Last August, I wrote an article on the Rahimi case, which The Supreme Court ruled on this past Friday. I argued they would do one of two things. They would either throw the issue out, because disarming someone under a domestic violence restraining order happens with no due process, or, they would side with the government. They sided with the government. In an eight-to-one decision, the court ruled that an individual may be disarmed if the court had deemed him to pose a credible threat to the safety of another individual. Many Second Amendment commentators are doing their best to put a positive spin on this decision. The court’s ruling, however, leaves a wide open door for broad interpretations that will inevitably create more legal challenges. These challenges may reach the court years from now when there is no longer a conservative majority. As if that even matters. Under a domestic violence restraining order, no proof is required that the person poses an actual threat. A person is denied his rights simply because there is an order against him. There is no hearing to determine if the individual is dangerous, it is just assumed. Due process wasn’t even discussed in the case because Rahimi, the defendant, had admitted guilt for the charges against him in previous trials. As far as the court was concerned, there was no reason to address due process concerns. There is also alarming language, penned by Chief Justice Roberts, that seems to undermine the court’s ruling in The NYSRPA V. Bruen case of 2022. This ruling argued that the government must prove that any proposed gun control laws align with the nation’s historic traditions and the plain text meaning of the Second Amendment, going back to the founding, and that lower courts could no longer use interest balancing tests when deciding gun rights cases. Many people were ecstatic when that ruling was released, taking the position that gun control was dead forever. The Rahimi decision left the door open for lower courts to keep infringing on the rights of American citizens because the ruling is very vague in its language and fails to address how a court deems an individual dangerous enough to be deprived of liberty.

Mark Smith, from the YouTube channel The Four Boxes Diner, argues that this case was a win for the Second Amendment for several reasons. He is a legal scholar, and his opinion shouldn’t be ignored. However, he leaves a lot of room for robust skepticism. Which, in my humble opinion, is an absolute necessity for the defense of liberty. His primary argument revolves around the very reason Merrick Garland pushed this case to the front of the docket. Garland wanted to force the court to undermine its Bruen method because Rahimi was, in fact, a dangerous individual who had admitted to using firearms to threaten others. The Biden admin hoped that the court would see the flaws in Bruen and resort back to the use of interest-balancing tests, and the tiers of scrutiny model of deciding Second Amendment cases. Under the tiers of scrutiny model, rational scrutiny is the approach taken in gun cases, which gives the state a so-called – legitimate interest- in balancing away rights in the name of the public interest. Mark argues that the DOJ failed in this strategy because the court stuck to its Bruen method by researching and citing laws dating back to our founding era, which allowed the government to disarm dangerous individuals. I will discuss this in more detail later, but the argument Mark Smith is making is that because the court followed the standards set in Bruen, it was a win. Another point made by the Four Boxes Diner is that the opinion addressed some important distinctions concerning due process and the idea of “responsible persons.” First, the court noted that this case was tried on facial merits. Meaning they took it at face value with the facts at hand. Therefore due process was not an issue. The court saw no need to address it because it was not part of the case. They did, however, note that there was nothing in their opinion that would prevent “as applied challenges” to the statute in question. Which is 922 G. This means that an individual could presumably bring a case to the court that would address the loss of rights without due process. It is great that the court mentioned that in their opinion, but by the time such a case reaches the court, the left could dominate it. There is also no guarantee the court would take such a case. Many people are rightfully frustrated with the court’s refusal to address semi-auto bans in states like Illinois, and New York has gotten away with snubbing their noses at the Bruen decision. The court also noted that the Second Amendment does not just protect the rights of responsible persons but of all Americans. Some of this language may have a positive spin on it but it means little when looking at the court’s recent behavior and considering the time it takes for a case to get there. It is my opinion that they had the opportunity to get it right by addressing the due process issue, and they failed.

Perhaps the most disturbing aspect of this is Chief Justice Roberts’ language concerning Bruen and the laws referenced to justify this opinion. Bruen, as noted earlier, destroyed the current system of interest balancing and dictates that any proposed gun regulation must align with the nation’s historical traditions and the plain text meaning of the Second Amendment. If a person’s conduct is implicated by the plain text, it is the burden of the government to prove their proposed regulation is constitutional. Justice Roberts seems to backtrack as he stated in this ruling that the regulations need only be similar to laws that existed at the time of the founding. He even said that lower courts are misunderstanding their intention in Bruen. In Rahimi, the laws cited justifying the opinion were the nation’s surety laws and going armed laws. Surety laws required people to post a bond to the sheriff if someone may have identified them as a potential threat to the social order. They did not, however, require that the individual be disarmed. Roberts also cited laws allowing for punishment for those who used firearms to threaten others. He argued, that disarming someone deemed a threat is similar in context to these founding-era laws; therefore, they pass constitutional muster. If an individual is found to be dangerous enough to be deprived of liberty, why are they walking amongst us? This opinion by Roberts is going to be exploited by anti-gun courts who despise the restrictions placed by Bruen. Any legal challenges that may arise will take years before they get to the Supreme Court, if they even get there at all. To be fair, Roberts also stated that the Second Amendment is meant to protect all types of bearable arms, and lower courts could not make judgment calls concerning the intent of the founders. When ratified, it was meant to protect the muskets of the time just as much as it was meant to protect arms that had not yet been invented. This is a big statement that could destroy the semi-auto bans waiting for the chance to be heard by the court. If only the court would decide to hear them.

Finally, we have the issue of Extreme Risk Protection Orders, otherwise known as Red Flag Laws. This, in my opinion, is where the court failed to seize an opportunity. Red Flag Laws allow anyone to file a petition to have an individual’s guns confiscated from them if it has been determined by a court that they are a threat to themselves or others. This is where the language in Rahimi is too vague. It states in the simplest of terms, without addressing due process, that if a court finds a person to be a credible threat to another, that person can be temporarily disarmed. Under a Red Flag Law, a person does not need to be informed that a petition has been filed against them. They are not present when a judge makes the final determination, and they have no right to face their accuser. This is not due process. The problem we face now is that we have two presidential contenders who openly advocate for Red Flag Laws. Biden recently created a federal office meant to give support to states who wish to impose them on their citizens, and Trump, who said on live TV that he likes to take the guns first and go to court later because due process takes too long. With this recent ruling by the court, the issue of Red Flag Laws may be exploited because, at face value, there is nothing in the Rahimi opinion that states how a court determines whether a person is a threat to another individual. Is there a trial with the accused present? Is the judge making this determination based on the words and opinions of an individual simply because they don’t like someone’s demeanor? These are serious questions, and because the court failed to address them, we are now faced with the likelihood that any “as applied challenges” will take years of going through lower court processes before finding their way to the Supreme Court.

I think Merrick Garland had a definite strategy in mind when pushing this case to the front of the docket. Commentators like Mark Smith are claiming it was a loss for him because the court allegedly stuck to its Bruen method. It seems to me it was a win for Garland because there is no defining standard for how a court determines whether a person is dangerous or not. Going on the opinion alone, if a court finds the person to be a credible threat to another, they may be disarmed. The lower courts are going to have a hay day with this.

Article posted with permission from David Risselada

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