Distinguish (g)(8) Flashcards
Rahimi seemed to imply that it’s reasoning would only strike down these civil restraining orders. Didn’t Rahimi cite the vacated Range opinion for the proposition that “criminals” fall outside of the Second Amendment’s scope; emphasize that the “presumptively lawful” list was nonexhaustive; and make very clear that the restraining order was entered in a mere civil proceeding?
Clearly, the Rahimi court to pains to distinguish some of the unique features of (g)(8) that informed their decision. And this court can take those features into account. But there are also similarities between the two, as the Fifth Circuit acknowledged in FN ___, where it collected authorities finding no historical tradition supporting (g)(9). in the question here is, do the distinctions between (g)(8) and (g)(9) allow the government to draw the requisite historical comparison? And if you drill down on the government’s particular comparisons, the answer is no.
Rahimi notes that “the distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history, and the Founders were plainly attuned to preservation of these protections.” And Judge Ho forcefully argues that this distinction should make all the difference. How do you respond?
Your honor can certainly take that into account, but that distinction only makes a difference if it helps the government draw the comparison to a historical tradition of regulation. And here, the government’s comparators really don’t turn on the civil/criminal distinction.
• I’ll also note that the criminal offenses covered by 922(g)(9) are misdemeanors. As Justice Thomas points out in his Voisine dissent, the defendant will not necessarily have a right to a jury trial, the offense might be considered an infraction, it might be punishable only by a fine. And yet, the deprivation under 922(g)(9) is far greater than under 922(g)(8). The person suffers a complete deprivation of their right to bear arms for life. So this, too, should be accounted for when thinking about the government’s comparisons.
Rahimi notes that one can be disarmed under 922(g)(8) without ever having harmed anyone and without even being adjudicated a threat to anyone. Isn’t that an important distinction?
• Your honor can certainly take that into account. But your honor should also consider the breadth of conduct captured under 922(g)(9). The statute covers convictions for conduct that is reckless, not just intentional; for offensive touching, not just harmful touching; and it provides for lifetime disarmament, regardless of whether the individual poses an ongoing threat. So the statute is so broad that, as Justice Thomas points out in his Voisine dissent, a parent who recklessly injures her child by texting and driving can be disarmed for life.
Doesn’t the civil/criminal distinction help the government draw a comparison to historical “going armed” laws?
• That was one distinction that the Rahimi court drew, but there are several others that apply equally to 922(g)(9).
• First, these laws were targeted to “violent or riotous behavior” with a firearm that threatens “society generally.” In contrast, 922(g)(9) covers reckless conduct, as well as intentional conduct; offensive touching, as well as harmful touching; it includes some laws that the legislature deemed minor enough to be classified as infractions, only punishable by a fine. There’s certainly no requirement that the individual has ever misused a firearm. So, to take Justice Thomas’s example from Voisine, a parent who injures their child by recklessly texting and driving could fall within this law.
• Second, there was no historical tradition of disarming people who committed one of these “going armed” offenses. Only a couple of transitory historical laws even required forfeiture of the firearm involved in the offense, and none prohibited offenders from buying new arms going forward. In contrast, 922(g)(9) provides for lifetime disarmament.
Judge Ho points out that people convicted of crimes can and should be deprived of all sort of rights that wouldn’t be appropriate for people not convicted of crimes. Why should this be any different? Aren’t you singling out the Second Amendment for special treatment.
• A couple of responses to that, your honor. First of all, conviction for a crime does not automatically deprive someone of their constitutional rights, particularly when it comes to individual rights. Judges still have to apply the appropriate constitutional test to determine the scope of someone’s rights after conviction. To take a simple example, we wouldn’t say that just because someone’s convicted of a crime, they have no First or Fourth Amendment rights.
• Second, as Justice Thomas points out in Voisine, the rights deprivation here is extreme compared to other disabilities resulting from misdemeanor convictions. A person could completely lose their right to bear arms forever, just for sustaining a single misdemeanor conviction, even if that conviction were a fine-only offense. And at oral argument, the SG in that case was asked, “Can you identify any other right that you would lose completely and for life when you commit a fine-only offense?” And the SG said no. So 922(g)(9) is extreme in comparison to other rights.
