Federal Firearm Forfeiture: SCOTUS Considers Gun Rights and Due Process

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Joe Selvaggi: [00:00:00] This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. In November, the U.S. Supreme Court will hear oral arguments in the case of USA v. Rahimi. The defendant, Mr. Rahimi, is challenging a federal law that prohibits those with domestic abuse restraining orders from owning a firearm.

Though the defendant has committed gun-related crimes in his past, it was, in fact, an uncontested civil restraining order that ultimately caused Mr. Rahimi’s legal forfeiture of his right to own a firearm. While the court will certainly weigh the rights and concerns of domestic abuse victims, the nine justices will need to grapple with balancing the protection of abuse victims with the obligation to provide all defendants with due process and appropriate penalties.

How can the court find legal precedence for domestic abuse prosecution from case laws that have seldom recognized such crimes? And if the courts hold that armed self-defense is a fundamental right, what are [00:01:00] the implied thresholds for crime severity and due process when taking such a right? My guest today is Clark Neily, Senior Vice President for Legal Studies at the Cato Institute, adjunct professor of George Mason’s Antonin Scalia School of Law, and past co-counsel in the U.S. Supreme Court case, District of Columbia v. Heller. Attorney Neily will discuss the facts and issues the court will consider in the U.S. v. Rahimi case. and share with us his views on whether the current federal laws restricting firearm ownership for those accused of domestic violence will pass constitutional muster.

We will discuss how the court’s demonstrated recognition of the fundamental right to keep and bear arms will affect the writing and enforcement of gun ownership laws in the future. When I return, I’ll be joined by legal scholar, attorney Clark Neily. Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi and I’m now pleased to be joined by adjunct professor at George Mason Antonin Scalia School of Law, Clark Neily.[00:02:00] 

Welcome to Hubwonk, Clark. Great to be with you. Thanks. All right. We’re going to be talking about a Supreme Court case that’s upcoming. The oral arguments are in our future. The case is USA v. Rahimi. and we’re talking about a Second Amendment and our constitutional right to bear arms, what the limits are, if those rights are to be taken away, what the procedures and process are for those.

So I think it’s a very interesting case because it bumps up against a lot of absolutist views, which are a lot of people think we have an absolute right to bear arms. Others say we have an absolute right to safety and this case I think explores the contours of both those arguments and see if there’s some way to reconcile those, that conflict.

So let’s start at the beginning. We’re going to be talking about the Second Amendment, but before we go in there, we’re not all law professors, law, scholars, legal scholars on this podcast. Let’s start with the beginning. What does the Second Amendment say? And, let’s also in there, feature some of the more recent Supreme Court cases, specifically Heller.

How does the Supreme, how does the Second Amendment guarantee our [00:03:00] right to bear arms? And what has the Supreme Court said recently? 

Clark Neily: Right. So, the Second Amendment reads as follows: “A well regulated militia being necessary to the security of a free state, comma, the right of the people to keep and bear arms shall not be infringed.”

And for over 200 years, we never got a definitive interpretation from the U.S. Supreme Court. and during that time, there emerged essentially two perspectives on the meaning of the Second Amendment. One is that it protects some kind of a collective right or a state’s right to arm their militias. That’s not really a right that belongs to or could be enforced by an individual.

And then the other school of thought that emerged is that it’s, and it protects an individual right like virtually all of the rest of the Bill of Rights, and that under the Second Amendment an individual has a right of some scope, all rights are limited, and so it shows the Second Amendment, to own a gun.

And so in 2008, in the Heller case, that’s the case that I and two of my co-counsel helped bring to the Supreme Court, the Supreme Court, for the first time, [00:04:00] took a definitive position on the meaning of the Second Amendment and embraced the so called individual rights interpretation. 

Joe Selvaggi: We sort of in those two camps, we dispense with the right to the militia, which is to me, it seems like a curious assertion whereby you have a fundamental right, but it’s regulated by the state.

So it’s really not a fundamental right if the militia is informed, you have no right that doesn’t seem to be intellectually consistent but Heller determined it was an individual right and then going a little that was about 15 years ago you were the co-counsel there. And then as recently as two years ago, we often hear this word right to, keep and bear arms, which is to actually use that right to, to hold a weapon.

You bear it. The recent Bruen case cast some color on this debate. What did the Bruen case say? 

Clark Neily: Right. So all the Heller case from 2008 held was that there is an individual right to own a gun at home for self-defense that leaves open a large number of other questions, including whether the Second Amendment or more precisely the right to keep and bear [00:05:00] arms because it’s protected both by the Second Amendment and the Fourteenth Amendment, depending on whether it’s a state or a federal law.

But putting that aside, the question is whether you have a right to carry a gun outside the home. and lower courts disagreed with that among each other about that in the wake of Heller. and so just last year, the Supreme Court took up a case, out of New York, which is one of a small handful of states that, when it comes to permitting people, issuing permits to carry a gun outside the home, instead of a purely objective approach, like we take with a driver’s license, where if you meet certain requirements, they have to give you the license.

New York, California, Massachusetts and a handful of other states had what’s called a discretionary permitting system where you actually have to go further and persuade some local official — could be a judge could be a police chief or somebody else — that you in particular have a special need to carry a gun outside the home.

And unsurprisingly, the Supreme Court struck that down because there really is no history. And even at present, [00:06:00] there’s just no other constitutional right where you only get to exercise it. If you can show that you really need to, or if you can persuade the government you have some special prerogative.

And the Supreme Court in the Bruen case last year struck down New York’s discretionary permitting system and basically held two things. First, there is a constitutional right to carry arms outside the home and second, while the state can require a permit to do so, that permit has to be issued on the basis of objective criteria and not subjective ones the way that New York and California were doing.

Joe Selvaggi: So the government can’t decide which rights it wants to allow you to use, that, that’s interesting. So I just want to, get a little more abstract before we go deep into the Rahimi case and, and acknowledge that I’m sure for a lot of our listeners, they’re divided by the, this view of gun ownership, this right enshrined in the constitution as being some somewhat anachronistic, perhaps the right to bear arms may have been important in the 18th century, but now it’s, completely outdated.

Similarly, again, I’m talking with you from the [00:07:00] middle of Boston, perhaps in the wide expanses of this great country where You know, the police may be an hour away, obviously, you can’t imagine living life without the means to protect yourself. So, this is deeply divisive. From your view as a legal scholar, do you think people’s opinion about the prudential wisdom of owning or permitting ordinary citizens to carry a gun, does that influence scholars and those people who wrestle with this issue so much that it almost makes it impossible to have a clean, objective debate?

Clark Neily: I think it does influence people to some extent, but it’s really, I think we have to be careful not to suppose that there’s anything new about this. I’ll give you one example. When the Supreme Court held in the Miranda case that you have a right to be advised about your rights and a right to remain silent and a right to request a lawyer, there was a tremendous outcry about that, including from, police and the pro-law enforcement community and essentially people were like, Oh, We’re gonna be, failing to prosecute or allowing [00:08:00] to escape conviction. People have committed really serious crimes.

Now, maybe that’s happened, we don’t know. I think really for sure. But the question is, does the Constitution, properly understood, require this or does it not? An even more stark example would be the fact that police used to routinely beat confessions out of suspects, in many southern states in Chicago and other big cities.

To a fairly high degree of certainty that enabled them to identify some criminals and to solve some crimes that they would not otherwise have been able to solve. I mean, if you know where the bloody knife is or the body that’s buried somewhere, you probably had something to do with it. So we are, I think, as a country hopefully all of us used to the idea that we restrict the government in certain ways that could lead to bad outcomes.

Maybe we have released a murderer before who we otherwise could have kept locked up. because of the application of some rule of criminal procedure that’s in the Bill of Rights. I see the Second Amendment very much the same way and I would say two things about it. [00:09:00] There is a fundamental natural right of self-defense that we all possess.

And guess what? It is nowhere mentioned in the text of the Constitution. But when somebody, for example, argues that they acted in self-defense and they want to be able to argue that to a jury in a homicide prosecution, guess what? They get to do that as long as the evidence supports it because we have a fundamental right of self-defense.

It has even come up in the context of people who have been attacked, for example, or who claim they’ve been attacked by a wild animal. a bear, a mountain lion or a domestic animal like a dog and they have shot it unlawfully. And then they’ll argue, well, listen, I had a right to defend myself. And guess what?

The courts say, yeah, you do. So, I actually don’t even think we need a Second Amendment to protect the right to own a gun because, the fundamental right of self-defense implies, and I would say strongly implies a fundamental right of effective self-defense, which means you have a right to pick up a weapon.

Can you imagine defending yourself against a bear, by the way, with something other than a firearm is [00:10:00] preposterous. So, I’m very comfortable with the idea that there is a natural right of effective self-defense and all the Second Amendment really does is acknowledge that there’s that right, entails right to be armed.

But I think that’s really in some way sort of an afterthought that is inherent every bit as much as inherent as your right of free speech or your right to worship as you please. Those are not dependent on the existence of the First Amendment. They are mentioned in the First Amendment, but for two years after the ratification of the Constitution in 1789, we didn’t have a Bill of Rights.

Guess what? You still had a right to free speech, you still had a right to worship as you please, and you still had a right of effective self-defense before the Bill of Rights went into effect. 

Joe Selvaggi: And to tie the two remarks you made there, which is you, I think we’re asserting that your right to due process with your being Miranda eyes is essential. Essentially, it was codified with Miranda, but essentially nobody believes that you should be locked up without being apprised of your rights as an individual, right? you, we believe in process as much as, [00:11:00] end results. In fact, more than that, if a few bad guys get away because they weren’t properly treated by the law, then, we’re okay with that because fundamentally you can’t abrogate your right to due process, right? 

Clark Neily: Yeah, that’s right. And it’s more than just a right of due process. I mean, I don’t want to be pedantic, but it actually says in the Sixth Amendment that you have a right to be informed of the charges against you.

Now, Miranda was a stretch from there. It was another step forward saying you have a right to be informed of your rights. But this is not unusual. The Constitution is a very short and concise document. In some places, it is very specific, like that you have to be at least 35 years old to be president.

In other places, it’s more open-ended, where it says, for example, that nobody can be deprived of life, liberty, or property without due process of law, but then doesn’t spell out exactly what that means. And so some of these rights that the Supreme Court has interpreted, like the right to be advised of your right to remain silent, which is of course a Fifth Amendment right, is essentially the Supreme Court trying to work out.

[00:12:00] Okay. How should we go about applying? And making these rights actually effective in the real world. And there will be according, the Supreme Court’s view is essentially that there wouldn’t be much point in having a Fifth Amendment right not to incriminate yourself if the government didn’t advise you of that when they start asking you incriminating questions. I think that’s pretty sound reasoning. 

Joe Selvaggi: Indeed, and this is just, I’m enjoying the conversation and, again, our audience probably knows that the Bill of Rights was a compromise between the Federalists and Anti-Federalists and in a sense, the Federalists thought it was redundant, of course we didn’t need these rights, it’s implied, but of course there was an assurance, OK, we shouldn’t do these things, but just in case, let’s write it down. But again, we could have a wonderful conversation about this. I want to focus on our topic, which is Rahimi. And this isn’t just a superfluous, intellectual, debate here. Rahimi very heavily relies on process or what is required of due process. But let’s start at the beginning. The plaintiff is a or is he the defendant? yeah. He’s not a very good character. He’s an unsavory [00:13:00] character, but so let’s get the facts in the case. Mr. Rahimi, what, who is he and what has he done? 

Clark Neily: Yeah, so Zaki Rahimi is a resident of North Texas near where I went to high school. I went to high school in Plano, Texas. and, this guy Rahimi, is alleged — now it’s important to be clear — most of the facts that we think we know about him are still just allegations, but let’s be clear. They seem pretty plausible, that he’s engaged in a number of violent acts with a gun, including shooting at another motorist after a traffic accident, shooting at a drive thru window when the restaurant declined his friend’s credit card, and threatening a former girlfriend, which is ultimately sort of what set in motion the chain of events that led to his prosecution for unlawfully possessing firearms while being subject to a domestic violence protection order. But the bottom line is he certainly does appear to be a rather unsavory character, who I think most people, me included, would not think should be out [00:14:00] there, running around with a gun, and perhaps not running around at all. It may well be that he should be incarcerated for some period of time.

But as you and I discussed just a moment ago, it matters tremendously how the government goes about effectuating a policy like disarming people who are believed to have engaged in domestic violence. 

Joe Selvaggi: He was engaged in domestic violence. Before we talk about how that law which sort of disempowered Mr. Rahimi, or it took away his right to bear arms. How does it — what is the procedure for, give us an example, besides guns, when can the state take away, of course, your liberty, if you, you commit a crime, you wind up in jail, you can’t go anywhere. What are some of the other examples of where the state can take away a fundamental, constitutional right?

Clark Neily: It’s extremely limited. and, one example would be, and just an illustration of how seriously the courts take, people’s fundamental rights. Sometimes you’ll have, for example, somebody who’s been convicted of, of child pornography or some kind of a sex crime, involving children, which [00:15:00] is of course one of the most horrific acts that a person can commit.

And sometimes the government will ask, because of that person’s past conduct, that they be ordered to no longer access the internet. Maybe because they’ve been trading images or something like that. That’s not something that’s just done routinely. Every time somebody gets caught, for example, with child pornography on their computer, there is a very high standard that the government has to meet in order to get a court order saying somebody no longer has access to the Internet.

Another example would be the termination of parental rights when the state steps in and says that you don’t have custody of your children anymore. Perhaps even you don’t get to visit with your children, particularly unsupervised, as we mentioned in the amicus brief that we filed in the Rahimi case.

The Supreme Court has stated that in order to terminate somebody’s parental rights, there has to be a demonstration by clear and convincing evidence, which is higher than a preponderance and a little bit lower than beyond reasonable doubt. The government has to prove by clear and convincing evidence that whatever the statutory elements are to [00:16:00] terminate a parental relationship, have been met.

The short answer is that the courts are extremely reluctant to, in effect, allow the government to rescind or even to temporarily suspend somebody’s ability to exercise a fundamental constitutional right. and that’s exactly what’s at issue in this Rahimi case, because there’s a federal law, 18 U.S. C. 922 G8, that provides that anybody who is the subject of a domestic violence restraining order, is not permitted to own firearms. And it is a very serious federal felony for anyone to continue to possess firearms while they are subject to such an order. 

Joe Selvaggi: So, I think you anticipated my next question. I said, we’ve already established the fundamental right to bear arms. That’s been, it’s written in the constitution and supported by recent Supreme Court decisions, and also that you need to, have substantial, process before any of your fundamental rights are removed. What was it that Mr. Rahimi had done or what was it that separated him from his right to bear arms? What you’re saying is, he did something, how much did he know about it, what kind of due [00:17:00] process was there? Again, as you say, in other rights, you get a huge process before any such rights are removed. What was Mr. Rahimi’s experience? 

Clark Neily: It’s important to point this out. We actually have no idea of what he did or didn’t do. He is alleged to engaged and have engaged in some active domestic violence, but that was never proven because when his ex went to apply for a domestic violence protection order, he simply just conceded.

He agreed to it. and so, it was issued on the basis of consent. He did not resist it. And the record doesn’t contain any findings, in terms of what he did or didn’t do. So, we really don’t know. And now, again, there’s some very serious allegations about other things that he’s done. So, we can, I think, fairly surmise that he probably did engage in some active domestic violence, but we don’t know that for a fact.

 What triggered his dispossession in this case was simply the issuance of that order. So, he had an ex who went and applied for a domestic violence restraining order. He was given notice of the fact that the application had been [00:18:00] filed in court. By the way, the law does not require you to be notified that if the order is entered, you will no longer be able to possess firearms.

And in many cases of prosecutions under this law, as we again pointed out in our amicus brief, people are often quite surprised to find out that one of the effects of domestic violence restraining order will be to dispossess them of their firearms. But that’s all it takes. So just if one of these orders has been issued against you, whether you did anything or not, whether you could have, opposed the motion, but you just you went along with the application because your mindset was like, look, I didn’t do anything, and if the court wants to issue an order that says that I should continue not to do anything, thank you. Fine. I don’t have any reason to go down into the courthouse and get into a big fight over that. So I’m not saying that’s what happened here. We don’t know for sure what he did or didn’t do.

What we do know is that the way the federal law is written, is that essentially any process will suffice as long as [00:19:00] the, the subject of the domestic violence restraining order has given notice that application has been filed and that someone is seeking that or that’s really all it takes.

And no matter how slapdash and analytically sloppy the remainder of that process is it doesn’t matter, once the domestic violence restraining order issues, the subject that order is immediately dispossessed or, more precisely, in that moment it becomes unlawful and becomes a federal felony for that person to continue to possess a firearm.

Joe Selvaggi: So whereas the headlines say a domestic abuser is, had his rights taken away, it’s not been determined in any sort of legal process that he’s a domestic abuser. It’s just been a restraining order in which he said, okay, look, why fight it? I didn’t do anything. but at no point really was he informed about the implications of this determination. So again, getting back. 

Clark Neily: I’m sorry, I didn’t mean to interrupt — as best we can tell. But again, the record is so sparse. We just don’t know what happened for sure. 

Joe Selvaggi: So, the police come in on something else unrelated, they [00:20:00] find two weapons in his home, and they say, look, these shouldn’t be here because you don’t have the right to own a weapon. I guess that may have been news to him, but of course, now he’s in big trouble, and he both goes to court, it was a public defender, I believe, and asked to say, okay, look, how did this happen and how can I appeal it? Say more, okay, about the first steps of Mr. Rahimi’s appeal against sort of having had this fundamental right taken away.

Clark Neily: Right. So that’s all correct. Rahimi is prosecuted by the federal government for violating this federal law, 922 G8, that makes it a crime to possess a firearm when you are subject to a domestic violence restraining order. He is represented by federal public defenders, in the Fort Worth area, who are very good. I’ve been in touch with them. They filed an excellent brief, and they raised as one of his defenses, the constitutionality or more precisely the unconstitutionality of that law, and they argued that under the Supreme Court’s most recent interpretation of the Second Amendment in the Bruen case that we discussed a moment ago that came down in June of 2022, the domestic violence restraining order part of 922 G8 is unconstitutional because there’s no historical analog to that law.

And that’s what the Bruen case. That’s what’s new about this Bruen case that came down last year is that in order to, in effect, demonstrate the constitutionality of a law that has been challenged. The government has to identify some fairly analogous regulatory scheme, some fairly analogous law, from the relevant time period. And the Supreme Court actually hasn’t told us what the relevant time period is, but it looks like it’s going to be either 1791, when the Bill of Rights was ratified, or 1868, when the Fourteenth Amendment was ratified, which is the one that applies against states. Now this is a Second Amendment case because it’s a federal law.

The Second Amendment applies directly to the federal government, so most likely the relevant time period is 1791, and there really wasn’t anything analogous to this. And [00:22:00] if that matters, and that’s going to be a big dispute between the government and Rahimi’s lawyers, but if it matters, then, he’s got the better of that argument.

There is no analogous law from 1791 that looks anything remotely like this. Now, I have my own concern, or my own, thoughts about whether the Supreme Court has got the analytical framework correct, but that’s the analytical framework in Bruen, and if they apply it here, this law could be in real trouble.

Joe Selvaggi: So, I can already hear people listening to this podcast objecting to your assertion, which is again, getting back to the Second Amendment itself. It may be anachronistic if we’re looking for analogous precedent laws that did take away people’s rights for let’s say domestic abuse. And we all know, unfortunately, again, this is not we’re not supportive of this notion.

But in the past, it wasn’t the crime it is now to abuse your spouse or whoever Is in your life. That was perhaps a matter of course, whereas now we recognize is a horrible crime. If we’re appealing to history to look, show us the way here and history didn’t [00:23:00] regard such abuse as a terrible thing, how can we reconcile this sort of appeal to the past?

Clark Neily: That’s a great point. I think that really is one of the concerns of looking back to history. What, like, on one level, why would you look back at a time, when women were barely considered to be citizens at all? They certainly weren’t considered to have all of the rights of male citizens. They were also, very much seen as, lesser people and, I think it’s to some extent overstated how cavalier people were about domestic abuse during the founding and there’s actually a couple of really good amicus briefs that have been filed in Rahimi, that, that try to make the point actually you know what they took this more seriously back then than you might think.

But I think it’s undisputed. Or should be undisputed that they were not as serious about things like domestic violence as we are. And of course, this is a time when slavery was widely practiced, not only in America, but throughout the world. and so it’s self-evident that it’s not the most enlightened time.

They were enlightened in some ways, but not in others. [00:24:00] And so I think that’s a genuine concern. Why would we go back and look at that time in world history and say, okay, let’s just update whatever their mindset was, and then that’ll be sort of the framework that we apply today.

So, I think your question is well taken. On the other hand, that is the standard, that is the framework that the Supreme Court has articulated. And you can, I’ve litigated cases in federal court for most of my career. And, if your plan is to go into a court and say, I should win because the Supreme Court was wrong. Well, good luck with that. Yeah. 

Joe Selvaggi: So again, let’s do that. Let’s go there and say, okay, put on your other hat and. And steel man on the other side, I don’t know what the right term would be, but let’s say we go in there and we know, let’s say history is on our side and the Supreme Court doesn’t like to say it was wrong. What would be the effective case that the federal government would make to say, look, we don’t want spouses and partners to be abused, particularly with a gun. We ought not to arm domestic abusers. What’s their best case as you see it?

Clark Neily: Yeah, that’s a great point. Great question. So [00:25:00] the best case, I think, for the federal government in this, Rahimi prosecution is to essentially, say to take advantage of something that the Supreme Court said in Bruen that the government can do in these cases, which to is engaged in what’s called analogical reasoning, which simply means you don’t have to go back and find an exact duplicate of the law at issue today.

You need to go back and find one that is sufficiently analogous.and what the court said in Bruen, what the majority opinion said is that with respect to problems that are somewhat Novel, let’s say. And, a great example would be hijacking an airplane, right? That’s not something that would have been an issue in 1791, obviously.

And so, you don’t have to have a really closely analogous law in order to uphold the federal ban on bringing a firearm onto an airplane. On the other hand, if the problem at issue in the case was something that was known and being dealt with at the time, [00:26:00] in this case, the time of the Founding, then you there needs to be a much tighter relationship.

In other words, the law that you go back and point to is being analogous from 1791 needs to look a lot like the current law, and I think that’s, the major opportunity government has here is to say, look, yeah, they were aware of domestic violence back then, and to some extent they cared about it, but not really.

And so, we should be able to take advantage of this approach where it’s not. Yeah. It’s we can treat it as a relatively modern problem. That would be domestic violence in the sense that we’ve just recently gotten appropriately seriously serious about it, or maybe we haven’t even yet, but we’ve gotten more serious about it.

And what we do, then, is we don’t have to go back and find a law that specifically disarmed domestic abusers back in the late 18th century. We can just look at laws that disarm dangerous people, of various kinds. And that was a concern they had back then. So, we just update that and say, he doesn’t have to be dangerous in exactly the same way that they cared about back then.

But they did care about disarming at least some [00:27:00] dangerous people back then. And that’s the relevant analogy. Because guess what? We care about disarming dangerous people today. And we now realize. In a way that perhaps they didn’t back then that a domestic abuser is a genuinely dangerous person who really ought to be disarmed, that I think is the government’s strongest case.

Joe Selvaggi: Well, again, I have a couple of concerns about that, which is when you use a term like dangerous, to me, it sounds like a slippery slope, from being a murderer  is clearly a dangerous to someone who let’s say jaywalks might be dangerous to people as well. We don’t want to be cavalier about taking away fundamental rights, but I want, I don’t want to dwell on that because the slippery slope is, there’s no way to, I’m sure you don’t have a bright line there.

Neither does anyone else. And that’s my beef, but what about the due process, right? You know, okay, like you’ve got the law, you, let’s say domestic abusers ought not to have guns, but he didn’t face a judge. He didn’t face a jury. He wasn’t even informed. It’s like with a wave of a hand, his fundamental right, that to me is as important as the ability to take the right away with due process, with no due process, what the heck do we have? Right. [00:28:00] 

Clark Neily: Yeah, that’s exactly right. And that really was the focus of the amicus brief that I drafted for Cato. And I think one way to maybe help people appreciate just what an important concern this is, would be with the following illustration.

You can imagine a law, a federal law that says that anyone who has been accused of domestic violence on social media, Twitter, Instagram, whatever. immediately loses their ability to own a gun. It becomes a crime from that point. I think almost anybody could look at that and say, well, wait a minute, that’s just an allegation.

That’s not a sufficient basis for disarming somebody and making it a crime for them to own firearms. At the other end of the spectrum, you could have a federal law that says that anybody who has been convicted after a jury trial at which they were represented by counsel and received notice of all of the implications of what would happen if they were convicted, that person shall be dispossessed.

Well, that’s the other end of the due process spectrum. And I can’t imagine anybody, thinking, that’s an insufficient amount of process because guess what? That’s all the process that we have to [00:29:00] offer. So then the question becomes, what about this actual law, the actual text of 922 G8?

Where does it fall on that spectrum? Is it closer to the anybody who’s been accused of domestic violence loses their right to own a gun, or is it closer to anybody who’s been convicted after a jury trial at which they were represented, counsel, et cetera, et cetera. In my judgment, unfortunately it’s much closer to the first one.

And the process described in the federal law at issue in this case, the floor that it establishes for the amount of process that has to be built in, to, to the, The procedure by which a domestic violence restraining order is issued. It’s really bare bones, and it allows people to be dispossessed after some of the most slapdash, one-sided, nonreliable processes that you can imagine, perhaps including the one that issue in this very case, and there’s no real assurance that the person who you are now going to dispossess actually did anything wrong or represents any kind of a threat to the other person.

Maybe they do. Thank you. But maybe they don’t. [00:30:00] If we had real confidence about the probability that everybody who’s subject to such an order really is a danger, we’d be having a whole different discussion, but not the way this law is written. It doesn’t get the job done in my judgment. 

Joe Selvaggi: So, you’ve argued, in front of the Supreme Court, now they’re going to sit there and consider this case, it’s a single case, and they’ve got a law that, as you say, really, is, doesn’t offer much in the way of, precedence or, process, procedures. So, what is your choice? Is there, do they, thumbs up or down, when the decision they say, okay, let’s throw this out, the headlines I’m sure we’ll read believes domestic abusers should be well armed or something like this, but the reality, the sober analysis would be that, the court, if it strikes this Rahimi, will that be an imperative then for the Congress then to write a better 922 G8 law that says okay, you can lose, you know, domestic abusers can lose their right to bear arms, but there has to be sufficient process and this is that process. Is that what we’re looking at here? [00:31:00] 

Clark Neily: We could be looking at a couple things. So, as we mentioned in our brief, this law was enacted, this law being 9 22 G8, the domestic violence restraining order. One, it was enacted in 1994, a full 14 years before anybody, or before the Supreme Court held that the Second Amendment protected individual rights. So, when Congress wrote this law, the perception on the part of anybody who was staying current with the court’s Second Amendment jurisprudence is in effect, there’s nothing at stake here. The Supreme Court, well, the Supreme Court has not weighed in yet, and all of the lower courts have said the Second Amendment effectively doesn’t mean anything.

And so, in a sense, this law was drafted by a legislative body that didn’t think that it had to take at all seriously the essence of the right at stake here, which is the right of somebody to own guns. And that really is reflected, I think, in the text of this provision. It looks like it was written by a body that didn’t think it had to really care too much or accord any significant weight to the right to keep their arms. I wonder what could happen. We’re looking at a kind of a potential fork here in terms of what the Supreme Court could do. On the one hand, what the court could do is it could say, well, Mr. Rahimi has challenged this law facially. That means what he’s argued is that this law is so badly written, and it contains such fundamental defects that it really can’t be constitutionally applied to anybody, and it has to be just struck down completely. What the court could say essentially as well, you are, we’re not going to let you challenge the law on behalf of everybody.

We’re just going to ask whether your constitutional rights were violated in the particular way that this law was applied to you. And what you did, sir, was you entered into an agreed, protective order with your ex, which means that you in effect admitted that you were a bad guy or that you’ve done some bad things.

And you personally ambit of this federal law through your own agreement not to contest the application for the domestic violence restraining order. So, you brought this on yourself, and your constitutional rights have not been violated. I wouldn’t find that very satisfactory. I think that would be a little bit, fast and loose. [00:33:00] 

But the Supreme Court gets to do what the Supreme Court wants to do because they’re the highest court in the land. Now, I think a more principled approach would be to say that the government in this case, when they apply, this is called a cert petition, where you apply to have the Supreme Court review what the lower court did.

In this case, the Fifth Circuit Court of Appeals struck down the law and said it was facially unconstitutional, can’t be applied constitutionally to anybody. When the government took this case up to the U. S. Supreme Court, that’s the way they wrote their cert petition. They said the question in this case is whether this law is facially unconstitutional.

I think the court should take that at face value, so to speak, and say, Yeah, that’s the issue that’s in front of us. This law as you said, Joe doesn’t have a real historical analog has very serious procedural due process problems. Oh, and guess what, we didn’t talk about this yet. But also, it’s not all clear why I’m regulating who can own a gun or specifically taking guns away from domestic violence committers [00:34:00] people who allegedly committed domestic violence. Why is that even any of the federal government’s business? The federal government doesn’t have any general police power. They only have the power to regulate commerce among the states and other enumerated powers, none of which plausibly relates to protecting the interests of victims of domestic violence.

As important as that is, it just isn’t among the enumerated powers. Of the federal government. So, this provision that’s an issue in the Rahimi case is just got a plethora of very serious constitutional problems. And I think if the Supreme Court approaches the case straight on and says if the question is whether this law is facially unconstitutional, the answer is definitely yes.

And Congress, guess what? Time to go back and rewrite it. There’s a very important goal that you’re trying to advance here. You’ve got to do it consistent with the Constitution. So try again. 

Joe Selvaggi: So essentially after, Heller and then Bruen, we’re living in a new world where the Second Amendment actually matters, that we have this right, and you can’t run roughshod over a fundamental right, so that all those laws that [00:35:00] sort of considered it, dead letter, now must be rewritten to take more seriously this, imperative to recognize a right and therefore be more, more specific about the criteria, above which you would have to, have your rights taken away. Right? Essentially, this is a new world where old laws may not apply because they did not contemplate the power of the Second Amendment. 

Clark Neily: I think that’s right. not necessarily every law. I think that there are some laws that are stronger for various reasons than others, but I’ll just give you a couple of examples of ones that I think are going to be in real trouble.

And that is, there’s another provision in the same statute that makes it a crime for an unlawful user of controlled substances to own a gun. Now, what does that mean? Who’s an unlawful user of which controlled substances? The second question is easier because we know from federal law what constitutes a controlled substance. But guess what? This includes marijuana. Half the states have legalized marijuana in some form or another, but it’s still illegal under federal law. That means if you use marijuana it is technically illegal for you to own a gun. Now, you can drink all you want. That’s fine. If your preferred intoxicant is alcohol, you’re good to go.

But if it happens to be a not particularly harmless plant with THC in it, then you, it’s illegal for you to own a gun. And then also there’s another provision the so-called felon in possession provision, which is a little bit of a misnomer more precisely. The law says that anyone who has been convicted of a crime for which the punishment could have been more than one year, is dispossessed for the rest of their life.

Now, back in the founding era, felonies were serious, right? They were all serious. There were things like murder, arson, rape, mayhem, rebellion, treason. But we’ve so trivialized the concept of what it means to be a felony or to commit a crime for which the punishment could be more than a year.

There’s actually a case that has arrived at the Supreme Court. They haven’t decided whether to take it or not, but it’s out of Pennsylvania where some guy pled [00:37:00] guilty to misrepresenting his income on an application for state food stamps in 1995. His wife wrote their application for the food stamps and said that he wasn’t earning any money.

And it turned out he was mowing some yards and he got convicted, under a statute in Pennsylvania that was technically a misdemeanor, but the punishment was up to five years. So even though he got probation, his conviction triggered this federal law and he’s dispossessed for the rest of his life.

Now the Third Circuit Court of Appeals sitting en banc, that means the whole court, said nope, that is unconstitutional. Not the entire law, but the application of that law to this particular guy, his name is Range, R A N G E, is unconstitutional, and the U. S. government has asked the Supreme Court to review that case as well.

So, all of this is on a direct path to the Supreme Court, and it’ll be very interesting to see what they do because there have been some extraordinarily unjust applications of these laws to people who are not plausibly any more dangerous than the rest of us. 

Joe Selvaggi: Yeah, this case makes some strange [00:38:00] bedfellows.

I don’t want to bring up current events, but clearly the president is no friend of the Second Amendment, but his son effectively is in trouble for being a known drug user and applying for a gun. So, he’s run afoul of this law and is going to ironically make the case. That, uh, that you are making, which is, it’s a fundamental right that drug use may not forfeit that right, so again, this will be thrilled to hear this again, regardless of where you stand on your views on guns.

This makes for an interesting intellectual debate. It allows us to analyze the essence of our Constitution and the process and how we contemplate its power over us. And which has lasted, low, these 270 odd years. Um, so when does the court hear the oral arguments? Maybe our listeners want to, you know, we now can actually follow those kinds of things. When is that going to occur? 

Clark Neily: So that’ll be on November 7. The Rahimi case will be argued at the U.S. Supreme Court. It just so happens that I’ll be there. a colleague of mine, Tommy Berry, who [00:39:00] you know, is going to be admitted to the Supreme Court that day. And one of the ways to do that is to have somebody who’s already a member of the Supreme Court bar formally move your application and you actually get to have a dialogue with the chief justice.

And so, Tommy and I will be in court that day. And, I think it’s going to be a fascinating argument because, again, the optics and the facts cut one way, but then the constitutional arguments, I think, cut strongly the other way. And it’s a real question, which of those will predominate. And I think we’ll probably get a pretty good sense of that at the argument. That’s wonderful. 

Joe Selvaggi: Do you have the little feather that you get when you argue before the, you’ve got that on your bookcase? 

Clark Neily: I do. It’s not on my bookcase. We’re still working on the office as you can see behind me, but I do. I have the quill. It’s a — you’ve got actually an actual goose feather quill pen. when you either argue, or are you, if you’re sitting at counsel table for a Supreme Court case. I was actually the backup quarterback for Heller. And so, I got my quill from that little known fact. By the way, you get a special little index card that essentially becomes your past to get into certain areas of the court when your counsel for a case that’s being argued.

And at the bottom of that card, there’s a little note that says that everybody who — every bearer of this card — is entitled to a free lunch in the court cafeteria after the argument. So, I’ve never redeemed that myself, but maybe the next time. 

Joe Selvaggi: Wonderful. Who said, Oh, that’s a great, great story, makes it all worthwhile. That free lunch. all the work that goes into it. So you and Tommy, again, he’s Tommy Barry’s friend of this podcast. I’m thrilled that should be great. So, I’m sure you will both be writing a great deal leading up to the case and perhaps after the case, your impression of being there live, seeing the tension in the room, where can our listeners. Read your work and learn more and include your amicus brief. Where can they find your work? at Cato? 

Clark Neily: Yeah, obviously, Cato has a website. It’s very simple. Cato.org. C A T O. org. in terms of blog posts, that’s obviously accessible from our homepage. But if you just type in Cato at Liberty, that brings up our blog, and then if you’re interested in any of our briefs, that’s pretty easy too. Just Google, put Cato, plus any kind of description. In this case, if you put Rahimi or domestic violence restraining order, amicus. Another way to do it is to go to the Supreme Court’s website. I think that’s a great resource for people who are not familiar with it.

Just, again, Google, U. S. Supreme Court. Their site has become very user friendly and there’s a page called Docket Search and there’s just a little box and you can put in the name of one of the parties, and you might have to click because that’ll usually bring up a few different cases.

Not Rahimi, that seems to be pretty unique. But it’s great. The Supreme Court has all of the briefs and orders online. It’s very user friendly. And I love, just, when a new case comes across my radar, a lot of the time I’ll go on the Supreme Court’s website and look at, the cert petition, which is the brief that’s filed to ask the Supreme Court to take the case, and also look at some of the friend of the court briefs, which often provides some very interesting perspectives.

Joe, you mentioned how there’s some interesting [00:42:00] cross currents in this Rahimi case. Some of the most powerful briefs in the Rahimi case have been filed by public defenders whose politics are generally pretty to the left. But what they know, and a lot of people don’t fully appreciate is that by and large, the people who get prosecuted for violating gun laws tend to be economically disadvantaged, black and brown, politically or otherwise, disenfranchised.

Essentially people who don’t have the ability to push back don’t look like us by and large. And this is something that public defender groups have a point that they’ve made with great power to the Supreme Court to keep in mind that when you uphold a potentially unconstitutional law, the effects of that law will not be visited upon all different demographics equally.

Instead, that law will almost certainly be brought to bear, against, lower income, black and brown people. And if you think that the enforcement of drug laws is racially disparate, and trust me, it is, the enforcement of gun laws in this country is even worse. and whether people think that’s a concern or not.  I [00:43:00] understand that depends on a number of different perspectives, but it is a fact and I think it’s a fact that these groups have been very effective at bringing to the court’s attention. 

Joe Selvaggi: I’m glad you connected our listeners to those good online resources to go to the primary source to use a high school term, that’s a primary source not hearing secondhand. The coverage of what goes on in the Supreme Court is so poor and it’s no surprise to me. That folks have — ordinary folks have — a dim view of the Supreme Court because they’re seeing it through a lens of people who really have an agenda. And I think, if you want to get inspired by what great minds are there on the court, what people, the great minds of people are arguing in front of it, the intellectual and philosophical ideas that they wrestle with, I find it inspirational. I hope our listeners do as well. So, we’re running out of time. I appreciate you being able to be with us here on Hubwonk, Clark. You’ve been a great resource. Thank you for joining me.

Clark Neily:. Well, it’s been a real pleasure. Thanks so much for having me on. I’d love to come back anytime, maybe after the argument or once the Rahimi case [00:44:00] comes down. I’m sure we’ll have a whole lot more to talk about then. 

Joe Selvaggi: Indeed. I’ll take you up on that. Thank you very much, Clark. 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 subscribe 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, and we’re always grateful if you share Hubwonk with friends. If you have ideas or suggestions or comments for me regarding future episode topics, you’re welcome to email me at hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.

Joe Selvaggi hosts a conversation with constitutional legal expert Clark Neily, who delves into the facts and legal complexities surrounding USA v. Rahimi, currently before the Supreme Court. This case questions the forfeiture of Second Amendment rights for individuals accused of domestic abuse.


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 Libertarianism.org’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.