Biden Administration Brief on Rahimi Case about Due Process and Restraining Orders

Second Amendment Courts Judges Strict Scrutiny
Biden Administration Brief on Rahimi Case about Due Process and Restraining Orders

On August 14, 2023, the Biden administration submitted its brief to the Supreme Court in the case of USA v. Rahimi. In essence, the brief argues the government of the United States of America has the authority to remove fundamental, enumerated constitutional rights, particularly the right to keep and bear arms, with civil restraining orders because the Second Amendment only applies to “law-abiding, responsible citizens.” From the brief by the Biden administration:

In particular, this Court’s precedents have recognized that Congress may disarm individuals who are not “law-abiding, responsible citizens.” Heller, 554 U.S. at 635.

The phrase “law-abiding, responsible citizens” is dicta. It was not part of the findings in the cases mentioned. The Biden administration jumps to this conclusion:

Many aspects of Second Amendment doctrine rest on the premise that the Amendment protects only law-abiding, responsible citizens.

It has always been understood if a person performs criminal acts of sufficient severity, their rights can be restricted by being arrested and incarcerated. This is the argument that Judge Ho makes in the Rahimi case, when under appeal at the Fifth Circuit, in a concurring opinion:

Arrest and incarceration naturally entail the loss of a wide range of liberties—including the loss of access to weapons. See, e.g., Chimel v. California, 395 U.S. 752, 762–63 (1969) (“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.”); State v. Buzzard, 4 Ark. 18, 21 (1842) (Ringo, C.J.) (“Persons accused of crime, upon their arrest, have constantly been divested of their arms, without the legality of the act having ever been questioned.”).

Judge Ho then states people may be arrested and lose their rights for criminal acts. This is not the case with civil law:

18 U.S.C. § 922(g)(8) disarms individuals based on civil protective orders—not criminal proceedings. As the court today explains, there is no analogous historical tradition sufficient to support §922(g)(8) under Bruen.

Moreover, there are additional reasons why disarmament based on civil protective orders should give us pause. Scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger. That makes it difficult to justify § 922(g)(8) as a measure to disarm dangerous individuals. 

In order to overcome the obvious problems with using civil law to remove fundamental constitutional rights, the Biden administration cites a number of examples that are not particularly convincing. These include examples of groups of people who would not swear allegiance during war. The Biden administration lists several examples where people can be denied rights if they are not “peaceable.”  They claim “peaceable” is a synonym for “law-abiding, responsible citizens”.

The question is: does a judge have the authority to determine if a person is not “peaceable,” “law-abiding,” or “responsible” without finding a person actually guilty of a serious crime? May they do so when there is no serious adversarial presentation of evidence? The Biden administration brief claims this has been the case throughout history.

The Biden administration, starting on page 37, also cites recent cases that challenge the Gun Control Act of 1968 mass elimination of Second Amendment rights for groups of people, including users of marijuana and felons, apparently to convince one or more justices the Bruen decision is bad, because of the consequences of finding much federal gun law to be unconstitutional.

The submission cites numerous laws enacted after 1900. From the brief:

The tradition of disarming unfit persons continued into the 20th century. In the 1930s, Congress disqualified violent criminals, fugitives from justice, and per-sons under felony indictment. See Federal Firearms Act, ch. 850, § 2(d)-(f), 52 Stat. 1251. Control Act of 1968, Pub. L. No. 90-618, § 102, 82 Stat. 1220. In the 1980s, Congress disqualified noncitizens who are unlawfully present in the United States and persons who have been dishonorably discharged from the Armed Forces. See Firearms Owners’ Protection Act, Pub. L. No. 99-308,§ 102(5)(D),100 Stat. 452. And in the 1990s, Congress disarmed persons subject to domestic-violence protective orders, see Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110401(c),108 Stat. 2014,and domestic-violence misdemeanants, see Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, Div. A, Tit. I, Sec. 101(f) [tit. VI, § 658(b)(2)], 110 Stat. 3009-372.

Yes, those categories have been added very late in history, long after the time allowed to determine the intent of the Second Amendment.

The problem with the Rahimi case is Rahimi is not a sympathetic defendant. As much as we may dislike it, some justices are swayed, some of the time, on the specifics of a case that are not germane to the constitutional issues. Progressives have used this approach repeatedly to pass laws that otherwise could never have been passed. It is the principle of the emotional appeal. The famous quote by Rahm Emanuel seems to apply:

“You never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things that you think you could not do before.”

The Biden administration is working hard to make the case about domestic violence rather than about eliminating fundamental Constitutional rights without due process.

The brief contains a great deal of means-ends emotional arguments about domestic abusers. It is a variant of the “guns are bad, so more guns are worse” argument.

The Biden administration brief presents the argument as if there is no harm in taking someone’s fundamental constitutional rights, with minimal legal process. This is a longstanding argument in favor of governmental power, especially during the long ascendancy of progressive ideology.

The Biden administration brief does not mention laws that forbid selling guns to slaves or Indians or the laws that took guns from Catholics. They leave that dirty work to Amici briefs.

The Biden administration references highly biased papers that claim more guns are bad, particularly in domestic violence situations.  This is the basis for the emotional appeal. Those who support a strong Second Amendment should submit data to counter the claim that the Lautenberg amendment saves lives. According to FBI UCR data viewed by this correspondent, intimate partner homicides dropped significantly from 1976 to 1996. The Lautenberg amendment was implemented in 1997. From 1997 to 2019, intimate partner homicides remained essentially flat. The raw data indicate the Lautenberg amendment has been a failure at reducing intimate partner homicides.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten