By Kevin
D. Williamson
Thursday,
July 13, 2023
Over the
coming months, you can expect to hear a great deal about United States
v. Rahimi, the most important Second Amendment case that the
Supreme Court will hear in its next term. And what you will hear is that this
is a case about whether we take domestic violence seriously.
It
isn’t. It is a case about whether we take due process seriously.
Sometimes,
it is easier to understand disputes about the Second Amendment if you pretend
that they are disputes about the First Amendment. The fact is that many of our
progressive friends do not think the Second Amendment should be in the Bill of
Rights and do not consider Second Amendment rights true and legitimate civil
rights. But if Second Amendment rights can be taken away simply because the
right kind of people demand it, then so can the rights protected by the First
Amendment, the Fourth Amendment, or any other part of the Constitution. And
that is what really is at stake in Rahimi.
Zackey
Rahimi is, by all accounts, a real piece of work—“hardly a model citizen” as
the Fifth Circuit Court of Appeals put it in an appellate opinion vacating
Rahimi’s conviction on a federal gun charge. He seems to have been involved in
at least five shootings over the course of a few weeks and was accused of
assaulting a girlfriend, among other misdeeds. He loves to shoot his guns: He
got into a car wreck and shot at the other driver; he shot at a constable’s
car; he threw a fit and started firing off a pistol when his buddy’s credit
card was declined at a Whataburger. (This is, to be sure, a Texas story.) If
the facts of the case are as they appear—and there is no serious reason to think
otherwise—the guy not only has no business owning a firearm, he has no business
walking around in the sunshine as a free man.
Here’s
the thing: Rahimi has never been convicted in any of those instances of
criminal gunplay. Nor has he ever been convicted of any crime of domestic
abuse. The only mark on his criminal record is a misdemeanor marijuana charge
from an arrest shortly after his 18th birthday. Rahimi entered into a voluntary
deal—as part of a civil process, not a criminal case—in which he agreed to a
protective order barring him from contact with the former girlfriend who
accused him of having assaulted her. (Again: There isn’t any reason to doubt
that he did, in fact, assault her, but he has neither been charged with doing
so nor convicted of any crime in the matter.) Under federal law, people subject
to such protective orders are not allowed to purchase or possess firearms. The
language of the statute is very precise, applying its prohibition to a person:
… who is subject to a court order that was issued after a hearing of
which such person received actual notice, and at which such person had an
opportunity to participate; restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of
such intimate partner or person, or engaging in
other conduct that would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and includes a finding that such person
represents a credible threat to the physical safety of such intimate partner or child; or by its terms
explicitly prohibits the use, attempted use, or threatened use of physical
force against such intimate partner or child that would reasonably
be expected to cause bodily injury.
Many of
the criteria under which a U.S. citizen can be prohibited from purchasing or
possessing a firearm involve some kind of legal process: A citizen can be
prohibited from owning a firearm after being convicted of a felony or certain
misdemeanors, including domestic violence misdemeanors; a person can be
prohibited if he is under indictment for such a crime but has not been
convicted; a person can be prohibited because he has been adjudicated to be
mentally incompetent; a person can be prohibited because of a dishonorable
discharge from the armed forces. But a person can be prohibited for other
reasons, too, reasons that do not involve courtroom standards: if he is a drug
addict or an unlawful drug user, even if he has not been charged with a crime;
if he is illegally present in the United States or is an alien lawfully present
through a nonimmigrant visa. It is unlawful for a minor to purchase a firearm,
and illegal to purchase a firearm on behalf of a prohibited party.
There
are a lot of different kinds and levels of legal process involved in those
prohibitions—due process is not universal but is the process that is due, or
obligatory, for a particular situation. The gold standard, in this context, is
a criminal conviction. People lose their constitutional rights and political
rights (such as the right to vote) after felony convictions pretty commonly.
That can include losing not only the right to keep and bear arms but also First
Amendment rights: Cybercriminals and traffickers in child pornography, for
example, are sometimes prohibited from using the internet or have very strict
limitations on their use of communication technology. Felons may also lose
their Fourth Amendment rights, for some period, as parolees are subject to
intrusive searches that other citizens are protected from.
A
citizen’s rights can be curtailed, at least for a time, without a criminal
conviction: People under indictment may lose their Second Amendment rights for
a time, may have their travel restricted, etc. The process by which someone is
judged mentally incompetent or is involuntarily committed to a mental
institution can vary a good deal, and the matter will go before a judge, but it
is not as burdensome a process for the state as obtaining a criminal
conviction. There isn’t any necessary judicial process for declaring a minor a
minor or an illegal alien an illegal alien, and restricting minors and
noncitizens is a longstanding and generally uncontroversial fact of American
legal life. Being a drug addict isn’t really a legal status at all, or even a
medical one, in the sense that a drug addict is a drug addict irrespective of
whether a doctor has judged that he is addicted in a medical sense.
I know that
my progressive friends do not like to think of Second Amendment rights as civil
rights, but that is what they are under our constitutional order. To secure
these rights in an explicit way is why we have a Bill of Rights. The due
process involved in securing a felony criminal conviction is not the only level
of protection that may be appropriate in these cases. Yet we should be very,
very careful when it comes to curtailing the rights of people who have not been
convicted of a crime or, in many cases, even charged with one or even under
investigation for one. Remember the post-9/11 issues with people being put on
no-fly lists simply for having the wrong kind of name. (“Muhammad” was by far
the most common name on the leaked no-fly list, which placed prohibitions on
travelers as young as 4 years old and on others more than 100 years of age.)
The precedent we set for the Second Amendment is going to affect how we look at
the First Amendment, the Fourth Amendment, and the rest of the
Constitution.
What is
at issue in Rahimi is whether it is constitutional for the
federal government to suspend the Second Amendment rights of a citizen who has
not been convicted of a crime, who has not been charged with a crime, and who
does not even face the possibility of being charged with a crime in the case of
a civil matter. Zackey Rahimi has since been charged with
other crimes, but the only crime with which he was charged in the matter in
dispute was possessing a firearm while under a protective order stemming from a
noncriminal proceeding. It may very well be the case that Rahimi should have
been charged with domestic violence—and much else—but he wasn’t.
Rahimi’s
conviction originally was upheld by the Fifth Circuit, but then it was
overturned in a subsequent challenge following the Supreme Court’s Bruen decision.
It is not—not!—the case that, as one writer put it in Slate, “since the Founding
Fathers hadn’t specifically mentioned domestic violence, they argued, domestic
abusers should be free to own the weapons of their choice.” That, from a piece
by Abigail Esman, is incompetent journalism, positively wrong on the facts—but
you should expect to see a lot of that, too.
What the
court actually held in Rahimi has very little to do with how
domestic violence was treated in the 18th century. Instead, the
court asked the government to show under what precedent it assumed the powers
to set aside the constitutional rights of a citizen “when the individual has
not been criminally convicted or accused of any offense and when the underlying
proceeding is merely civil in nature.” The court wrote:
To [the federal law’s] burden on Rahimi’s Second Amendment right, the
Government bears the burden of proffering “relevantly similar” historical
regulations that imposed “a comparable burden on the right of armed
self-defense” that were also “comparably justified.” And “when it comes to
interpreting the Constitution, not all history is created equal. Constitutional
rights are enshrined with the scope they were understood to have when the
people adopted them.” … We thus afford greater weight to historical
analogues more contemporaneous to the Second Amendment’s ratification.
There
are longstanding precedents for suspending various rights of people who have
been convicted of crimes or, temporarily, those of defendants who are awaiting
trial, just as there are longstanding precedents for limiting the rights of
minors, people in military service, etc. But what about citizens who haven’t
been convicted or charged with a crime, or subjected to some careful legal
process such as that involved in declaring someone mentally incompetent? In
Rahimi’s case, there wasn’t even a formal hearing, and Rahimi did not have the
benefit of legal counsel in the matter. Judges are notoriously promiscuous when
it comes to protective orders; some years ago, a woman who said David Letterman
was harassing her via coded messages in his television program sought a
protective order against him—and was given it, at least until it was quashed
later by another judge. Protective orders issued on flimsy pretexts are pretty
standard fare in divorce and custody cases, and in some other kinds of
litigation. In Texas, protective orders typically last for two years, but a
judge can, at his discretion, impose a permanent—lifetime—restraint.
The
government’s attempt to defend the law in this case relied on a number of very
weak historical precedents, including laws that were used to disarm Native
Americans and African Americans on the theory that these groups of people were
simply too dangerous to be trusted with the same firearms that white men might
keep and bear. The government even cited the campaigns of British monarchs to
disarm their political opponents as precedent—tyrannical actions that produced
the very measures in the 1689 English Bill of Rights that inspired the Second
Amendment—i.e., the government tried to justify gutting the Second Amendment by
citing precisely the royal abuses that led to the Second Amendment’s being
adopted in the first place. That kind of lawyering seems to me almost as
incompetent as Slate’s journalism. Finding no justification for the
law in the Constitution itself or in our legal history and tradition, the court
ruled that, under the Bruen standard, the law in question is
unconstitutional.
A few
thoughts.
First: I
am not sure that the law in question ought to be ruled unconstitutional as a
legal matter. About that, The Dispatch has many
better-informed writers than me. I will repeat, however, that there are
different levels of protection at work here, from the high level of protection
afforded to criminal defendants to the lower level of protection offered to
other kinds of prohibited parties. If a protective order is produced by a
hearing in front of a judge, affords the restricted party some kind of legal defense
and the possibility of appeal, and comes with a relatively brief expiration
period (say, one year or less), then I think gun temporary prohibitions based
on such an order are probably defensible as law, certainly as policy. I also
tend to take a more federalist view of gun rights than many of my fellow gun
rights advocates: I do not see any constitutional or prudential reason that the
gun laws in midtown Manhattan have to be exactly the same as those in rural
Wyoming, much as regulations touching free speech rights (e.g., rally permits
and parade rules) vary substantially from location to location, taking into
account local conditions while operating within the confines of the First
Amendment.
Second:
I know that I am a bore on the need to enforce the laws we have on the books
rather than look for new ways to encumber the Second Amendment, but this is a
textbook case. This goon is shooting off guns all over town, and there were ten
different ways to lock him up without even brushing up against the Bill of
Rights—for example, it is illegal to shoot people, to shoot at people, and to
shoot in protest of being denied a meal at Whataburger. We have laws—criminal
laws—against domestic violence. Police say they believe Rahimi is a drug dealer
linked to any number of violent crimes, but they never got around to charging
him with much—or, prior to the matter in question, convicting him of anything
other than the teenage marijuana misdemeanor—before somebody literally made a
federal case out of it. A lot of taxpayers in and around Tarrant County, Texas,
should be asking what in the heck their money is being used for.
Third:
There is, beyond the formal legal question, a civic question. And that is the
one that interests me most: What kind of society do we want to have? Obviously,
we want to be a society in which it is very difficult for goons to get their
hands on weapons. We want to be a society that takes violence against women
seriously. But we also want—should want—to be a society in which
people who have not been convicted of a crime may suffer
having their civil rights curtailed only in the most extraordinary of
circumstances subject to the most demanding of constitutional safeguards. It
used to be an uncontroversial truism that we’d prefer to see ten guilty men go
free than one innocent man convicted; but criminal trials have high levels of
legal protection for the accused, high standards of evidence, etc.—how much
more solicitous should we be when it comes to people in situations in which
such protections do not come into play?
It is
worth repeating here that the government tried to justify its case against
Rahimi by citing laws that were used to exclude Native Americans and African
Americans from the constitutional rights enjoyed by whites and laws that were
used by British kings to oppress their political opponents—look at the history
of how New York City has handled concealed carry permits for an example of how
the powerful and connected get liberal treatment while the powerless and
unprotected are subjected to the most stringent scrutiny. Billionaire heirs such as Ron Lauder
and celebrities such as Howard Stern were long able to carry guns in New York
City when any
ordinary person—meaning you—would do two years in jail for
exercising the same right. Rahimi may be a thug, but it is not thugs alone who
risk abusive treatment by police, prosecutors, and other agents of the
criminal-justice system.
It is
particularly disheartening that journalists are leading the campaign against
civil liberties. That incompetent Slate piece is headlined, “SCOTUS Is Really
Considering if Domestic Abusers Should Be Allowed Guns.” Many other pieces are
similarly written. Vox insists that the “Supreme Court will decide if
abusive spouses have a right to own guns.” But as far as the court is
concerned, Rahimi is not a domestic abuser—as far as the court
is concerned, he becomes a domestic abuser when he is convicted of a crime of
domestic abuse, an offense with which he has not been so much as charged.
If the devil himself gets the
benefit of the law,
then so does a minor violent criminal in the DFW suburbs. The fact that we seem
to be losing the civic understanding that justice under the law is a matter
of procedure—not a matter of outcomes—is worrisome. We
are like the characters in Game of Thrones who, living in a
fallen and degraded age, cannot remember how the vast edifice that protects
them and their way of life was built, and who lack the skill to build anything
so ambitious themselves. But we have to remember if we are going to survive in
possession of the inherited liberties we cherish.
No comments:
Post a Comment