Supreme Oral Arguments: Do Gun Rights Rest on Responsible Behavior

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Hubwonk Rahimi Oral Transcript

Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. On November 7th, the United States Supreme Court heard oral arguments in the case of USA v. Rahimi, a case that at its essence seeks to determine which behavior by a citizen could be sufficiently dangerous to be legally prohibited from owning a firearm and what procedures would offer sufficient due process to make that prohibition constitutional.

Zachary Rahimi was indicted for violating a federal statute under which it’s unlawful for someone to possess firearms if they’re under a domestic violence restraining order. The task for the U. S. Solicitor General was to persuade the court that while Mr. Rahimi had not been convicted of a serious crime, his demonstrated dangerous behavior as determined by a civil judge was sufficient grounds to legally prohibit his possession of a firearm.

Mr. Rahimi’s attorneys, by contrast, needed to make the case that though he had committed dangerous acts, Mr. Rahimi was subject to an unconstitutional law when prohibited from owning a firearm. The oral arguments that lasted nearly an hour and a half offered constitutional scholars a vivid display of the nuances and merits of the issues in this case.

What were the arguments from the plaintiff and U.S. defense? How did the questions posed by the nine justices reveal their views on the Second Amendment? And how did the skills of the respective attorneys likely serve to influence and shape the outcome of a case that may define the limits of gun control and prohibition in the future?

My guest today is Attorney Clark Neily, Senior Vice President for Legal Studies at Cato Institute. Mr. Neily, who appeared on Hubwonk in October to discuss his views on the Rahimi case, had the opportunity to attend the USA v. Rahimi oral arguments live. In part, owing to his experience as co-counsel in the pivotal D.C. v. Heller Supreme Court case. Attorney Neily will share his observations on the strength of the litigants’ presentations and arguments, how the questions posed by the nine justices suggest how they’re likely to rule, and how the possible outcome of the case will affect Second Amendment law in the future.

When I return, I’ll be joined by legal expert, Attorney Clark Neily. Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi. I’m now pleased to be joined by Cato Institute’s Senior Vice President for Legal Studies, Clark Neily. Welcome back to Hubwonk, Clark.

Clark Neily: It’s great to be with you, Joe. Thanks.

Well, great to have you back, it wasn’t long ago that you were a guest here on Hubwonk and, you offered, and I accepted your offer to, come back and do a rehash after the oral arguments in a, I think, a somewhat, substantial case in, at the Supreme Court, USA v. Rahimi, you and I in our episode, more than a month ago, maybe six weeks ago, talked about what was likely to be the arguments in the oral arguments.

Then, you got a front row seat, as we said, you and Thomas Barry also from Cato were invited. You were there live to watch the oral arguments. It must’ve been quite an impressive event, but so I want for our listeners to compare what we thought would be the points argued in the case and what was actually argued because I think there’s a substantial difference.

And I want to credit where credit’s due. Let’s acknowledge our arguments. Let’s, and let’s compare them with what actually happened. So, let’s start at the beginning. Before we get to the beginning, how is it that you got lucky enough to be in the courtroom while this case was being argued?

Clark Neily: Yeah, there’s this interesting procedure that a lot of people don’t know about where, when you become a member of the Supreme Court bar, so you actually have to be admitted to a special bar, for people who get to file briefs in front of the Supreme Court, the qualifications are not too difficult.

You have been practicing for a couple of years and, but you need somebody who’s already a member of the bar to sponsor your membership or to move you as the terminology goes. And so, I’m a member of the bar and my colleague, Tommy Berry, wanted to be admitted to the Supreme Court bar. and so there’s two ways to do that.

You can just do it purely through the mail, in which case you get a nice little certificate and that’s the end of it. Or you can ask to have it done, in court. And that’s how Tommy wanted to do it. And what happens is the person who’s going to be sworn into the Supreme Court bar shows up with a person who’s already a member who’s going to move their admission, and that’s the first thing that happens, when the court commences its session. a number of people, usually anywhere between, let’s say half a dozen and maybe two dozen people will be moved in. So their sponsor will go up to the podium and tell the Chief Justice that they move the admission of so and the bonus is that once that’s done, you get to stick around for the argument and you’re right there, really in the first row of the spectator area, right behind where the lawyers were actually arguing the case get to sit. 

Joe Selvaggi: Wonderful. So, the 50-yard line of a very important case. No, I didn’t see it of course, I wasn’t there, but I did listen to the roughly hour and a half oral argument of by a C-Span, which I thought, it’s wonderful that we have those resources. For the benefit of those listeners who didn’t hear our earlier episode, let’s just rehash the facts of USA v. Rahimi. It’s a Second Amendment gun-related case. So just give us the 10,000-feet view of the case. 

Clark Neily: So, there’s this federal law that is found at 18 U.S.C. section 922, and it has a number of provisions that make it illegal for certain people to own a firearm. This would include people who have been convicted of certain crimes, anyone who is an unlawful user of a controlled substance, or, as in this case, anyone who is the subject of a domestic violence restraining order that has been issued by a state court.

And the defendant in this case, Zachary Rahimi, was the subject of a domestic violence restraining order from a state court in Texas. Upon the entry of that order, it then became a federal crime for him to continue to own firearms, which he did, and when some sheriff’s deputies showed up at his apartment to serve a warrant on him for some other conduct that he allegedly engaged in, they found both a rifle and a pistol in his apartment, along with the domestic violence restraining order that made it unlawful for him to own firearms. And so, they referred that situation to the U.S. marshals who then brought it to the Department of Justice.

This resulted in a federal prosecution under this Section 922 G8 and Rahimi was convicted, received, I think, a 72-month prison sentence, which he then appealed in the wake of this Supreme Court case called Bruen that came down in June of 2022. And his argument was essentially that, the federal law under which he was convicted, the one that makes it illegal for anyone who’s the subject of a domestic violence restraining order, was unconstitutional, because it was not disarming people who’ve been found to be potentially domestic abusers was not part of our history and tradition, in this country and the statute was too broad.

The Fifth Circuit Court of Appeals agreed with that, and declared the statute to be unconstitutional, and then it was that decision that was on review in the Supreme Court, at the argument you’ve been referring to. 

Joe Selvaggi: Sure. We’ve got a bad actor, a guy who’s not particularly, responsible, but he wasn’t allowed to own a firearm and decided to own a firearm and got locked up. I think, again, to rehash our argument, our concern, or your concern particularly, was that this was a restraining order. Now, not sufficient process was offered, this is a fundamental right, the right to own a firearm. And it was, in a sense, taken without what we would might regard as due process. If you’re going to take someone’s fundamental rights away, you had better be very careful before you do it. I think again, I don’t want to put words in your mouth, but I’d say our, let’s say, sympathies with Mr. Rahimi’s argument was that he, though he may be a bad guy, he wasn’t given enough process before his gun rights were taken away. Is that fair? 

Clark Neily: Yeah, that’s right. And look, let’s be clear. This is a commitment that we as a country have that exists in all different kinds of scenarios. for example, when somebody is convicted of a capital crimes, so a murder for which the death penalty could apply, that person is usually guilty and usually a really bad person, but we have a tremendous amount of death penalty litigation that is centered around the idea that they also receive or that they are entitled to receive a death penalty. A certain amount of due process before the state convicts them and potentially puts them to death. Another scenario, which I think would be more sympathetic would be what about when it comes to terminating or suspending your parental rights? So, you’ve been accused of doing something that could result in the suspension of your parental rights.

So, you can’t see your kids anymore. And the question would be, okay, how much process do you get to make sure that in fact, you did that thing? And that’s really the angle that we took last time was to say, This guy, Zachary Rahimi may, in fact, be a bad guy, but did the, was the legal process that resulted in the issuance of this domestic violence restraining order that then triggered the federal prohibition on him owning a firearm was it a sufficiently robust process so that we can be confident, that, essentially anyone against whom such an order has been issued is, in fact, a dangerous person or potentially dangerous person. That was the issue we focused on, but it really wasn’t the issue that the court focused on during the argument. 

Joe Selvaggi: So then let’s do that. Let’s jump to the oral argument. I’d like to say, I feel like we were like sports commentators predicting whether the Giants or the Patriots would win. But ultimately, that’s why you play the game. And ultimately, the oral arguments are where you see the game being played, presenting for the U.S. Department of Justice, is the Solicitor General, Elizabeth Prelogar, yeah, okay. And, for Mr. Rahimi was Attorney Wright. I listened again. As I said, for an hour and a half, listen and both make their case.

It seems like a little bit of a mismatch in talent. I thought, the solicitor general, her arguments were very precise, clear, very narrowly defined. And as she seemed to know her arguments backwards and forwards, whereas Mr. Wright seemed a bit less focused. What were your impressions being in the room?

Clark Neily: Let’s give credit where credit is due. Most lawyers in America would be overmatched. If they were up against Elizabeth Prelogar, she’s really 1 of the great Supreme Court advocates of our generation and, hats off to her, for really doing an excellent job in this case. Now, that being said, I would say, as an experienced litigator myself, it is a lot easier to look good in court, when the judge is already on your side. It was very clear that most of the justices wanted to go in the direction that she wanted them to go. And so, it’s somewhat easier, when you’ve got a court that is sympathetic to your position, and you’re essentially just showing them and you’re assuring them, hey, we can get to where you want to go, judges. Let me show you how to do that. And she did that very effectively. but I will say, as sitting there in person, I would say there was never even the slightest doubt about which way the majority and perhaps even all of the justices wanted to go in this case.

And so, her job, I think, was less in persuading them which way to go and more in persuading them that they can get where they already wanted to go in a way that was principled and consistent with their earlier ruling in the Bruen case, and that I think she did an extremely effective job of doing.

Joe Selvaggi: So, I want to return to Ms. Prelogar later, although she argued first, I want to handle her argument second. Let’s talk about Attorney Wright’s case. Given that he, let’s say, presented a case that both the lower courts agreed with, and perhaps I might argue that you and I agreed with, do you think he made a fair presentation, a fair defense of Mr. Rahimi’s case and his rights?

Clark Neily: I agree with you that his presentation was in some ways less thematically consistent, than the Solicitor General’s, but in part, I think that’s due to the difficult position that he finds himself in, because keep in mind, or recall, he is applying to — he is representing a criminal defendant who has been convicted under a given statute.

And when you bring a civil case, and the Heller case that I was involved with as a civil case, you can bring that case to court, and if you get the sense that the judge is not with you, you can back up your argument a little bit. You can circle the wagons a little more tightly. You can make a concession over here in order to seem more reasonable. But when you represent a criminal defendant, it limits how much you can back off because you can only back up far enough to the point of insisting still that the conviction should be overturned, and you can’t give up more than that. And so, one of the most difficult questions that he got asked, and I think he got asked the question repeatedly, but point blank from Chief Justice Roberts, is your client a dangerous person? That’s a problematic question for a public defender representing this person in particular, because based on not only what appears to have happened in the case below, but also in, there were some other allegations of criminal misconduct that occurred after the domestic violence restraining order was issued.

This guy’s accurate image looks like a bad actor. And someone who does appear to be a dangerous person. What are you supposed to say about that? Yes, my client is a dangerous person, but I think that he should still be able to own a gun. So, it really puts a criminal defense lawyer in a very difficult position and a different position than a lawyer who’s bringing a civil case trying to vindicate a given constitutional right. Those two are not the same and defending a criminal conviction or trying to get a criminal conviction overturned, which is what Rahimi’s lawyer is trying to do is a more difficult position to be in. 

Joe Selvaggi: You mentioned in your response there that he’s a public defender. I’m curious how it is that a public defender could be standing in front of the Supreme Court. It seems that your impression of him was that he was in a difficult spot and did the best with what he was given. Could there have been, let’s say someone of the caliber of Ms. Prelogar, to defend him? Or am I just, this is just a lay person, not understanding how tough his job really was?

Clark Neily: A few points about that. First of all, the Federal Public Defender Service, and that was what Rahimi’s lawyer was a federal public defender, is really, they’re an excellent group of lawyers, and do they argue in the Supreme Court as often as some other lawyers do? No, they don’t, but they are still good lawyers very good at what they do. We can only really speculate about whether this case could have been. It’s not unusual for lawyers in Mr. Wright’s position to hand off a case like this to one of a smaller group of lawyers who are sort of members of this informal Supreme Court bar that repeatedly argue cases in front of the court the optics in this case were tough, right? Because this is somebody who is accused of being a domestic violence offender, who’s also accused of engaging in some other violent behavior. This is not a case, I think, that the standard cast of characters that would normally be eager to take over a case at the Supreme Court stage were probably flocking to.

It’s possible that there was an opportunity to hand this off, our future houses the opportunity to hand this off. but I can assure you that this is not a case where very many people would have been knocking on the door to say, hey, let me take over this case at the Supreme Court.

Joe Selvaggi: All right. So, let’s shift to General Prelogar, and her case. She is right in her opening arguments. I think I don’t have the quotation for me. I should have written it down, but I’ll paraphrase it. essentially the difference between a battered domestic abuser abuse victim and a dead domestic abuse victim is the presence of a gun. I’m like, wow, you know, that’s a bold statement. I’m a lay person, but I say what I loved about her argument was that she said, okay, we’re talking about responsible law-abiding citizens. You and I use those terms. And she broke down what each of those meant, and she sort of pushed to the side two of those terms and focused on one of them. Talk to our listeners, speak to that. What is the difference between, let’s say, what I think our argument was is, this guy, though he’s a bad guy, he’s a dangerous guy, but he didn’t break a, you know, he didn’t, he’s not a felon. Why is that a fundamental difference when we talk about dangerousness and law abiding, that sort of thing? Flesh that out for us. 

Clark Neily: Yeah, so, there are really two distinct questions I think have to be answered in this case. One, is if we assume that a given person has done X is X sufficient to suspend their Second Amendment right to arm self-defense? So, the conduct itself with that kind of conduct. So some of the examples that were used where Chief Justice Roberts said, if somebody goes 30 miles an hour in a 25 mile an hour zone, technically, they’re not law abiding.

So, would that be enough? Or, if they mingle their trash with their recycling, and they don’t separate those, that’s not a responsible thing to do. Would they still be a responsible person? Point one is we have to figure out, okay. what kind of conduct either that you have already committed or that you’ve been found likely to commit.

Would be sufficient to suspend your Second Amendment rights and then the second — and and this is really what you and I focused on the last time — is how confident do we need to be? Once we’ve identified what X is, in other words, what conduct would be sufficient to trigger the loss of Second Amendment rights? How confident do we need to be in the process by which the government determined that? In fact, you did X, right? And I would say that. Because of the, again, the optics in this case, because it is just in your gut, you can feel that this guy Rahimi is just a bad person. And I would say also, because of the way the Solicitor General very successfully framed the argument, the court devoted the bulk of its attention to that X question.

What is it that would be sufficient to Second Amendment rights and very little time focusing on. Okay. And how clear is it that this particular person egaged in that conduct. And so, what General Prelogar did was to essentially argue, look, there are essentially two prongs here that emerge from this court’s interpretation of the Second Amendment in the Heller case and in the Bruen case.

And in order to exercise your Second Amendment rights or to not have them suspended, you have to be both law abiding and responsible. First question, somebody who drives 5 miles an hour of the speed limit, are they law abiding? And she said, look, let’s be clear. We’re not talking about ticky-tacky laws, like speeding, and she said the dividing line should be essentially misdemeanor versus felony level. Conduct, which is already reflected in federal law and so then that’s. Deals with law abiding answer the question responsible to compress a lot of argument and this is what most of the argument was about into a very short sentence.

What you said was, in essence, responsibility boils down to whether a given person represents a particular danger. When it comes to owning or using firearms, this could be somebody who’s dangerous because of conduct they’ve engaged in intentionally, such as domestic violence. Or even conduct that’s not culpable, but the person is nevertheless represents an unusual or specific, a special hazard like a child or somebody who is mentally unstable.

There’s no culpability there, but that person is still dangerous when it comes to the possession of firearms. And that’s really what the argument focused on was that point.

Joe Selvaggi: I see. as you say, a child or a mentally ill person ought not to have a gun, not because they’ve committed a crime, but it’s a predictive judgment, which is to say we can anticipate from past action or from their behavior that were they to have a gun, it would not be used responsibly.

Okay, so, that seems to make sense we have. You and I talked about there’s not much precedent for that, essentially, rightly there’s very few groups that you can essentially say. Are not responsible enough for fundamental rights. So, let’s focus on the other part, which is okay.

How confident do we want to be in our judgment, meaning you and I had concerns that someone could wave a hand and say, everybody who’s goes five hours of the speed limit is de facto irresponsible. There was an element there in the argument that I thought was really important for me to hear, which is.

We were worried about process, and she really dialed in on the fact that this isn’t just some administrative stroke of a pen, but rather a judge had to contemplate the facts in the case and had to say, you know what, I’m not going to generalize about all domestic abuses, but this guy seems to be irresponsible.

So, I will deem him to be, the judgment, the process for this guy was sufficiently thorough to take his second amendment rights away. Is that fair? Or how do you see it? 

Clark Neily: Yeah, I think she was extremely successful in painting an essentially fictitious picture of the way that domestic violence restraining orders are issued. and I say that after having spoken with many, family law practitioners, the vast majority of whom have said, look, when it comes to issuing domestic violence restraining order, judges will tend to issue those, At the drop of a hat without making significant factual findings on in this case, actually, below, we don’t have a lot of information about how this domestic violence restraining order was issued, but we do know that it was an agreed order.

In other words, didn’t even resist. There was no adversarial process. He just went into court and said, yep, that’s fine. I’ll stipulate to all these things. There was no specific factual finding. In other words, the judge didn’t make a finding that on this date, you engage in this particular violent act.

There was just what we lawyers call, boilerplate. There was just these recitations. Oh, there’s been an act of family violence in the past, and there’s likely to be another one in the future. And you don’t have to have been around the block too many times to recognize boilerplate when you see it in a legal document. And that’s really what there was in this case. 

Joe Selvaggi: Can I push back a little bit? Because I think the Supremes did address this again. I’m sorry if I can’t remember which did. I think it might have been Alito that said, look, if it is a judge, great. We want judges to be involved in the process, but what if it’s just a rubber stamp as you characterize it, then it is effectively, though it is a judge is involved, he’s not really using his judgment.

That’s a rubber stamp. She retorted with this statistical assertion that. There is X number, I think it was like 550 domestic order requests and only 200 granted or something like that, which suggests. 550 people wanted it and only 200 got it. Somebody’s got discretion and they say you get it and you don’t. It isn’t a rubber stamp. What would you say to that?

Clark Neily: Yeah, that’s right. So, she pushed back and noted that only about 55 percent of applications in Tarrant County, Texas result in the issuance of a domestic violence restraining order. Now, we don’t know why that is, right? We don’t know, for example, if the person who filed the application ends up withdrawing it, maybe they just didn’t pay the relevant fee. Maybe there was something they were supposed to submit along with the application that they failed to do. So, the implication is that in all of those cases, the judge looked at the merits of the case and made a decision, OK, you have not met the standard.

I don’t know that’s true. I’m not know if it’s not true, but I can tell you that there’s a lot of ways that you can dress up a statistic like that. So that if you have 500 applications for domestic violence restraining order, but only 255 or 289, I think was the actual number were issued — that might tell you that 45 percent of those were denied on the merits and that is possibly what happened, but it might also be the case that some significant percentage of the person who initially filed the application withdrew it or didn’t pay the relevant fee or failed to make a necessary showing. So, we just never got a merits determination that is not clear from the record, which way that is.

And certainly, there was a heavy implication that all of those decisions were made on the merits. But I would be very suspicious that was true. and, even in federal criminal prosecutions, for example, the government ends up dismissing voluntarily, dismissing about 8 percent of federal criminal prosecutions after there’s been an indictment.

So, we know that even in very serious proceedings like that, some percentage of cases result in. no conviction for other reasons than that, a decision was made on the merits that the person was innocent. If that makes sense. The other thing that’s important to understand too, is that it’s the argument here, isn’t that.

Every single domestic violence restraining order is handled in a kind of a slap and dash way. The argument instead is that there are a significant number of dynamics that should cause us to be suspicious about how. Meticulous this process really is. So, to take another example in Texas, and in some other states, there’s what we call a one-way fee shifting provision.

And what that means is that the, if let’s say the partner who is accused of having committed domestic violence and against human orders being sought, if they resist, if they go in and try to resist that application and lose. They can be forced to pay attorney’s fees for their partner. But if they win, they don’t get attorney’s fees paid to them.

It only goes in one direction. And you don’t have to be a rocket scientist to see it, a scientist to see that might discourage some people, even if they had meritorious defenses from going into court and asserting those. The other thing too, to keep in mind is to think about the implications of a domestic violence restraining order.

It’s going to order you to not commit an illegal criminal act, or at least an unethical act like stalking against your former partner. what if your attitude is like, look, I’ve never done that. I am never going to do that. I’m not the kind of person that would do that, but I don’t care if you want to issue an order against me saying, don’t do it.

I wasn’t planning on doing it. So fine. I think there’s a reason to be suspicious. essentially how, the level of adversarial in this in these proceedings, it may be highly adversarial. And then the results are highly reliable in some cases. And not adversarial at all, and therefore the results are not reliable at all in other cases.

I’ll leave you one last thing. I mentioned this example earlier, and I think it’s a fair question. If the significance of the issuance of domestic violence restraining order is not just that you would lose your ability to own firearms, but you’d lose your ability to see your children. For whatever, however, long that order was in effect.

With the amount of process that the federal statute at issue here requires be sufficient to sustain the suspension of parental rights. And I think almost certainly the answer is no, because among other things, there’s Supreme Court precedent that indicates that the lower court has to make a finding by clear and convincing evidence that the parent who’s, Parental rights are going to be suspended has, in fact, engaged in some dangerous behavior is likely to engage in some dangerous behavior towards the children.

There is no such requirement before somebody loses their Second Amendment rights. Now, maybe that’s appropriate. Maybe we should make a distinction between gun rights and parental rights, but it’s not obvious that there should be such a distinction. And that really was not a point that was not developed at all during the argument.

Joe Selvaggi: Yeah, I think that would be my immediate response to your sort of rhetorical question, which is if you’re irresponsible with a gun, you should be, the gun rights would be taken away. If you’re irresponsible, you abuse a child, then that would be taken away. You don’t blend it. You don’t have to catch all the dangers for you. Everything’s taken away. Each deserves its own sort of disqualification or, again, but I don’t want to get too far down that, that, line of, reasoning. I want to take a step back. You, we talked about at the top of the show you were in, involved in the Heller case, and that came up and as you mentioned, did the Bruen case.

These are, these both established the right to bear arms as an individual, right and the right to bear arms, as you know, as enshrined in the Constitution. Given how often those were sort of thrown around by both sides and by all justices, did everyone characterize, in your view, did everyone characterize the rulings in those cases fairly? Essentially, have we all moved on and are all the justices on the same song sheet with regard to Heller and Bruen

Clark Neily: That’s a great question. Clearly, one of them is not and whether it’s more than one is not clear. I would say that Justice Jackson made fairly clear through her questioning that she thinks there are real concerns about the  Bruen framework and to perhaps oversimplify, but hopefully not.

Bruen essentially requires judges to look at historical tradition, to see, did they essentially take some somewhat similar approach to gun regulations in the past. In this case, it would be in the late 1700s when the Bill of Rights was ratified, such that we can find some sort of an analogous regulatory scheme from back then.

And Justice Jackson’s pushback was essentially to say, look, they don’t appear to have been particularly concerned about domestic violence at the founding time, and they certainly don’t — there was no tradition of categorically disarming domestic violence offenders back then. So, isn’t that the tradition that we have to import to the present in order to do the historical tradition analysis that  Bruen requires?

And so, I think in some way, she was really trying to hang  Bruen’s analytical framework around the neck of the justices who signed on, the six justices who signed on to the Bruen majority. And I actually think it was a really fair point both Prelogar and some of the other justices had some, I think, reasonable responses for why you didn’t have to do that, go back in time and say, okay, however much they cared about domestic violence back then is how much we have to care about it now. In effect, in the Second Amendment context. But it was, it was a difficult question, I think a fair one.

Joe Selvaggi: I want to characterize impugn her motives, but it may have been almost cynical. Swipe at history and tradition, right? We’re saying we didn’t protect domestic abuse rights. Victims of domestic abuse in 1791. Why should we do it now? Kind of thing. Like if you’re wedded to this concept of precedence, we haven’t taken guns from domestic abusers in the past,therefore, we shouldn’t do it now. I think they spent a lot of time with that. I don’t want to get too far down that line. But would you characterize this as fair? Was she sincere in her argument?

Clark Neily: I wouldn’t presume to say whether it was fair or cynical or serious, but I think it was — in other words, I don’t know what was going on in her head subjectively, but I think it was an entirely fair effort to determine whether the framework that the majority announced in Bruen, fairly applied in this case should compel a ruling in favor of somebody who stands credibly accused of being a domestic violence, offender, and, I think it was a reasonable point to make.

And I think the majority in Bruen, or let me say this, the justices who made up the majority in Bruen are really going to have to back off a little bit. I think on the test that they announced in that case, in order to basically come up with a holding that enables the conviction of this particular offender defendant Rahimi, to be sustained, notwithstanding the fact that if it was 200 years ago, I think it’s very dubious, whether he would even have been, prosecuted and certainly there was no law in the books at the time that would have categorically disarmed him because he’d been the subject of a domestic violence restraining order. That I think that’s somewhat problematic for the majority, in the Bruen case. 

Joe Selvaggi: That would be odd for Justice Brown to be the lone originalist in this ruling and be in the minority. So, looking at denying justice again, we’re pulling back and more abstract. We often hear political claims of politicization of the court and that we have conservatives and liberals.

In listening to the questions, it wasn’t you’re going to mine is a late year. I’m not an attorney. I don’t argue in front of the court, but it did seem to me that the justices all asked fair questions and didn’t seem to have a bias one way or the other. You suggest they all had a bias against Mr. Rahimi, but I couldn’t see any ideological difference in the nature of the questions and the pushback from either side. Did you see a clear political divide on the court? 

Clark Neily: I wouldn’t call it a political divide. If there was a divide, I think it was probably centered around the issue of, in effect, I think the message is sort of, okay, look, we all agree that this is a bad guy, a dangerous person and someone who, who’s, putative Second Amendment rights.

Nobody on this court with a possible exception, I would say maybe Justice Thomas are going to go to bat for in this case. But what about the hypothetical next defendant? What about a defendant who comes before us and makes a credible argument? Hey, look, I never did anything wrong. Yes, a domestic violence restraining order was issued against me, but I was actually the victim.

That was my ex who went to court and got that order for the specific purpose of disarming me to make me. easier to abuse and there’s some arguments in the amicus briefs that is a thing that happens and what I think some of the justices were pretty clearly trying to do is to leave the door open for looking at those kinds of situations on a case by case basis and leaving room to go back and reexamine whether the federal law issue in the Rahimi case while generically it’s okay, under the Second Amendment might violate the Second Amendment as applied to a particular defendant, who.

Essentially stands in a better position to argue. Look, I am not a dangerous person. I am a responsible person and yes, a court issued a domestic violence restraining order against me. But that’s basically because I just chose not to fight it. I didn’t want to get involved. They didn’t want to have to pay my ex’s attorney’s fees.

And I just said, okay, fine. I’m not a violent person. I’m never going to be a violent person. I don’t care if you want to get a restraining order against me. That’s fine by me. I think that some of the justices make clear they want to be able to look at that case fresh if it comes up and some of the justices.

Yes. I would, I get the impression would rather just say, look, this federal law is perfectly fine for all cases at all times. 

Joe Selvaggi: So you’ve anticipated my next and we’re getting close to the end of our time together, my next question, which is, what does this case mean for other, second amendment cases, has our right to own and bear arms been reinforced or threatened?

As you say, this is a case-by-case basis, which I guess. This case helps to define the contours of our rights and where they may be legally taken from us. So, in your view, again, I’m making the assumption because at the outset, you said, I think the court is leaning and was leaning before all arguments towards, or against Mr. Rahimi and towards, taking away his right to, to own a firearm. Let’s assume they go that way. Is the Second Amendment safer or more unsafe in your view? 

Clark Neily: Yeah, it’s a tough question to answer. I think I would say this. The result of this case is likely to be a very narrow ruling, possibly even unanimous, in which the court essentially says that this law as applied to this particular defendant, doesn’t violate the Second Amendment and as a totally generic prospect, we don’t see anything that is categorically problematic with this law, but we leave open the possibility That on a case by case basis, defendants will be able to assert a Second Amendment and or due process challenge to the particular way in which this statute was applied against them.

In other words, if you turn out to be a responsible person, if you turn out to be a law abiding person against whom a meritless domestic violence restraining order was issued, I think that the door will still be open for you to challenge that under the Second Amendment, perhaps also a procedural due process.

Thank you. So, I think it’s going to be a narrow ruling that doesn’t do nearly as much violence to this, the court’s Second Amendment doctrine as might otherwise have been the case because they’re going to write the case. I thought that the opinion will probably be just as, no broader than it needs to be to take down Zachary Rahimi and leave the door open for other potentially meritorious challenges.

Joe Selvaggi: Which is a very nuanced complex answer, which will probably defy the headlines when the case is handed down. Everybody wants something to put on a bumper sticker so they can take to the streets. This isn’t, I think, going to satisfy either side. for our listeners, when will this case be handed down? When we find out the end result?

Clark Neily: The really tough cases they usually hold until the end of the term, which is to say the end of June of next year. I don’t think this is going to be considered a really tough case. They’re making multiple opinions, which tends to stretch things out longer. If I were a betting man, I’d say March or April. 

Joe Selvaggi: That’s good. March or April. Watch this space. I’m not sure we need to cover it again. I just thought, for my money, there’s so much cynicism towards our institutions, particularly now recently, the Supreme Court, I think myself. If you feel that negative cynicism flowing through your veins, take some time, listen to those arguments, listen to how thoughtful our, our justices are and think of how well they are, the arguments are made in front of them and how respectful and how orderly and how thoughtful and smart.

I hope this case, this podcast, helps to restore people’s faith in the judgment, the power, the thoughtfulness of at least this institution. We’ll work on the others later. Let’s hope this works. Thank you for joining me today on Hubwonk today, Clark. This has been great. It’s good to have you back. I really appreciate you coming in before and after to discuss a pretty complex issue. Thank you. 

Clark Neily: It’s been my pleasure. Thanks a lot for having me back.

Joe Selvaggi: This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribed to Hubwonk on your iTunes Podcatcher. It would make it easier for others to find Hubwonk if you offer a five-star rating or a favorable review. We’re always grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re welcome to email me at Please join me next week for a new episode of Hubwonk.

Joe Selvaggi engages in a conversation with constitutional scholar Attorney Clark Neily to explore the oral arguments presented in the US Supreme Court case USA v Rahimi. The discussion delves into the intricate examination of behavioral history and the legal processes involved in restricting an individual from owning a firearm.


Clark Neily is senior vice president for legal studies at the Cato Institute. His areas of interest include constitutional law, over-criminalization, coercive plea bargaining, police accountability, and gun rights. Before joining Cato in 2017, Neily was a senior attorney and constitutional litigator at the Institute for Justice and director of the Institute’s Center for Judicial Engagement. Neily is an adjunct professor at George Mason’s Antonin Scalia School of Law, where he teaches constitutional litigation and public interest law. He served as co- counsel in District of Columbia v. Heller, in which the Supreme Court held that the Second Amendment protects an individual’s right to own a gun.

Neily is the author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. He also contributed a chapter to’s Visions of Liberty. Neily received a BA in Plan II (with concentrations in philosophy and Russian) from the University of Texas at Austin, and he received his law degree from the University of Texas, where he was chief articles editor of the Texas Law Review.