), the Rahimi case.

 

      Now, one might say that that Range case could be held pending the outcome of Rahimi, and that would have been true up until this morning's argument. And this is another example where I point out that, strangely enough, although going into this argument I think the Department of Justice was optimistic about what the Rahimi case could do for their gun control agenda—and I think the Second Amendment community was concerned about what the Supreme Court might do with the Rahimi case that could cut back on Second Amendment rights—I actually think it may now backfire.

 

      And the reason why I say this is because, in a colloquy between the court and the Solicitor General today, trying to understand how the Department of Justice went from their papers being that people that are dangerous and unusual cannot have guns, too -- I apologize. In the briefs, they were trying to say people that were not law-abiding or not responsible could lose their gun rights to dangerousness and how this gotten morphed in the context of the oral argument today.

 

      The Solicitor General tried to explain it away by saying, "Well, what we're really getting at, Your Honors, in our brief, we're trying to say there's two buckets of people that can be disarmed by Congress or by the legislature. The first bucket is those that are not law-abiding, and those are people that are convicted of a crime."

 

      And then the Solicitor General said, "But there's a second bucket. That other bucket are those people that are not responsible." And the distinction that I think the Solicitor General was trying to make here -- and argued it, but you'll see why I think it's going to backfire in one second. She was arguing that the Rahimi case is an example of the latter category where, if you are not responsible, we can take away your guns, even if there's no criminal conviction.

 

      Keep in mind that the 922 (g)(8) prevents you from having a gun, even if you are not criminally convicted. The domestic violence restraining order is a civil process, and that civil process gives rise to denying your right to keep and bear arms, which, of course, the Supreme Court has repeatedly said is a fundamental right on par with other fundamental rights.

 

      So the interesting thing is the Department of Justice taking the position that the Rahimi case falls into the bucket of those people that are not responsible Americans, and then in contrast, she was arguing that people that had been convicted of a crime fall into the other basket of those people who can be disarmed. Those are people that are not law-abiding.

 

      But the problem, I think, from the Solicitor General's point of view—and I think Justice Barrett picked up on this, which is why she asked about Range—is, by delinking responsible people or irresponsible people from law-abiding or non-law-abiding people by creating two buckets there, I think the Solicitor General has basically opened the door for the Supreme Court to take the Range case and the Rahimi case -- because now the Rahimi case can be used in this term to clarify what it means to be not responsible, which I think is just dangerous, and likewise, dealing with the non-law-binding component, which is really the Range case.

 

      And I think Barrett sort of signaled that there's a good chance we may see both of these cases this term, which again, I think, is ultimately favorable for the Second Amendment jurisprudence to continue to get these cases because you know in many years, we'll see three, four, five Fourth Amendment cases. We'll see multiple First Amendment cases. We've never seen a Supreme Court term where there's been multiple Second Amendment cases, and there's really no reason why that cannot occur.

 

      Now, the other critical thing here -- and I just want to remind all of you of the Heller/Bruen methodology. In Heller, the Supreme Court concluded the District of Columbia's handgun ban was unconstitutional. Now, the methodology of interpreting the Second Amendment that the Heller Court did was originalism, and what I mean by that is they started off with the text of the Second Amendment; they defined all the terms in the text of the Second Amendment using 18th-century lexicography, dictionaries, or other sources; and then after that, they turn their attention -- Obviously, they concluded that a handgun was a form of arm, as in the right of the people to keep and bear arms.

 

      So then what they did is they shifted the burden to the government and said, "Okay. Is there any historical tradition in American law of disarming people of these commonly owned handguns?" And they concluded, no, there wasn't, and they created the uncommon use test. But the way the court did it in Heller was, again, they looked at the text first, and then they looked to see, is there a historical tradition that could justify the government being able to regulate handguns in some way?

 

      In Heller, it was, could they? Is there a historical tradition of banning commonly owned arms? And the Heller Court says no. So I mentioned that because this is a very important point to keep in mind that's often lost in commentary, which is, when people talk about the Bruen methodology, which, of course, arises from the 2022 decision of NYSRPA v. Bruen. The Supreme Court's methodology of interpreting the Second Amendment is identical to Heller's. It's the same methodology.

 

      You start with the text. If the text is implicated by the modern-day gun control law or by the conduct of the American citizen who wants to engage with guns, then the text is satisfied. The Second Amendment is presumptively viewed as binding, and the gun control law is presumptively viewed as unconstitutional.

 

      And that shifts the burden. It shifts the burden to the government, no different than a criminal case where, if you're indicted or charged with a crime, you are presumed innocent. The burden shifts to the government to show that you are guilty of the crime. It works the same way metaphorically here. Once the text implicates a modern-day gun control law, the burden shifts to the government, and the government has to meet its burden.

 

      So this is the critical part of today's Rahimi case as I see it. The question is, what is the government's burden? Now, we know what the government's burden is: It's a concept. Under the Bruen case, it says the government's burden is to come forth with proof of a longstanding, well-established historical tradition going back to the founding of a type of gun control law that is analogous to the modern gun control law they're trying to uphold.

 

      So, basically, it's a comparison of the gun control law in today's case of Rahimi, 18 U.S.C. § 922 (g)(8). You lose your gun rights if there's a domestic violence restraining order. You compare that modern-day gun control law with some historical laws going all the way back. Now, obviously, the more narrow the analog that you're looking for, the harder it is for the government to satisfy its burden once the burden shifts to it. The broader, more generalized analog that government is allowed to use to justify its modern-day gun control law, the easier it is for the government to win.

 

      So a major part of what was happening today at oral argument -- and you can see this with a colloquy going back and forth between Justice Kagan, Justice Sotomayor, and Justice Brown Jackson with the Solicitor General and with Matthew Wright, the attorney representing Mr. Rahimi out of the Federal Public Defender's Office. You saw a lot of colloquy on that side of the bench laser-focused on what kind of historical analogues or what kind of history can be used to justify a modern-day gun control law.

 

      Now, the first thing—and I think this is quite telling—is that, I think it was Justice Brown Jackson was concerned, and I think Justice Kagan expressed concern as well, whether or not you actually need a regulation on the books at the time of the founding or at the relevant time period.

 

      There can be some debate about the relevant time period, but at the end of the day, I think it's correctly the founding, but we don't need to get into that specifically because the truth is, when you're dealing with a federal statute, which is what we're dealing with in Rahimi—18 U.S.C. § 922 (g)(8) was passed by Congress—you don't need to get into the historical debate of whether or not post-Fourteenth Amendment history can potentially be relevant to the meaning of the Second Amendment because you're dealing with the federal statute.

 

      And the Second Amendment, when it was adopted, 1791, applied to the federal government. So you don't need to worry about those Fourteenth Amendment, late 19th-century historical analog debates in this context, but what's quite interesting is that Justice Kagan and Justice Brown Jackson really seemed to be interested in whether or not regulations were needed at all.

 

      In fact, this was clearly the position taken by the Solicitor General where she was arguing, especially in this particular case here, where she said that domestic violence, maybe wasn't really considered as a real problem at the time of the founding, which, by the way, is not true. If you look at some of the amicus briefs submitted in the Rahimi case, you'll see that domestic violence was absolutely frowned upon. There were all sorts of criminal and civil remedies, as well as religious remedies, by the way, to deal with domestic violence at the time of the founding. So to suggest that domestic violence was not considered a social problem at the founding is simply not true.

 

      Nevertheless, there was a lot of back and forth about whether or not regulations are actually needed, and one of the concerns I think Justice Brown Jackson really expressed was, "Well, wait a minute. This seems odd. If there are no regulations, then can't we look to other historical evidence?" And I know what that other historical evidence would be; presumably, affidavits or stories by historians, explain what they think the history is, but the Supreme Court in Bruen was very clear about the type of history; specifically, it has to be regulations.

 

      And I just want it to -- because I think this is important because this is where the fight was taking place om a big part of today's argument is the meaning of this language here from Bruen, which again, is really just an embellishment or reiteration of the Heller test and laid out more specifically in Bruen because a lot of the lower courts were not applying this test correctly between 2008 When Heller was decided and 2022 when Bruen was decided.

 

      And this is what Bruen said, and you'll see why this this argument today became so important. Specifically, they write, "In keeping with Heller, we, the Supreme Court, holds that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects the conduct," as the presumption right shifts to the government.

 

      "To justify its regulation, the government"—in this case, Congress—"may not simply posit that the regulation promotes an important interest; rather, the government must demonstrate—this is key—that the regulation is consistent with this nation's historical tradition of firearm regulation." That's what Bruen says. It specifically says "nation's historical tradition of firearms regulation."

 

      And one of the big issues going on today was that Justice Brown Jackson, Justice Sotomayor, and Justice Kagan were really trying to say that that framework or that discussion of regulation in Bruen is not really fair, that they could look at high-level generalized views of history at the time the founding, or whatever the relevant time period is, to try to glean principles from American history to then, in turn, justify modern-day gun control laws.

 

      Now, again, there's no specific issues along that line in this case, but it's pretty clear what the Department of Justice was trying to do is to try to influence the way the Rahimi decision will ultimately be written, to try to say that, yes indeed, history outside of the context of actual laws, such as state constitutions, such as the federal constitution, such as common law, such as statutes, that other things other than those things, those historical items, can be considered.

 

      And because, of course, if you broaden the scope of what can be considered to justify modern-day gun control laws, you've increased dramatically the odds of modern-day gun control laws being upheld. So let me carry on. So again, that was a big issue, but I don't think it's going to succeed because it seemed to me, based on that comment from Justice Gorsuch, that there were plenty of laws at the time of the founding that said that if you were violent, you could be disarmed. There did not seem to be a lot of controversy on that proposition.

 

      So I think we are going to see a decision in Rahimi that says that if you are violent, physically violent, you can be disarmed, at least during the period of time that you are deemed violent, and that 922 is facially constitutional. Now, just a couple other items I do want to flag. Some of the people were wondering whether or not the decision as to whether or not Mr. Rahimi himself is part of the people would occur at the textual level because, again, as I pointed out in Bruen and Heller, you start with the text of the Constitution, then once it's satisfied, you shift to the historical tradition of government regulation of firearms in this country.

 

      Now, the Department of Justice in their briefs was trying to argue that Mr. Rahimi, who undeniably is an American citizen, actually was not part of the people, as in the term as it's used the Second Amendment, i.e., the right of the people to keep and bear arms shall not be infringed.

 

      The Department of Justice in their brief really laser-focused to say that Mr. Rahimi, by virtue of his conduct, would be pulled out textually from the word "the people," but that really did not get a lot of play in today's oral argument because I think it's pretty straightforward. If you look at the Heller case and Bruen, they defined the people as basically all-American citizens and then some. Anyone that's connected in a real continuous way with United States, which obviously includes American citizens, are part of the people textually.

 

      And, of course, keep in mind that "the people" is not just found in the Second Amendment; that phrase is also found in the First Amendment and the Fourth Amendment, and I don't think there's going to be any suggestion that if somebody who's violent or dangerous or irresponsible and gets pulled out of the people textually from the Second Amendment, they would also theoretically be pulled out of the text of the First Amendment and the Fourth Amendment, and that would be quite shocking to a lot of people that have already been convicted of crimes no longer have Fourth Amendment rights to assert the exclusionary rule or arguments against unreasonable searches and seizures.

 

      So I think that the argument DOJ made and spent a lot of time on in the brief is not going to go anywhere. In terms of Mr. Rahimi is not part of the people, again, I think the issue will turn on whether or not, historically Mr. Rahimi can be disarmed as a matter of the tradition in America of disarming violent people.

 

      The only other point I'll make here before I open it up to questions—I've been going about 30 minutes—is this: There were two very powerful arguments that were made in the amicus briefs that I actually think will have real play down the road but not going to have play here. And it's pretty apparent that it's not going -- One is a due process arguments.

 

      It's clear that the Supreme Court is interested in what kind of level of due process might be required before you can be deprived of the fundamental right to keep and bear arms. Obviously, we know, in the context of those people that are mentally ill and that are involuntarily committed, there's a whole host of protections associated with that process under what are often known as the Baker Acts or civil commitment statutes. Those require availability of attorneys and experts, and if they can't afford it, they're provided with it by the state; a high standard of clear and convincing evidence; an actual trial; the ability to confront witnesses; and so on and so on.

 

      So I think the due process issue is going to play a big role in future 18 U.S.C. § 922(g)(8) cases, but basically, everyone agreed that this had been waived and wasn't really part of the question presented and would not be dealt with in any robust way in the Rahimi case. But look for due process issues associated with Second Amendment challenges down the road.

 

      The other thing that I think is very powerful is there was a very powerful Commerce Clause argument using a whole host of precedents, saying that there is nothing in Article I of the U.S. Constitution that would allow Congress to step in and do what they're doing vis-a-vis these local law enforcement activities, which, of course, 922(g)(8) deals with local domestic violence restraining orders done at the state level or the local level.

 

      And I think there is a pretty good argument based on some Commerce Clause arguments that have prevailed in the past, including, for example, the case involving, I think, the Violence Against Women Act. So I do think we're going to start to see some Commerce Clause arguments against some of these federal statutes.

 

      Obviously, that argument would not apply to gun control law enacted at the state level because you don't have an Article I problem or interstate commerce argument, but I do think we should keep our eyes on that coming down the pipe. And with that said, that is my quick summary, and I'll be happy to answer any questions.

 

      Obviously, a lot of news. Ninety minutes was a long argument, a lot of back and forth. I think both lawyers did a great job, and I have to applaud specifically Matthew Wright. Tough case, I think a tough client probably, a lot of difficulties, and I think he did an upstanding job in an extremely difficult case against the Solicitor General of the United States. So those federal public defenders, they have tough jobs, and Matthew Wright, I think, acquitted himself well today. So happy to open up to questions.

 

Chayila Kleist:  Well, thank you for that presentation. Really appreciate it. And I know our audience is already submitting questions, so we'll just hop straight in. First question from our audience: Do you have a take on why the Court didn't address Article I arguments today?

 

Mark Smith:  Yeah, I think it was viewed as waived, because it was discussed to some degree, but basically from all evidence, the argument about the Commerce Clause in Article I was not discussed, presumably because it wasn't raised in time to -- Also, the question presented in Rahimi itself is specific to the Second Amendment.

 

      But I think, at the end of the day, if you look at the record, it appears as if the Commerce Clause argument had not been made previously. That's not to say it's not a great argument, but I think in this context, it was waived and not raised, and I think that's probably the problem in this context.

 

Chayila Kleist:  Got it. Next question. Do you think Justice Gorsuch's comments about the appropriate level of generality going both ways were hinting at semi-automatic rifle bans and magazine capacity limits and whether or not those violate the Second Amendment?

 

Mark Smith:  Well, actually, I have a note. I'll tell you this: The answer is, for those of you interested in the "assault weapon bans," very good news for you because there's two concessions that were made, one specific to s Now, just to be clear about our terminology, the phrase "assault weapon" is a political propaganda term.

 

      Anything can be an assault weapon. If I pick up a candlestick and hit someone over the head, it's an assault weapon, right? So with that said, what we're really talking about when we talk about "assault weapon" cases are commonly owned semi-automatic rifles and magazines that hold more than 10 rounds. That's right down the middle. That's what we're talking about. No different than the semi-automatic pistols and the handguns and the revolvers protected in Heller in 2008 and referenced in the Caetano concurrence by Justice Alito, again, in 2016.

 

      Now, with that said, critical -- And this is something that's important. When the Solicitor General was arguing this morning, I made a note of this. She said that once the Supreme Court determines the relevant historical principle, there is no need to go back and do a historical analysis.

 

      Now, this is damning for those jurisdictions that are trying to enact semi-automatic bans of semi-automatic rifles or magazines or any kind of arms, and here's why. The Heller decision did the methodology we talked about, which is the Bruen methodology. They're the same. You start with the text, burden shifts to the government, then you do the historical work at the historical analog level. That's the legal interpretation. That's the process where you interpret the Second Amendment.

 

      Now, at the end of that process, that gives rise to a legal test, and the Supreme Court in Heller came up with the legal test. Having done text first and history second, they came up with the legal test of, if an arm is in common use today by Americans for lawful purposes, it cannot be banned.

 

      So by this concession here—and I'm sure you're going to see this quoted in Second Amendment-related briefs down the road—the Attorney General the United States and the Solicitor General have said that, once the Supreme Court decides the legal test governing a particular kind of Second Amendment challenge, that's it; it's game over. It's dispositive.

 

      And when you look at Heller, it's dispositive that the legal test for any kind of arms ban, such as "assault weapon" bans is the "in common use" test. If it's in common use by Americans for lawful purpose, it cannot get -- and the reason why that is, is because the historical laws that the Heller case figured out was that the only historical tradition of banning any kind of arm at the time of the founding were those bans that prevented carrying dangerous and unusual guns. And if something is in common use, it cannot, by definition, be dangerous and unusual because it cannot be unusual.

 

      So this morning's concession by the Solicitor General and the Department of Justice, to me, is an extremely big deal, not a good deal if you like gun control and bans on "assault weapons" and a positive deal if you support the Second Amendment right to keep and bear arms as written.

 

Chayila Kleist:  Thank you. We have a couple questions that have been relating to this issue of dangerousness and groups being classified as dangerous, so I'll roll them into one. If the Court does proceed with the dangerousness standard, what would be the restrictions or limitations on Congress deeming particular groups dangerous?

 

Mark Smith:  Well, there's two theories that are being advanced in today's argument, so to be fair, I'll touch on each of them. The Department of Justice's argument is that, really, decisions about -- So they really said, "Look, if you're dangerous, you can be disarmed," but then they went on to say—and this is the Solicitor General's Office—that the determinator, the person that decides who is dangerous and what constitutes dangerousness, is the legislative body.

 

      So there's this notion in the argument today by the Solicitor General that we are to defer to Congress at the federal level and the state legislatures at the local level to determine what is dangerous. Now, that's highly unlikely to think that the Article III judges in the Supreme Court are going to allow Congress to simply label something dangerous without real pushback and analysis. So I don't think that's going to fly, but that was the argument by the Department of Justice.

 

      But then if you look at what dangerous is, I think it's pretty clear what we're talking about is violence, physical violence, not metaphors like "Oh, that presidential candidate is a danger to democracy." I don't think that's going to fly under the Second Amendment analysis, but again, I think we're really talking about violence. People who are violent to themselves or to others is what we're really talking about, dangerousness.

 

      And I should note, when I mentioned that Range case is pending, that really is the critical issue in the Range case because the Third Circuit, en banc, said that Mr. Range never loses his Second Amendment rights under 922(g)(1) because he was never found by anyone to ever be violent or dangerous or anything, and thus, he has his right to keep and bear arms. It cannot be taken away by Congress.

 

      And keep in mind, just for those of you who remember confirmation hearings, one of the reasons why I think Justice Barrett actually got on the Supreme Court is because of a very powerful, well-thought-out originalist decision that she wrote in a dissent in the case of Kanter v. Barr when she was on the Court of Appeals. And in that case, she said that nonviolent felons, under certain circumstances, can indeed get their gun rights back or never lose their gun rights because they're not found to be dangerous, and she did an originalist analysis.

 

      And I think that dissent she wrote in Kanter v. Barr is significant because that certainly helped her get on the Supreme Court is my guess. And I think that she's well-versed, and she is the one that brought up the Range case. So I do think this case, coupled with Range, is going to be how they really draw that line because what we're talking about here is line drawing: who's on one side of the line as dangerous and who's on the other side of the line as not dangerous.

 

Chayila Kleist:  Got it. Thank you. Another question, and this is more general. And you mentioned the Range case. Are there other Second Amendment cases coming up or possibly coming up in this term?

 

Mark Smith:  Well, you have the Rahimi case and possibly the Range case. This is not specific to guns, per se, but you have the First Amendment case involving the NRA. I think it's NRA vs. Vullo. I think I pronounced that correctly. That came out of the Second Circuit. That's by the NRA, so obviously, it touches on guns if it's the NRA. That's a First Amendment argument about whether or not the State of New York engaged in violations of the NRA's First Amendment political speech. I'm not that familiar with that, but that's the gist of it.

 

      And you also have cert has been granted to the so-called bump stock case, which is a very big deal if you start talking about regulatory issues facing gun companies, people in the gun space, people that own stabilizing braces, frames, and receivers; again, those sort of technical issues. So right now, there's three gun cases, and if Range is granted cert, there will be four gun-related cases before the Supreme Court, two of which will touch on the Second Amendment.

 

      And with that said, I actually did a video on the Four Boxes Diner channel just the other day on a case that was argued out of the Fifth Circuit. That case speaks to, I believe, 18- to 20-year-olds. And one thing we should be looking down the chessboard at is, will there be an 18- to 20-year-old case that says that 18- to 20-year-olds are part of the people textually and there's no historical basis to disarm 18- to 20-year-olds?

 

      In fact, it's just the reverse because, if you look at the Militia Act of 1792, adopted by Congress literally one year after the Second Amendment became the law of the land, 18- to 20-year-olds were actually part of the so-called national militia, who had an obligation to bring with them to militia musters their very own privately procured firearms, ammunition, black powder, rifles, and muskets and whatnot. So obviously, 18- to 20-year-olds had a right to acquire guns at the time of our founding because, if they didn't have a right to acquire guns at the time of the founding, they couldn't have shown up for militia duty, which was, of course, connected to the Militia Act of 1792.

 

      So I think the next case coming up, if you want to look down the chessboard, is probably that case out of the Fifth Circuit dealing with federal firearms dealers being able to sell guns to 18- to 20-year-olds. I think that's a federal statute that's likely going to be struck down by the Fifth Circuit. That means the Department of Justice will seek cert next spring, I'm guessing, and will have to grant cert because, whenever a federal statute struck down and the SG asks for cert, it's almost always granted. So I think that will be a case for next term if you're trying to look down the chessboard.

 

Chayila Kleist:  Got it. Continuing on the question of other cases, an audience member asks—and you may have touched on this a little bit in your opening—how will today's arguments affect the Range case; help, hurt, etc.? 

 

Mark Smith:  I think it's going to increase the odds of Range being granted cert. As I mentioned, the Department of Justice had an opportunity -- because the Department of Justice's argument is that Range should not -- the DOJ argued that the Range case should be granted cert but that it should be held pending the outcome in Rahimi because they're interrelated and the same concept.

 

      But the Range lawyers came back and said, "No, they're different" because Rahimi deals with the civil process of disarming people under 922(g)(8), people who are getting disarmed civilly who have never been convicted of a crime. It's really a form of, if you think about, preventative justice, trying to prevent someone ahead of time from doing violence. It contrasts the Range case, as someone has been convicted of a crime already, but because the crime had nothing to do with violence or danger or anything like that, they should never lose their right to keep and bear arms, regardless how Congress defines the law.

 

      And again, I think the Department of Justice Solicitor General's office had an opportunity to try to explain how they're interrelated, but instead, as I understand the argument, the Solicitor General actually broke them apart into separate buckets, which I think dramatically increases the odds of Range being granted cert because now there's no need to hold it back, because the Solicitor General just said they're really distinct problems.

 

Chayila Kleist:  Thank you. Another audience question. You mentioned the Commerce Clause as a basis to attack Section 922. Is it likely to be the avenue to topple laws like 922(o) in the wake of Miller and Duncan v. Bonta, and what are other barriers to SCOTUS hearing such a challenge?

 

Mark Smith:  Well, I think Duncan v. Bonta and Miller, if you're talking about the state cases, I don't think the Commerce Clause helps there because, as I mentioned, the Commerce Clause is really something that is a restriction on federal authority, federal power, because you're trying to interpret Article I of the United States Constitution. Article I is the list of enumerated powers given to the Congress.

 

      But I think Miller v. Bonta and Duncan v. Bonta, those arise out of California state laws, so you really aren't going to have a Commerce Clause problem there, but I do think that you could have strong Commerce Clause arguments going forward.

 

      Keep in mind that, before then-Judge Alito became Justice Alito, he wrote a dissent in a case called Rybar. In that case, he said in his dissent that what's known as the Hughes amendment -- and the Hughes Amendment says that you can no longer make and manufacture new machine guns for Americans, outside of exceptions for law enforcement and manufacturers and whatnot, but ordinary Americans cannot buy new machine guns after 1986.

 

      And in his dissent, Justice Alito asked, "Well, this ban on making and ban on acquiring new machine guns manufactured after 1986, how is this consistent with the Article I Commerce Clause jurisprudence?" Now, that was decided by Judge Alito in the 1990s in the Rybar case, but I do think that there will be more of a focus on federal power.

 

      We are certainly seeing concerns by the Supreme Court about, for example, presidential power and executive power with some of their regulatory case issues, which is why I think the bump stock case is an issue of ATF authority. And, of course, the Loper Bright case dealing with -- I don't want to screw this up, but it's one of the Fish and Wildlife-related federal agencies, which, the question presented there is, is the Chevron doctrine still good law or should we overturn it? That's a big deal, and that's coming up this term. And, of course, cutting back on federal government authority, meaning bringing it back to where it was originally by our Founding Fathers' visions is certainly something the Supreme Court appears to be attuned to.

 

Chayila Kleist:  Next audience question: There was some interest from Justice Brown Jackson and Solicitor General in rewriting what they termed a confusing Bruen test. Given the arguments today, how likely is a new Second Amendment test, given the result of this case?

 

Mark Smith:  I'm sorry; could you just say -- What kind of test was it?

 

Chayila Kleist:  Absolutely. So there was some interest, at least from Justice Brown Jackson and the Solicitor General in rewriting what they termed the confusing Bruen test. Given the arguments today, how likely is a new Second Amendment test to be the result in this case?

 

Mark Smith:  Yeah. I think at this point, after argument, it's zero percent. And just to take that that question a little bit to the next level why I think it's zero percent, like I said, Justice Brown Jackson, Justice Kagan, Justice Amar, there was back and forth with the Department of Justice about, again, how do we deal with problems where there is no historical tradition of regulating guns, and yet we want to regulate guns today? And the answer is, "Well, you can't because, unless you want to amend the Constitution, the Constitution is what it means at the time it was adopted in 1791.

 

      This is the critical language from the Bruen case that there was a lot of back and forth on. And it's crystal clear, and there's absolutely nothing that occurred in the briefing or absolutely nothing that occurred in oral argument today that I think will cause the Supreme Court to cut back on what I'm about to read, which could not be clearer.

 

      And keep in mind, six—that's six—Supreme Court justices signed off what I'm about to read in the Bruen case. This is what it says: "When a challenge regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment."

 

      And then it goes on. I won't read all of this, but the bottom line is, it's crystal clear that, if there's a general social problem that has existed since the 18th century -- And this is where you got into some of the debate about domestic violence. Did domestic violence exist at the time of the founding and was it viewed as a problem?

 

      Because, obviously the Department of Justice doesn't like this language because, if you have domestic violence as a legitimate -- not a legitimate, but a real problem that was considered and dealt with at the time of the founding in the 18th century, and one of the solutions was no gun control, that does cut back on the power in historical traditions of American government being able to regulate this.

 

      And that is why they were trying to say that domestic violence was not considered violence at the time of the founding and also the fact that they can't find historical regulations. Again, the dirty little secret here is, for those people that support more gun control in America, they desperately do not want to be limited to simply referring to laws on the books at the time of the founding, even though there are massive numbers of laws on the books.

 

      Again, federal Constitution, state constitution, common law, Blackstone's commentary summarizing laws, all these things, including statutory law, you get tons of laws; it's just none of them really help them do what they want to do in the modern gun control context. And is anything going to change based on what I just read from Bruen?

 

      I think the answer is absolutely not, although that was a legitimate concern as of 9:30 a.m. Eastern time this morning. But the way this argument went, I would say it's now basically zero percent, but, of course, we won't know until we see the opinion. But my guess is that viewpoint, the gun control viewpoint, the Merrick Garland viewpoint probably is not going to get very far with Rahimi.

 

Chayila Kleist:  Got it. Well, thank you. Appreciate it. I know we're almost to the top of the hour, but we'll try to get at least one, maybe a couple more questions in. So it seems a question was asked about CCW holders. Will this lead to striking down the good moral character requirement that is used in the permitting process of some states?

 

Mark Smith:  Well, we have an extremely smart group of commentators and questioners. So there actually is very interesting information on that front that came out of this morning's argument. This is another concession that the Solicitor General made, which, again, fascinating that they hadn't thought -- I don't know. In my view, it doesn't appear like they thought this through maybe as far as they needed to.

 

      Specifically, what the SG argued -- And you'll see why this involves concealed carry weapons holders. The Solicitor General basically talked about that, when you're dealing with discretionary evaluation of dangerousness, it is likely not allowed by executive officials. Now, why is that so important? The Solicitor General this morning was really arguing that the branch of government that can make the determination about who's dangerous and who's not is the legislature, the Congress, state legislature, not the executive branch.

 

      Now, who exactly is responsible for dealing with a lot of these concealed carry weapons licensing applications and processes? These are executive branch officials. These are either law enforcement officials, these are either people that work ultimately for governors and states, they're the state police department, these are executive officers. We'll double check the transcript, but if you look at what the Department of Justice argued this morning, it seems to say that those executive officers, which is the police department -- The police department is executive. That's not a legislative function. That's an executive function of enforcing the law created by the legislature.

 

      So, according to the DOJ argument this morning, the discretion would be taken away from those executive branch officials, which would include those law enforcement agents and officers who are responsible for doling out concealed carry permits in several states across the country under "shall issue" permitting regimes.

 

Chayila Kleist:  Got it. Last question: If irresponsible is narrowed to mean dangerous, how could this impact other pending 922(g) cases that deal with habitual drug users in possession of a firearm with no suggestion of violence?

 

Mark Smith:  Well, before we close, I just want to say, if anyone has additional questions, I get thousands of comments every week, so it's difficult for me to get to everyone. But if you go to my YouTube channel, the Four Boxes Diner, and you comment there, I can often respond there, but I can't guarantee it.

 

      But if there's people that have questions they want to continue to ask me, you can try it there or on X @fourboxesdiner. You can check it out there, and sometimes I can get to these questions. But with that said, the issue here is -- Chayila is the issue about -- Go ahead and read that one more time. I just want to make sure I get that right.

 

Chayila Kleist:  The question is about 922(g) cases that deal with habitual drug users in possession of a firearm who have no suggestion of violence.

 

Mark Smith:  Yep. Well, I think that's a great question. I think it's a difficult question in one sense and an easy one in another sense, and this goes back to line drawing. Who is dangerous? Who falls on the bad side of dangerousness, and who falls on the good side, meaning not dangerous?  And I think when you start to deal with activities like -- And I think it turns on this.

 

      If you're dealing with drug dealing, you're in the business of drugs. It's your profession, if you will, I think there's a very good argument that that conduct could very well being deemed dangerous because the only way to enforce your contracts, if you will, with fellow drug dealers is presumably by using violence to enforce your arrangements because you certainly cannot go to court and say, "Hey, he stole my cocaine and owes me 20 percent on the sale." That's not going to fly.

 

      So I could see a situation where a drug dealing would be viewed as violent because it gives rise to violence. That's how you enforce the law of your world. It's kind of like the mafia. The way they enforced their law, if you will, on the streets was through the threat of violence. In contrast, I do think if you're dealing with pot use, things like that, obviously, it may be a different world, especially where you see the loosening of these state pot laws, which is kind of odd because marijuana remains a regulated substance under federal law, but a lot of states are just letting it go, and the feds don't seem to be doing much about it.

 

      So I think there's going to have to be some line drawing here, but I do think just conceptually -- And don't hold me to this if I write a law review five years from now that says something else, but I do think, conceptually, drug dealing could be probably viewed as dangerousness, or organized crime could be viewed as dangerous, and I think maybe ordinary use.  perhaps not so much. I think maybe that's more akin to being intoxicated where, if you're actually intoxicated with a gun at the time of the founding, that could be a problem, but if you're in a tavern where people are drinking and you're not drunk but you're just around drinking or sometimes you drink at home, I'm not quite sure that would be dangerous.

 

      But again, this these line-drawing exercises will have to play out down the road, probably after Rahimi is decided and maybe Range. And then after that, we'll be able to do a better job of drawing lines as to what's dangerousness and what is not dangerousness.

 

Chayila Kleist:  Got it. Really appreciate you taking the time. We'll have to wrap it there. Unfortunately, we are at the top of the hour. I know we didn't get to all the audience questions, but we really appreciate you joining us, Professor Smith. Thank you for your time and expertise, and thank you to our audience for joining and participating.

 

      As always, we welcome listener feedback by email at [email protected], and, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events or live streams, including, upcoming later this week, the live streams of all our National Lawyers Convention panels, which will happen Thursday through Saturday, including a panel featuring Professor Smith, which will happen, I think, 11:00 a.m. Eastern on Saturday. So audience, feel free to tune in. And with that, we can wrap it up. Thank you all for joining us today. We are adjourned.

 

[Music]