Law-abiding Flashcards
Didn’t the Supreme Court itself limit it’s holding in Bruen to the law-abiding?
I agree with your honor that the Supreme Court has not yet ruled on the question of how the government can regulate the non-law abiding. But the Court did tell us how lower courts must answer that question: using text and history.
Now the government wants to say that the Supreme Court has answered that question, and it’s told us that that power is unlimited. But….
Rahimi holds that the “law-abiding” language does limit the Second Amendment in that it refers to the “presumptively lawful regulations” on felons and the mentally ill, etc. Do you agree?
Yes, with a caveat. Bruen’s law-abiding references are intended to leave open the question of how the government can regulate groups like felons and the mentally ill. I don’t believe that the law-abiding references affirmatively hold that those groups can be categorically and permanently disarmed with no textual or historical analysis. That would be at odds with Bruen’s express holding that only text and history can validate a gun regulation.
• In any case, the Fifth Circuit and I agree that these “law-abiding” references do not exclude someone like Mr. Yates from the Second Amendment’s scope. Domestic violence misdemeanants do not appear in this presumptively lawful list. And sustaining a misdemeanor conviction does not exclude a person from our “national community,” meaning that under Heller’s textual analysis, Mr. Yates retains his Second Amendment rights.
Doesn’t Bruen make clear that the Second Amendment applies only to law-abiding citizens?
No, your honor. That language limits the Court’s holding to the law-abiding, while leaving open the question how the government may regulate the non-law-abiding. [Skokein and Sixth Circuit quotes]
How should we evaluate Mr. Yates’s conduct? You say he just committed a domestic violence misdemeanor, but he was originally charged with rape and committing domestic violence in the presence of children.
• It’s one of the bedrock principles of our justice system that defendants cannot be stripped of constitutional rights based on mere allegation. Mr. Yates has to be presumed innocent of those allegations. They’ve never been proven beyond a reasonable doubt, and he has never gotten a chance to defend against them, either in the original case or in his 922(g)(9) case. And that’s critical. All the jury had to find to convict Mr. Yates was that he had this misdemeanor DV conviction and that he had a gun. And that is not enough under our history and tradition.
• Even the government hasn’t tried to contend in this case that mere allegation can strip Mr. Yates of his rights.
Is Mr. Yates “law abiding”?
• It’s impossible to answer that because the government’s proposed “law-abiding” limitation is so vague and unprincipled. It’s unprincipled because it doesn’t have any basis in the text or history of the Second Amendment. It’s derived entirely by implication from Bruen’s use of that term. And it’s vague because there’s no way to know what conduct it covers. What about speeding tickets? What about people who smoke state-legal marijuana in California? Because there’s no principled basis for this limitation, there’s no way to know who’s in and who’s out.
Where does the “law-abiding” language come from?
As the amicus brief shows, the “law-abiding” language actually originates in Heller. “Whatever else the Second Amendment leaves to future evaluation, it surely” elevates above all else the right of law-abiding citizens to keep guns in the home. That wording makes crystal clear that this “law-abiding” language is meant to say that the Second Amendment protects the law-abiding at the very least, while leaving open the question how it applies to others.
So, we’re supposed to believe that the 14-odd uses of “law-abiding” was just a coincidence?
• No, your honor, they served an important function, which was to make clear that the Supreme Court has not yet resolved the question of how the government can regulate the non-law-abiding. That question was not presented in either Heller or Bruen. But as the Seventh Circuit “law-abiding” references do not “resolv[e] questions” about how the government may regulate the non-law-abiding. United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010). Rather, they “t[ell] us that the matters have been left open.” Id. They make abundantly clear that courts should not take it as a foregone conclusion that the non-law-abiding have the same rights, but should evaluate the question using the tools Bruen gives us.
There’s a contradiction in your reasoning. You say that Heller essentially holds that the whole national community comes within the Second Amendment’s scope, yet you also say that Heller and Bruen did not decide who can have a gun.
• I agree that that’s our position, but I’ll try to explain why it’s not contradictory. In Heller, the Supreme Court modeled the methodology of textual analysis courts should do to determine who falls within the scope of the people, and that textual analysis is binding. But Heller did not decide what that methodology meant for any particular group. That said, sometimes that methodology will yield a clear answer, as it does in this case. But other times, it will be harder to apply. For example, courts have struggled with how it applies to undocumented people. So, the government is free to explain why that mode of textual analysis excludes my clients. But the government’s hasn’t tried to do that.
Didn’t the court essentially hold that shall-issue regimes were constitutional because they excluded only the non-law-abiding? Doesn’t that imply that states can prohibit the non-law-abiding from public carry?
• No, your honor. That language, like other law-abiding language, just limits the opinion to the question before the court. And we see that in the particular phrasing the court used in the footnote. The Court did not say, “Shall-issue regimes are constitutional.” Rather, it said that the Bruen opinion did not “suggest the unconstitutionality” of the shall-issue regimes. So, it uses limiting language, not language that would indicate an affirmative holding.
Doesn’t Vongxay adopt law-abiding?
