“When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.”
That, in a nutshell, is the holding in United States v. Rahimi, the SCOTUS decision handed down this morning.
I’m a hardliner regarding “pre-crime,” and I am unalterably opposed to measures removing citizens’ rights without a finding of guilt in a criminal prosecution. However, Justice Roberts’ majority opinion is well-reasoned and carefully limited, with “temporary” being the key word. I also think it is crafted in such a way that so-called “red flag” laws are not going to be able to use this case as precedent to survive constitutional challenges. I have not yet read all of the concurrences, of which there are many.
What is perhaps more significant than the decision itself was the vote: 8-1 in favor of the law in question. (Anyone who can’t guess who the lone dissenter was, as well as the basis for his dissent, has not been paying attention.) This, along with the less consequential decisions handed down yesterday, powerfully counters the false Democratic narrative that the current Supreme Court is an ideologically biased body unalterably allied with the far right, as three heroic and caring progressive women futilely battle for the soul of the nation.
This unethical framing has been concocted to justify an assault on the legitimacy on the Court and its decisions, all as part of the “Stop Trump or it will be the end of democracy!” campaign. In reality, the characterization is garbage, and has always been garbage. The lie is still effective because the percentage of the public that reads SCOTUS decisions, never mind understands them, can reliably be estimated to be in single digits.
None of yesterday’s decisions split along the supposedly frozen-in-granite 6-3 blocs, and today’s decision infuriating Second Amendment absolutists even had the hated Justice Alito voting with the majority.
Of course, I suppose he should be expected to favor red flag laws….
Ethics Alarms 
“also think it is crafted in such a way that so-called “red flag” laws are not going to be able to use this case as precedent to survive constitutional challenges.”
Much relies on this. And enough citizens will be dragged through the courts as armies of progressive litigators do their best to get as free an application of their desires as possible that I’m not sure this won’t amount to a long period of time where the gun grabbers will get their way enough to be onerous to citizens and their civil rights.
Jack: “(Anyone who can’t guess who the lone dissenter was, as well as the basis for his dissent, has not been paying attention.) ”
Also Jack: “I’m a hardliner regarding “pre-crime,” and I am unalterably opposed to measures removing citizens’ rights without a finding of guilt in a criminal prosecution.”
my guess is that Sotomayor is the lone dissenter. However, your own position suggests a hard-liner could be the dissenter. That could be Thomas.
I will go with Sotomayor.
-Jut
Sotomayor could be a dissenter in any case, since she is, after all, an idiot. But no, it was Thomas, and he argued that there is no historical justification for the Court’s ruling, loyal originalist he.
I particularly enjoyed Justice Kavanaugh’s concurring opinion regarding how the Court should approach interpretation and history. In many ways, it read like my Con Law professor, Charles Alan Wright, from whom I also took a Supreme Court seminar.
I’ve not yet read the decision, only a news article that waxed poetic on Bruien for paragraph after paragraph before finally mentioning Rahimi where I then checked Wikipedia.
Mr. Rahimi, model citizen he, violated dozens of other laws and committed multiple other violations and assaults during his protection order, those other convictions keeping him incarcerated no matter the court’s decision.
I can’t help think that Rahimi dragged the court down the cognitive dissonance scale. Better enforcement of the actual antisocial violent conduct makes enforcement of mere possession irrelevant.
Yes, I do personally fall on the absolutist side. As a lower court argued, a retaliatory protection order (a valid legal maneuver especially where abuse is mutual) has the very high likelihood of making the state complicit in the homicide of the compliant domestic partner.
The thing is, that false narrative has been “powerfully countered” over and over again. But the mainstream media can simply make all these refutations fade into the background, while at the same time amplifying specious arguments about flags.
Great post. Regarding your pre-crime comment, if someone walks into a gun store and wants to buy a gun and tells the clerk they are going to use the gun to kill their wife, according to you, the government should not be able to prevent this person from buying a gun.
No. My position would relate to someone who once walked into a gun store and said they wanted a gun to shoot their wife being placed on a “Never can buy a gun list” even though in fact the guy didn’t shoot his wife. What you are describing would be a law stating that gun store owners have an obligation to not sell a gun to someone behaving in an unstable or threatening manner. Such a law would be nearly impossible to enforce fairly, but it wouldn’t be “pre-crime.”
Please tell me you see the distinction. I’m tired.
Sorry, what is your position then regarding someone who once walked into a gun store and said they wanted a gun to shoot their wife being placed on a “Never can buy a gun list” even though in fact the guy didn’t shoot his wife?
Would you be okay with the government not allowing them to buy a gun?
Andy
Isn’t the answer obvious from what I’ve written already? I said I am an absolutist regarding pre-crime. Telling someone directly that you are going to kill them isn’t a crime, and telling a third party that is even more of a non-crime. Police are alerted frequently by wives who report dire threats of harm from their husbands, and there isn’t a thing police can do about it until the husband takes an action that is a genuine threat sufficient to justify a court order, if not an arrest.
My apologies, I’m just trying to get a yes or no here.
Would you be okay with the government not allowing them to buy a gun in my scenario?
Yes or no?
Andy
You got it. Re-read the first word of Jack’s first response.
I’ll counter: the government DID deny my grandfather the right to purchase his first gun at age seventy because he took a joyride as a minor and totaled his uncle’s car in a ditch.
Never served a day in jail, nothing worse than traffic tickets since. The now elderly man found out he was persona non grata. He wanted a firearm because he no longer felt safe after his house was burgled while he was inside.
This isn’t Chicago. It’s a mid-west city under half a million in population.
Telling someone you are going to kill them IS a crime, isn’t it? That would be a threat, and making threats is illegal, I think?
Here’s relevant VA statute: § 18.2-60. Threats of death or bodily injury to a person or member of his family; threats of death or bodily injury to persons on school property; threats of death or bodily injury to health care providers; penalty.
A. 1. Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony. However, any person who violates this subsection with the intent to commit an act of terrorism as defined in § 18.2-46.4is guilty of a Class 5 felony
Interesting thank you. This was the brunt of my clarifying question to our host. It seems he’s arguing that we can’t disarm a kid who tells everyone he’s going to shoot up a school one day. I suppose we can’t lock people up who appear they may harm themselves either.
Well, he’s right to be concerned, it is a bit of a slippery slope, this business of deciding who is dangerous. Most totalitarian regimes use some such charges to get people out of society or dead. But the modern mechanism, with appropriate legal safeguards, is much better than Clarence Thomas’s attempt to revive Surety Laws for the 21 century. The fact is, an aggrieved spouse or partner is the most likely killer of a woman, and there is no better killing method than a gun. I believe the 2nd amendment, with its well trained militia introduction, is capacious enough to allow laws like this. And 8 justices agree….
Could such people also be temporarily restrained from engaging in any form of intimate contact or relationship?
In comments on other bloigs, I asked why those convicted of misdemeanor domestic violence can not be prohibited for life from engaging in any form of intimate contact or relationship.
I see.
Has anyone ever responded to that with “Wow, good question?”
It’s the “reasonable apprehension” part that is the sicking point along with “threat,” a term of art, running into the SCOTUS “true threat” opinions. The U.S. Supreme Court defined true threats in Virginia v. Black (2003) as “statements where the speaker means to communicate a serious expression of an intent” to do harm, so it isn’t the belief of the object of the threat, but the intent of the speaker, which is a matter to be determined by a jury. An “I’m going to kill you!” spoken in an argument or in anger just isn’t a crime without that intent. (That’s a big plot point in “Twelve Angry Men”). The words, absent more—past violence, demonstrated ability to carry out the threat—don’t do it.
If someone says “I’m going to kill my wife” after he sees she didn’t load the dishwasher properly, that probably isn’t a true threat. If someone says “I’m going to kill my wife” while buying a gun, it probably is. That doesn’t seem particularly legally dicey to me.
What if he’s joking? Why would he say that if he wasn’t joking?
What if he’s joking? Why would he say that if he’s NOT joking?
Apply that same logic to laws about presidential threats, and you would invalidate them too. Only an idiot would talk about killing the president, and how do we know they’re not joking? But in fact, abusive partners, even more than presidential assassins, say threatening stuff, not at all joking, ALL THE TIME. It’s part of the way they build a fear cage in which the abused partner is locked.
This case shows the paucity of original intent in certain situations. The Founders had nothing like our modern understanding of domestic abuse. It wasn’t even a crime. Indeed, marital rape did not become a crime in all 50 states until the 1970s. Let that sink in. A man had the right to RAPE his wife, any time he wanted sex, legally, in the time when the Constitution was written. The marriage contract allowed it, and she had no choice but to submit. So why would they have anything like a law to deny guns to domestic abusers??? So under Thomas’ ruling, all we have to go by are surety laws, an archaic law that would be no barrier to an abusive partner killing the victim. Remember, many times, the killer does not seek to survive, so surety laws and the general criminal code is of little use. Taking their guns away has some hope of success. It won’t always work, but it is far better than doing nothing (or SURETY laws FFS).
Ask any cop–when a woman is found shot, you go to partners, spouses, and exes. Always. Sometimes it was someone else. But if you are playing the odds, those were the killers. And yes, that’s a small percentage of the men who go through turmoil and breakup will do that. And YES, it will be abused, false accusations will be made. Divorces also feature false charges of child molestation. It happened to a friend of mine in his divorce. It was AWFUL. Sometimes custody can be lost for months or years until you can clear your name. BUT the solution is NOT–get rid of the remedies that prevent continuing molestation. We accept that some innocent parents are going to lose custody temporarily until we can figure out if Mia Farrow is telling the truth. Surely murder is at least as important as molestation. And I’d much rather lose guns (that I don’t have, but whatever–any material object) than lose custody.
As part of my prosecutor training, I spent time on the complaint desk phone, for when citizens call up and ask for police help. A lot of them were based on verbal threats, mean looks, hostile behavior, people convinced X was going to harm them. In the vast majority of cases there was nothing the police could or would do unless a law was broken. I was told there was a “club” of assistant DAs who learned that someone who called them was later killed by the subject of the call. It frequently sent the unlucky prosecutor into therapy.
The conviction for a crime is the hard red line for me. It’s tough, but one shouldn’t lose rights because of equivocal, legal conduct, and I don’t see the founders’ archaic views of male-female relationships as especially germane one way or the other. If a spouse is convinced that she is in deathly peril from a husband but nothing he had done crosses the line, should the law bar HER from getting a gun? Isn’t she a threat to shoot him in her state of panic and perhaps excessive dread? I could make a case for that. The permutations of possibilities are almost infinite.
Good points. The reference to the Founders is from Thomas’ dissent and the Thomas majority opinion on guns he cites. He ruled that no gun law could stand unless it had a historical precedent in our laws and traditions at the time the 2nd amendment was passed. Thus, laws about temporarily giving up your guns because of domestic abuse cannot stand (it’s all in his dissent). He instead puts forward surety laws, which is, frankly, dumb in the context of domestic violence.
Thomas is a broken record, entirely predictable, and so obsessed with “originalism” that it borders on pathological. I confess, I won’t read his dissents (or concurrences) any more: EA declared that he was a disgrace, that his secret patronage from Harlan Crow was disqualifying, and that he needed to quit the Court if he was to retain any shred of respectability. Shortly after you entered the fray here with such elan (“Let the roasting begin!”) I “doubled down” in this post.
At some point public figures, elected officials and “experts” can forfeit the privilege of being taken seriously or trusted. Thomas passed that point long ago. To hell with him.
You also said Rosemary Lehmberg should resign.
Michael McCrum and a grand jury disagreed.
If someone as an adult joke about planning to blow up a plane while they’re at the airport and someone hears them, they are not going to get on that plane, and I wouldn’t have much of a problem with that person never being allowed on a plane again. And safely caring for a gun typically requires a great deal more responsibility than being a passenger.
Not a good comp. The federal law about not “joking” about bombs on planes is based on legitimate special circumstances, including causing fear and panic among passengers, disrupting the flight, etc, beyond the actual threat of a suicide bombing. I wouldn’t mind a law making such a statement a crime, but that would still require intent and a trail beyond a reasonable doubt. Speech is another right that requires responsibility: would you be comfortable with the government just deciding, based on the kinds of stupid and reckless things we hear from from pundits, celebrities (The View????) and elected officials every day, being able to ban their public speech? Of course, this is what has been done to Trump is several settings. Be careful what you wish for.
I don’t understand your question. The type of speech we’re talking about is already banned. The government can and does arrest and convict people for threats, even false threats, even when the accused uses “I was just joking” as a defense.
https://www.fbi.gov/news/stories/hoax-threats-awareness-100518
Putting the law aside, can we agree that anyone stupid enough to say “I’m going to kill my wife” while buying a gun, even as a joke, is not responsible enough to be trusted with a gun? At this point I’m not asking whether he should be banned from owning one, but whether you personally think they can be trusted to handle a gun responsibly.
Can you give an example of the government banning some of Trump’s speech in any setting? I am not familiar with any such case. Twitter did ban him, but Twitter is not the government; in fact Trump was the head of the government at that time.
1. “I was just joking” has to be a credible defense. It’s not a get out of jail free card.
2. !!! You’ve seen judges impose gag orders on Trump, including in Manhattan while the main witness against him was allowed to go on the radio and social media attacking Trump. The fact that Twitter banned Trump while we know the Biden administration was pushing the platform to censor critics is at very least ominous.
“The fact that Twitter banned Trump while we know the Biden administration was pushing the platform to censor critics is at very least ominous”
There was no “Biden administration” at the time Trump was banned. It was still the Trump administration, which was also pushing Twitter to censor critics—a fact Matt Taibbi revealed in his “Twitter files” but relegated to like, one tweet out of 74, despite the fact that Trump was actually in power at the relevant time and Biden was not. That completely deflates the idea that anyone worked up over the Twitter files is actually concerned with government censorship. Taibbi and his followers were fine with the Trump administration pushing Twitter to ban critics, but accused the Biden *campaign* of improper government censorship, because they have no principles other than “Democrats bad.”
1. The main witness against him wasn’t doing that. What? Cohen certainly was! Look it up.
2. Trump had every right to criticize the judge, the prosecution, anyone he chooses to, outside the courtroom. Gag orders are typically on everyone involved in a trial, not just the defendant. This was so unusual there’s no jurisprudence on it. There should be. The ACLU, hardly a friend of Trump or conservatives, argued that the gag orders were indeed unconstitutional.
3. My sloppiness: the Twitter ban was after the Biden administration was revving up, and perfectly capable of applying pressure when the power to regulate, etc, was imminent. Big Tech and social media are have been the fourth prong of the Axis.
I can’t find a story about Cohen attacking witnesses, the judge, or the jury, which is what I said he did not do. He attacked Trump (not a witness), but not the entire court system.
My comments about the gag orders were about the Manhattan case, since that was the one you referenced. The ACLU has not said anything about those being unconstitutional as far as I can find, and an appeals court refused to hear Trump’s appeal to have those gag orders overturned. The ACLU did say the gag orders issued by Judge Chutkin in the federal election crimes case were unconstitutional, but they may be on more solid ground there, especially as that trial has not even started yet and those gag orders were broader and more vague. But I think it is hard to argue that Trump has been unfairly treated when he repeatedly broke those gag orders and spent no time in jail–a privilege that would likely not be afforded to you or me.
And sure, you can say that Twitter was worried about future regulation by Democrats if they did not ban Trump on January 6th–but that still ignores that the Trump administration was making similar calls for censoring critics while in power, a fact even Taibbi admitted to (while also massively burying the lede in order to slant the narrative). Absent explicit threats, neither is a First Amendment violation. Given how much Twitter’s own userbase was demanding Trump be removed from the platform even before January 6th, it’s more likely Twitter caved to public pressure rather than governmental pressure.
One must have reasonable apprehension that the threat is real. Mere utterance of I’ll kill you does not necessarily rise to that level. Parents have been saying that in anger since the world began. Wives have said it in anger toward their husbands. It also occurs fairly regularly between antagonists during heats of passion ( I don’t mean passion in the biblical sense).
In this particular issue the court is allowing a temporary disarmament after a court finds that a reasonable person would believe the potential target is in danger. The idea that a permanent bar of ownership or possession of a firearm without a conviction of a felony is not what the court decided.
Rahimi’s prior bad conduct may have played a pivotal role in how this case was ultimately decided.
The particular scenario mentioned was someone saying they were going to kill someone while buying a gun. In what world does that not demonstrate intent?
Three things I will note.
The idea that the government banning someone from having an intimate relationship is less intrusive than banning someone from owning a gun is batshit insane. If you wanted to hand the left evidence that gun rights advocacy has become closer to a gun-worshipping cult, congratulations.
Now now now—don’t cheat. Nothing in the decision in any way bans an intimate relationship. I know you’re not a lawyer, but you have to do better than that. Is sentencing a criminal to prison “banning an intimate relationship”?
Do better.
I wasn’t talking about the decision. That was meant to be a reply to Michael Ejercito’s comment suggesting the state ban perpetrators of domestic violence from intimate contact and relationships rather than banning them from owning guns. He has left multiple comments on this theme.
That was meant to be a reply to Michael Ejercito’s comment suggesting the state ban perpetrators of domestic violence from intimate contact and relationships rather than banning them from owning guns.
Why not ban both?
Because that’s insane.
The idea is not insane.
Those convicted of domestic violence have been shown to be unworthy of intimate contact or relationship.
It is perfectly reasonable for a state to temporarily prohibit those, subject to a domestic violence restraining order, from having any form of intimate contact or relationship. After all, the order was issued because they pose a credible threat.