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Clarence Thomas's Gun Control Snare
So the Bruen decision came out more than a year ago, and it has scrambled how courts deal with gun control laws.
Step back first. The way courts typically evaluate laws that putatively infringe on a constitutional right was through an analysis called strict scrutiny. Basically, take any constitutional guarantee ("Congress shall make no law...abridging the freedom of speech...") and add an "...unless it has a really good reason!" exception. This isn't an exaggeration. Courts were allowed to give the government a free pass on constitutional infringements provided the state's efforts were "narrowly tailored" and "necessary" to achieve a "compelling state interest".
But what counts as a compelling reason? Who decides which laws are narrowly tailored? It's judges, all the way down. For something like freedom of speech, there's a robust enough appreciation that you can expect a reasonable amount of skepticism among the judicial corps against efforts by the government to muzzle expression. In practice, strict scrutiny generally functioned as decently high threshold, unlike its contrasting rational basis test which practically was a free pass for the government to do whatever.
But what about topics a little more heated, like guns? Judges have been squishier and far more willing to accept the government's justifications that a given legal restrictions was "necessary". Hell, some judges even weaseled their way into ditching strict scrutiny in favor of the more permissible intermediate scrutiny. Judge VanDyke of the 9th Circuit lampooned this doormat reflex in his 2022 McDougall dissent (cleaned up):
The cases VanDyke cited illustrate the problem well. The 9th Circuit has ruled it's ok to require people to demonstrate either "good cause" or "urgency or need" to the government before they're allowed to carry a gun outside their home. Set aside whatever negative sentiments you might have about guns, and instead imagine the reaction if similar restrictions were imposed on newspaper licenses. Imagine having to convince a cop that you have "good cause" to start a blog. Constitutional guarantees are worthless if they're predicated on a government agent agreeing that your reason for exercising them is good enough.
The practice of circuit judges shrugging off challenges to gun control laws with "I don't know man this seems totally reasonable to me" went on for several years, and I can only imagine it pissed off the pro-2A wing of the Supreme Court. Sure, Trump's appointments eventually meant they had the numbers on their side and so a very favorable 2A opinion was inevitable, but a stern rebuke of "We really mean it this time!" didn't seem like it was going to work in getting the circuit courts to stop fucking around.
So when they finally got their chance, SCOTUS tried a different approach. Instead of just triple-underlining and double-highlighting the words STRICT SCRUTINY, Clarence Thomas writes the majority opinion that created a brand new analysis wholly unique to the Second Amendment: gun control laws can only be constitutionally permissible if they're consistent with "historical tradition of firearm regulation." Any law being evaluated must therefore have a historical analogue, and the closer the analogue was to the year 1791 (when 2A was ratified), the better.
I was thrilled with Bruen's result, but puzzled by its reasoning because it seemed to just recreate the circumstances that led to the "fake strict scrutiny" problem. It turns out Bruen had way more of an effect than I anticipated. Clarence Thomas is a fascinating figure in many ways, in part because he's America's most powerful black conservative, who just happens to draw direct inspiration from the black nationalism Malcolm X espoused. I have no idea if this was intentional, but Thomas laid out a beautiful carpet of caltrops that the government couldn't help but step on over and over again.
What followed Bruen was a litigation maelstrom. Government attorneys across the land scoured dusty historical tomes, in search of whatever they could get their hands on and use as justification. The first problem they ran into was there just weren't that many laws on the books around the time of the Founding, let alone laws that specifically governed firearms. Generally speaking, Americans were free to strut about town with their muskets in tow, no questions asked. The lawyers had to cast a ever-wider net to snag anything relevant, desperately expanding their search way beyond 1791 to include things like an English prohibition on "launcegays" from 1383. When they did find timely laws, they ran into a second and far more pressing problem: the laws regulating firearm possession were...awkward. Really awkward.
Judge Benitez overseeing the ongoing Duncan case ordered the state lawyers to compile a list of every single relevant law they could find, and the 56-page spreadsheet they created is incredible. It's not surprising to find governments actively disarming disfavored groups, it's another to see the arbitrariness outlined so starkly. Modern gun control critics have regularly pointed out how skewed enforcement can be, particularly along racial lines. And because Bruen requires historical analogues, lawyers defending gun control restrictions had no choice but to immerse themselves unhappily within its sordid origin story.
Numerous early laws specifically prohibited only "negroes, mulattos, or Indians" from carrying firearms (1792 Virginia law, 1791 Delaware law, 1798 Kentucky law, etc.), or specifically targeted only slaves (1804 Indiana law, 1804 Mississippi law, 1818 Missouri law, etc.). California had it out particularly for those with "Spanish and Indian blood" (aka what the law called 'Greasers') and prohibited them from possessing firearms in 1855. These are all laws favorably cited in courts today.
When tasked to defend §922(g)(3), the law that prohibits anyone who is an "unlawful user" of a controlled substance from owning a gun, government lawyers tried their best with what little they had. The closest analogues they could find were colonial laws that prohibited actively drunk people, "dangerous lunatics", or what they termed "unvirtuous citizens" from possessing a gun. And you know that's BASICALLY the same thing as preventing the occasional marijuana smoker today from ever having a gun. The judge wasn't convinced.
After languishing in a stalemate for decades, the legal precedent around gun laws has dramatically changed in very quick order thanks to Bruen. Prohibitions on drug users were struck down, a (limited) prohibition for non-violent felons was struck down, and so were prohibitions on individuals subject to domestic-violence restraining orders (for now...). Courts are normally slow to move, but these developments have happened at blazing speed, and it's only the beginning as there's still plenty of ongoing litigation.
None of this means that gun control advocates have given up, far from it! @gattsuru has extensively catalogued numerous ways anti-gun politicians and judges putting in absolutely heroic efforts to gum up the machinery, however they can. Judge VanDyke publicly accused his colleagues on the 9th Circuit of some robe & dagger procedural shenanigans putting the thumb on the scale in the Duncan case. Meanwhile, legislation of dubious constitutionality gets passed faster than it can be struck down and the NYPD is somehow approving fewer gun permits than before (maybe because their approval stamp fell behind a desk, or something?). The efforts Gattsuru highlighted are definitely a hurdle but we'll see if they're the beginning of a new stalemate, or just desperate cadaveric spasms. For now, I'm going to continue enjoying the spectacle of government lawyers arguing with a straight face to a judge that pot smokers are the historical equivalent of dangerous lunatics.
In Washington we had a judge rule that magazines aren’t firearms and so aren’t subject to Bruen.
Every time I see this kind of behavior I wonder if the judges reflect on the intended purpose of the second amendment and proceed to ignore the constitution anyway. A refreshing of the tree of liberty would surely swamp any possible deaths averted from magazine restrictions and assault weapons bans.
But does overturning the ban on domestic abusers getting guns really do a lot to aid that original purpose?
What percentage of the revolutionary militia were we expecting to be habitual wife beaters, exactly? I think we'll be ok without them.
That's my position, if someone proposed a bill that would actually decrease gun ownership a significant amount - say, 10% - then I'd be onboard with saying 'this is a threat to the ability of 2A to protect us against tyranny'.
But AFAICT, most of the skirmishes are over very limited laws that make it harder for criminals to get guns, or impose inconveniences that annoy gun owners but don't stop them from being gun owners.
Unless I'm misremembering, the actual ruling was regarding domestic violence restraining orders. (PDF WARNING). Which is to say, people who have not been tried for or convicted of the crime of domestic abuse/battery, but rather where there's someone who can convince a judge that they are in danger of violence from this person, and thus an injunction to keep that person away is a necessary remedy.
So a person against whom such an injunction is granted is NOT a convicted criminal just because the injunction was granted.
I think this is an important distinction, as it also brings up the need for due process protections. The standards for proving a domestic violence injunction are much lower than for obtaining a criminal conviction, and they're usually considered a civil matter (i.e. it is the person acting on their own behalf, not the state acting on behalf of society, no prosecutor is even involved). An individual can request that a given person be forced to stay away from them if they're a threat, but it makes much less sense for a person to demand that that someone else must sacrifice additional rights in their entirety.
So a law which removes ALL of a person's firearm rights on the sayso of a single person is a pretty serious restriction to impose on somebody who has not been arrested, much less convicted of a crime.
In terms of protecting people's rights from infringement without some proven criminal conduct I think it does help that original purpose, yes.
Indeed, an injunction that takes away a person's gun rights doesn't provide much extra protection to the alleged victim. If that person wants to ignore that restriction and hurt someone, doubtful that piece of paper will stop them. So I don't think victims' safety is hampered much by the firearm ban.
If the state can convict the person of domestic violence crimes, then we're in the world of violent criminals, and all kinds of punishments, including prison and removal of gun rights are on the table.
While yes Rahimi is about a conviction under 922(g)(8) for possession while under a DVRO, it's complicated by Rahimi being an exceptionally unsympathetic individual which makes it politically very easy to paint his defense as a bad thing. The firearms that he is being charged with possessing in violation of the order were discovered while his premises were searched under warrant for other crimes.
The DVRO was issued Feb 2020 for context.
Why is this an argument for disarming him through a DRVO, rather than an argument for jailing him pending inescapable felony conviction and a decade or more in prison?
You have your timeline confused. He was already under the DVRO before those other crimes occurred. While doing the needful in investigating those other crimes they found evidence for an easy conviction of possession of a firearm while under a court restraining order. His defense attorney is using Bruen to dispute that charge specifically. The case before SCOTUS doesn't actually touch those other charges at all.
To clarify the actual argument is whether or not the federal crime of possessing/acquiring a firearm (that interacts with interstate commerce but that's basically a fig leaf) while under a court issued restraining order is constitutional. This gets abbreviated to whether or not a restraining order with its lower standards of proof and potential one-sided issuance is sufficient and constitutional to deny someone their constitutionally guaranteed right to keep and bear arms. Shorter: restraining orders disarming gun owners constitutional yea/nay?
And his record was clean before the DVRO?
I appreciate the correction, and I guess the argument is that under the proposed system, they could have disarmed him when the DVRO went through? But if his record was not clean prior, that just pushes the question back: the sort of person who fires warning shots over a credit card declined at Whataburger is the sort of person who should not be on the streets at all, and this is probably knowable before he shoots up a Whataburger. Disarming him (How? By who? What if he arms himself again?) but leaving him free is an entirely insufficient response.
As far the record exists in the case yes. Notionally he should have been disarmed when the DVRO was issued. The practical application of that would require the court/police to be aware of existing firearms (the person asking for the order might be aware, the person accused is not exactly incentivized to bring up their ownership) and then proactively disarm (expensive, dangerous) rather than simply ordering it be done. Keeping in mind that the DVRO was under state court and the possession is a federal offence. In some jurisdictions compliance can also be done by storing firearms at a club/FFL rather than having to sell off/surrender them to the police so even verifying compliance with the order has friction.
As for acquiring, the only thing stopping a 4473 from going through after the order is in effect is if the court that issued the order is tied into the state background check system or the national one to catch someone lying on question 21.i or the person under the restraining order answering that question truthfully. (All of question 21 on that form is basically an IQ check or cya documentation used to prosecute if you lie on it and then publicly admit to doing things that conflict with your answers on that form as in the recent case of a rather famous failson.) And of course it's entirely possible to acquire a firearm without a 4473 and in those circumstances the ability to verify that someone is not restricted is rather limited.
To get around that second problem some states have made it illegal to transfer a firearm without a 4473. And the way they enforce that has been... catching someone after the fact with incontrovertible proof they violated that law. That proof being rather difficult because most of those universal background check states still have various exemptions for gifts/inheritance/loans to avoid awkward things like having to stop at an FFL to let your friend "possess" your firearm during a day at the range. Yesterday's reasonable exception is today's loophole.
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