Both sides in the debate over the Second Amendment will be watching the U.S. Supreme Court closely in 2024 as it applies the standards from previous decisions to new high-profile cases.
“The test that ... applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding,” Justice Clarence Thomas wrote for the majority in June 2022.
One of the first major post-Bruen cases, United States v. Rahimi has court watchers curious about how Bruen will be applied. The high court heard oral arguments on Rahimi on Nov. 7, 2023.
Federal law currently bars those who are under domestic violence restraining orders from possessing guns. The Supreme Court in the Rahimi case will decide whether it stays or goes.
Gun control advocates say the “text and tradition” standard of the Bruen decision, if applied in Rahimi, would allow violent abusers access to guns, resulting in the deaths of domestic violence victims.
Gun rights advocates say the Rahimi case has been mischaracterized as an attempt to arm violent criminals when it’s really about protecting society without preemptively suspending constitutional rights.
“It’s going to answer one issue, which is, ‘Do we as a country have a historical tradition of disarming people that we believe to be dangerous?’” William Kirk, a Washington state-based lawyer who specializes in the Second Amendment, told The Epoch Times.
“And the answer is, ‘Yes, we do.’”
Second Amendment lawyers predict that the Supreme Court will uphold the federal domestic violence law in Rahimi. They hope that the court will also ensure that due process rights are protected and an avenue for returning confiscated firearms is preserved.
“The real issue being decided goes far beyond the narrow question,” Tom Grieve, a Wisconsin criminal defense lawyer, told The Epoch Times.
Mark Smith, a constitutional attorney and author, agreed. He said it’s vital that the court protect the due process rights of gun owners.
“The most important thing Second Amendment supporters should want the Supreme Court to state in the Rahimi case is that the government may not disarm any American citizen unless there is first and foremost a court finding that a person is violently dangerous, after a robust evidentiary hearing with counsel, live witnesses, and ample due process,” he wrote in an email to The Epoch Times.
In 2019, he was placed under a domestic violence restraining order that barred him from possessing or purchasing firearms. Mr. Rahimi reportedly agreed to the order during a court hearing. He later assaulted a different woman and was involved in at least five more shootings, court records show.
He was indicted by a federal grand jury in the U.S. District Court for the Northern District of Texas for violating the restraining order after police found guns, drugs, and cash in his home.
He asked the Court of Appeals for the 5th Circuit, which covers Texas, Louisiana, and Mississippi, to toss the indictment because the restraining order was issued before he was convicted of any of the crimes for which the order was issued.
The court upheld the indictment. He pleaded guilty to violating the restraining order and was sentenced to 73 months in prison.
Define ‘Dangerous’
DOJ lawyers told the court that the 5th Circuit had misread the Bruen decision.At that time, Republican-appointed Chief Justice John Roberts asked Mr. Rahimi’s lawyer, J. Matthew Wright, “You don’t have any doubt that your client is a dangerous person, do you?”
When Mr. Wright said it depends on what was meant by ‘dangerous person,’ the chief justice responded with, “Well, it means someone who’s shooting, you know, at people. That’s a good start,” according to The Associated Press.
However, Justice Samuel Alito, a Bush appointee, expressed concern that someone could receive a domestic violence restraining order without “any finding of dangerousness” before losing their Second Amendment rights.
“Now, suppose someone is later prosecuted for violating that provision. Would it be a defense for that person to say that the state law in question did not require such a finding and, in fact, there was no such finding in my case?” he asked U.S. Solicitor General Elizabeth Prelogar.
Mr. Kirk, who also hosts a YouTube channel focused on Second Amendment issues, expects the court to be particular in its decision.
“It’s going to be a narrow, tailored opinion, and it’s going to answer one issue, which is, do we as a country have a historical tradition of disarming people that we believe to be dangerous? And the answer to that question is, ‘yes, we do,’” Mr. Kirk told The Epoch Times.
While he agrees with Mr. Kirk on what the court will likely decide, Mr. Grieve said that the bigger question is how the justices will come to their conclusions.
“There’s a lot of ways this can go, right and wrong. And I think we may see a mixture of both,” he said.
Mr. Grieve pointed out that under Bruen’s text requirement, the justices will need to determine the definition of “the people.”
“What are the limits of the phrase ‘the right of the people?’ Is it just law-abiding citizens? Is it everyone?” he said.
Conflicting Ideas on Tradition
According to Mr. Grieve, many gun control advocates point out that the Second Amendment was incorporated into the states under the Constitution’s 14th Amendment, which guarantees equal protection under the law.But most gun rights activists say tradition requires the court to consider the law in the context of the year that the Constitution was ratified, 1788. At that time, there were far fewer gun regulations.
“There is seemingly no end to the directions this could be going,” Mr. Grieve said.
And while it’s not as significant in the Rahimi case, some gun rights advocates expect due process to be a factor.
This was evidenced by Justice Alito’s question about whether “a finding of dangerousness” should be required before firearms are confiscated.
Aidan Johnston, director of federal affairs for Gun Owners of America, said this is crucial since many state red flag laws don’t have any due process requirements. He said this could result in the disarming of people who need protection during contentious divorce proceedings.
“Often, an innocent victim is deprived of the right to defend themselves. The Second Amendment is actually about empowering the victims,” Mr. Johnston told The Epoch Times.
He said the real question is not when to confiscate guns but rather when dangerous individuals should be locked up. That’s a question that Mr. Johnston said the government doesn’t seem interested in.
“The government likes to prosecute gun control violations. They blame the guns and not the people,” he told The Epoch Times.
“Zackey Rahimi was a dangerous and violent actor who should have been removed from society. The government has it all backward,” Mr. Johnston said.
Gun rights advocates say Rahimi is the most consequential Second Amendment case before the court.
Federal Overreach
Rahimi isn’t the only major case at the Supreme Court—two other high-profile Second Amendment cases involve more legal questions than just gun laws.Cargill v. Garland is more than just a case about the legality of using a bump stock, an accessory to increase a shooter’s rate of fire. The real question is how much authority government agencies are allowed to exert.
“Are we really going to allow administrative agencies to combine all three branches of the government into themselves?” Mr. Grieve asked.
The Cargill case came about in the wake of the 2017 Las Vegas shooting in which a killer used rifles outfitted with bump stocks to fire at concertgoers in Las Vegas, killing 58 and injuring hundreds in about 10 minutes.
Then-President Donald Trump requested the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to consider whether the devices could be reclassified as illegal machine guns.
In 2018, seemingly at President Trump’s behest, the ATF reversed years of written opinions—some issued in response to inquiries from members of Congress— and reclassified bump stocks as machine gun parts regulated under the National Firearms Act of 1934.
For decades, this has been understood to mean that the gun will fire for as long as the shooter keeps the trigger pressed and will stop firing once the trigger is released.
A bump stock allows the shooter to use the rifle’s recoil to “bump” the trigger with their finger. This increases the rate of fire while ensuring that the trigger is pressed for each shot.
From 2010 to December 2018, the ATF held that bump stocks don’t convert rifles into machine guns and, therefore, aren’t subject to the very strict legal requirements that machine guns fall under.
Even gun control advocates decried the ATF’s 2018 reclassification as unconstitutional.
The late U.S. Sen. Dianne Feinstein (D-Calif.) said the rule change was problematic. An ardent gun control supporter and author of the 1994 Assault Weapons Ban, Ms. Feinstein predicted the legal battle that’s playing out.
She pointed out that even an organization that represents current and former ATF agents disagreed with the decision.
“If ATF were to change its view after a six-month review, lawsuits would be filed immediately.”
And they were.
In 2019, Texas resident Michael Cargill sued, claiming that the ban is an unconstitutional usurpation of Congress’s legislative powers by the DOJ and the ATF at the direction of President Trump.
Mr. Cargill’s claims eventually found their way to the 5th Circuit Court of Appeals, which ruled in his favor.
The ruling from the 5th Circuit states: “Cargill is correct. A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of ‘machine gun’ set forth in the Gun Control Act and National Firearms Act.”
The DOJ appealed that decision to the Supreme Court.
While there have been conflicting decisions in the lower courts, lawyers who spoke with The Epoch Times expect Mr. Cargill to prevail.
“You have seen court after court after court shut all of this down. They’re shutting them down because they have violated the Administrative Procedure Act. They essentially have gone well outside the scope.” Mr. Kirk said.
Gun Owners of America filed its lawsuit when the bump stock ban was announced and has supported other legal actions as well, Mr. Johnston said. He pointed out that the ban was placed during a Republican administration, proving that gun control isn’t a partisan issue.
Mr. Johnston said the bump stock ban set a precedent for administrative overreach that must be stopped.
“This paved the way for the Biden Administration; it opened the floodgates,” he said.
It’s a legal issue that needn’t have begun, Mr. Kirk said. He said that after the Las Vegas mass shooting, President Trump or any politician who wanted to ban the devices could likely have found support in Congress.
“Now, in the days immediately after [the shooting], do we honestly think that there was not the political clout and will to pass a bump stock ban?” Mr. Kirk asked.
While Cargill is, at its core, a Second Amendment case, Mr. Grieve said that, as with Rahimi, there’s a bigger question.
“Do we want the ATF to be the judge, jury, and executioner?” he asked.
Both he and Mr. Kirk agree that Mr. Cargill is likely to prevail and that no one will be surprised by the decision.
“I think we’re going to see some kind of measured strike down of this. Everybody from every side of the aisle saw this coming,” Mr. Grieve said.
Regulatory Authority
Another case that gun rights advocates are watching involves firearms but isn’t a Second Amendment case.Civil libertarians, business groups, and Second Amendment supporters say the National Rifle Association (NRA) v. Maria T. Vullo could be a landmark First Amendment case.
The NRA claims that Ms. Vullo and New York State officials used their regulatory authority to coerce insurance companies, banks, and others into cutting ties with the Second Amendment advocacy group.
Ms. Vullo was the superintendent of the New York State Department of Financial Services (DFS), the regulatory agency overseeing financial institutions for the state of New York.
The case has even drawn the American Civil Liberties Union (ACLU), typically on the opposite side of the fence from the NRA, over to the gun rights group’s defense.
“Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. ... The First Amendment bars state officials from using their regulatory power to penalize groups merely because they promote disapproved ideas,” the statement reads.
Mr. Smith said the ACLU’s involvement is proof that the issue has less to do with guns, finances, or the Second Amendment than with the First Amendment.
“The ACLU’s involvement in NRA v. Vullo is a big deal because the ACLU doesn’t support the NRA’s agenda, but they do believe in a robust and broad interpretation of the right to free speech under the First Amendment,” he wrote.
Ms. Vullo’s lawyers didn’t respond to a telephone message seeking comment. But in her response to the NRA’s petition, Ms. Vullo denied any wrongdoing.
An attorney for the NRA expressed confidence that the case is now with the Supreme Court.
“We are grateful the Supreme Court will review this First Amendment case and eager to argue to the court that government officials who take adverse action against their political enemies do so at their own risk,” William A Brewer, III, a lawyer for the NRA, wrote in a statement to The Epoch Times.
The case centers around Carry Guard, a now-defunct insurance plan promoted by the NRA for people who carry firearms for self-protection. The plan was designed to cover legal and other expenses for those involved in a self-defense shooting. Critics derided the plan as “murder insurance.”
According to the NRA’s petition, in October 2017, the DFS—under Ms. Vullo and then-Gov. Andrew Cuomo’s direction—began an investigation into Carry Guard.
The DFS investigation focused on insurance broker Lockton Companies, LLC, which administered the program, underwriter Chubb Limited, and the insurance marketplace Lloyd’s of London.
A couple of months after the Feb. 14, 2018, shooting at Marjory Stoneman Douglas High School in Parkland, Florida, and while the DFS investigation was still underway, Ms. Vullo sent two memoranda titled “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.”
The memoranda referenced the Parkland shooting as well as other high-profile mass shootings.
“While the social backlash against the National Rifle Association, and similar organizations that promote guns that lead to senseless violence, has in the past been strong. ... society, as a whole, has a responsibility to act and is no longer willing to stand by and wait and witness more tragedies caused by gun violence, but instead is demanding change now,” Ms. Vullo wrote.
“The Department encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”
“This is not just a matter of reputation; it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all,” the then-governor stated.
The NRA claims that Ms. Vullo also had private conversations with management at several companies in which she offered to show leniency on some infractions.
NRA lawyers told the court that “numerous financial institutions perceived Ms. Vullo’s actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.”
The NRA claims that it was targeted for its political message and that the investigation and fines were punishment for a political stance that New York government officials disagreed with.
The ACLU wrote on its website that New York officials had overstepped their authority.
“There are acceptable measures that the state can take to curb gun violence. But using its extensive financial regulatory authority to penalize advocacy groups because they ‘promote’ guns isn’t one of them,” the ACLU website reads.
Mr. Grieve agreed. He predicted that the NRA, which is fighting several legal battles, including a corruption lawsuit with the state of New York, will prevail because, in his view, the state overstepped its authority.
“This is so outlandish, I just don’t see another solution,” he said.
