The US Supreme Court delivered a decision in United States v. Rahimi Friday, June 21. Eight of the nine justices ruled that the law disarming Zackey Rahimi after a Texas civil court judge granted his girlfriend a restraining order against him for domestic abuse did not run afoul of the Second Amendment. Only Justice Clarence Thomas disagreed, arguing in his dissent that “Not a single historical regulation justifies the statute at issue.”
So what does this mean for Mr. Rahimi and others in similar situations? More broadly, what does it mean for modern gun control laws in general and any who may hope to make a Second Amendment case against being disarmed?
Disarming ‘Dangerous’ Folk – But Only Temporarily
The decision explains that, in the British common law that existed before there even was a United States, magistrates could require people suspected of future misbehavior to post a surety bond. If they failed to pay the bond, they could be jailed. Those who did post bond and then broke the peace would forfeit their bond. Then there’s the “going armed” laws, which the decision explains are “a particular subset of the ancient common law prohibition on affrays, or fighting in public.” These prohibited people from “riding or going armed, with dangerous or unusual weapons, [to] terrify [ ] the good people of the land.” Those who violated these laws forfeited their arms and faced imprisonment.
Since some states and localities incorporated similar regulations that prohibited going armed, the Court ruled that people who have been declared by a court to be a credible danger to the public can be temporarily disarmed, and so the law that removed Mr. Rahimi’s right to keep and bear arms was constitutional.
This prohibition, however, is temporary, and lasts only so long as the restraining order and only if that order includes a finding that the subject “represents a credible threat to the physical safety” of another.
What About Felons – Or Hunter Biden?
What might this mean for Hunter Biden’s appeal, or anyone else’s claim that other categories of prohibited persons are unconstitutional? The president’s son was recently convicted of three felonies for lying to a gun dealer and on the ATF form about his history as a drug addict and for possessing a firearm as a prohibited person, and he’s widely expected to appeal the convictions on the grounds that the case violated his Second Amendment rights.
Violent felons, certainly, would fall under the category of people declared by a court to pose a credible threat to others. But what about those with non-violent crimes? It would seem that those, like Hunter Biden, with a history of drug use or who were convicted of felonies that didn’t include actual violence or even the threat of it would still have a case to make after this ruling.
The majority opinion does, however, reference Antonin Scalia’s opinion in DC v. Heller, specifically his mention of felons and the mentally ill. It clearly alludes to a line often quoted with disdain by gun rights enthusiasts:
“Although we do not take an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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, or laws imposing conditions and qualifications on the commercial sale of arms.”
Why the disdain? Because it calls “longstanding” a law (The Gun Control Act of 1968) which had, at the time of the 2008 ruling, only been law for a meager 40 years – nothing compared to the 177 years the Second Amendment had been legally in effect before it.
So while a ruling in Mr. Rahimi’s favor might have strengthened Biden’s own case or that of someone convicted of a non-violent felony, this ruling against him does not – but, at least, it doesn’t really hinder, either.
A Loss for the Second Amendment Is a Win for Gun Grabbers
The Court’s ruling likely will, however, lead future courts to support certain gun control measures like extreme risk protection orders (often called red-flag laws) and growing the list of prohibited persons at the federal level to include people adjudicated as domestic abusers. Felony charges at least require rigorous criminal proceedings and a unanimous ruling by a jury of the defendant's peers for conviction. Extreme risk protection orders and restraining orders - like the one imposed against Mr. Rahimi - can be doled out by civil courts, devoid of the safeguards of criminal procedures. The idea behind disarming dangerous people seems noble at first glance. However, it ignores a few simple truths.
False claims of abuse by disgruntled exes do occur. Angry neighbors – or, again, exes – could also report a person to the police as dangerous, thus starting the process of creating an extreme risk protection order that would result in the subject being disarmed by the armed officers who show up to confront them – and it’s not as if the standard policy is to call ahead and give notice. Then, of course, there’s the fact that the only felons, former drug users, and alleged domestic abusers who won’t arm themselves anyway are the ones who want to be law abiding citizens moving forward. Those who would use a gun for violent crime in the future couldn’t care less.
Whether wrongfully accused or even rightfully accused and convicted of a felony, someone who finds themselves in this ever-growing list loses the right to keep and bear arms. But what of their rights – or the rights of their families – should violence come to them?
