The Reload Analysis Newsletter

Members’ Newsletter: SCOTUS Delivers First Second Amendment Case in Two Years

The Supreme Court handed down its most consequential gun case of the term this week.

In US v. Rahimi, The Court sided with the government. It upheld Rahimi’s conviction for possessing guns while being subject to a domestic violence restraining. The ruling was fairly narrow, only finding the law was constitutional in circumstances, like Rahimi’s, where the subject of the order was specifically found by a court to be dangerous. And the gun ban is only temporary.

But, mostly, the ruling served as a rebuke to how the Fifth Circuit applied Bruen‘s history and tradition test too strictly. That is likely to have far greater impact than the ruling’s practical effect. And it leaves me wondering if The Court plans to take an anti-Rahimi case to dole out some guidance on when Bruen is being applied too loosely.

Second Amendment scholar David Kopel also joins the podcast to give his insight into the decision handed down by the Supreme Court.

I also take a look at the risk and potential reward behind President Joe Biden’s big bet that gun control will help him win the election. There’s reason to think it could energize his unenthused base. But that could come at the cost of alienating swing voters.

Plus, my charity range day was on Saturday. It went great!

A Moms Demand Action supporter holds a sign outside the Supreme Court
A Moms Demand Action supporter holds a sign outside the Supreme Court / Stephen Gutowski

SCOTUS Upholds Domestic Violence Restraining Order Gun Ban in 8-1 Vote
By Stephen Gutowski

The Supreme Court of the United States (SCOTUS) ruled today that people determined by a court to be dangerous can be disarmed–at least temporarily.

The majority determined the federal law that bars those subject to domestic violence restraining orders from possessing guns is not unconstitutional on its face. It also found the law was constitutional as applied to defendant Zachary Rahimi, who was specifically found by a judge to be a threat to the mother of his child.

“When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect,” Chief Justice John Roberts wrote in US v. Rahimi. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”

Only Justice Clarence Thomas, who wrote the landmark 2022 ruling in New York State Rifle and Pistol Association v. Bruen, dissented.

The ruling is the first to shed new light on how the Supreme Court expects lower courts to carry out the Second Amendment test it handed down in 2022’s New York State Rifle and Pistol Association v. Bruen. The Bruen decision emphasized an approach to examining the constitutionality of modern gun laws by determining whether they fit within the history and tradition of gun regulation dating back to the period when the Second Amendment was ratified. Rahimi is the first time The Court has applied that new test itself, and it will have a major impact on how lower courts interpret Second Amendment protections moving forward.

The case centered around Rahimi, who was convicted of violating his restraining order by possessing firearms after police found them in his room during a search related to other crimes he was accused of committing. He appealed his conviction on the grounds it violated his Second Amendment rights. A Fifth Circuit panel sided with him, finding there was no historical analogue for the domestic violence restraining order Rahimi was disarmed under–a key test under the Bruen decision.

“The Government fails to demonstrate that § 922(g)(8) ‘s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring ‘relevantly similar’ analogues: ‘how and why the regulations burden a law-abiding citizen’s right to armed self-defense,’” Judge Cory T. Wilson wrote for the panel. “As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.”

SCOTUS disagreed, saying Rahimi can be lawfully disarmed under the Second Amendment. It rebuked some lower courts that it said had become too strict in trying to find

“[S]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber,” Roberts wrote. “As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it ‘extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.’ By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”

The Court insisted it never intended for the Bruen test to require historical analogues to be twins. It only required that they establish a tradition in line with the modern regulation.

“[W]e have no trouble concluding that Section 922(g)(8) survives Rahimi’s facial challenge,” Roberts wrote. “Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others. Section 922(g)(8) can be applied lawfully to Rahimi.”

The majority pointed to two laws in particular as representative of the tradition that the restraining order gun ban fits into. One was a group of laws that required those who were accused of being a danger to post a type of bond against breaching the peace. The other group of statutes bared people who were accused of being dangerous from carrying arms in an effort to terrify the public.

“Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote. “Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be. ”

Justice Thomas disputed that finding. He argued those laws weren’t close enough to the modern prohibition to pass muster.

“The Court has two rejoinders, surety and affray laws,” he wrote. “Neither is a compelling historical analogue. As I have explained, surety laws did not impose a burden comparable to §922(g)(8). And, affray laws had a dissimilar burden and justification. The Court does not reckon with these vital differences, asserting that the disagreement is whether surety and affray laws must be an exact copy of §922(g)(8). But, the historical evidence shows that those laws are worlds—not degrees—apart from §922(g)(8).”

Several of the justices who joined the majority issued concurrences. One common theme in those opinions was the idea The Court has a long way to go in establishing its Second Amendment jurisprudence.

“Our resolution of Mr. Rahimi’s facial challenge to §922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in ‘particular circumstances,’” Justice Niel Gorsuch wrote. “So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a ‘credible threat’ to another’s physical safety. We do not resolve whether the government may disarm an individual permanently. We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense. Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to ‘obtain an exception if he needed his arms for self-defense.’ Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, ‘not ‘responsible.’”

“Who is protected by the Second Amendment, from a historical perspective?” Justice Ketanji Brown Jackson asks. “To what conduct does the Second Amendment’s plain text apply? To what historical era (or eras) should courts look to divine a historical tradition of gun regulation? How many analogues add up to a tradition? Must there be evidence that those analogues were enforced or subject to judicial scrutiny? How much support can nonstatutory sources lend?”

The majority itself cautioned that its ruling is intended to be narrow and does not purport to settle questions beyond the one directly at hand.

“In HellerMcDonald, and Bruen, this Court did not ‘undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment,’” Roberts wrote. “Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

But it did go on to reject the government’s attempt to establish a new standard for who can be barred from owning guns based on whether they are “responsible.”

“Finally, in holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible.’ ‘Responsible’ is a vague term. It is unclear what such a rule would entail,” Roberts wrote. “Nor does such a line derive from our case law. In Heller and Bruen, we used the term ‘responsible’ to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not ‘responsible.’ The question was simply not presented.”

The doors to the Supreme Court in Washington, D.C.
The doors to the Supreme Court in Washington, D.C. / Stephen Gutowski

Analysis: Will SCOTUS Take an Anti-Rahimi Case? [Member Exclusive]
By Stephen Gutowski

In US v. Rahimi, the Supreme Court rebuked a lower court for applying its Second Amendment test too strictly. Will it do the same for those applying it too loosely?

On Friday, The Court handed down an 8-1 ruling upholding Zachary Rahimi’s conviction for violating the federal ban on gun possession for those subject to a domestic violence restraining order. It said the underlying federal law fit within the history and tradition of firearms regulation, as required by the Bruen test, because early American surety and affray laws were close enough in basis and execution for the modern law to pass muster. The majority ruled it was within the tradition of “preventing individuals who threaten physical harm to others from misusing firearms.”

The ruling will likely have little direct practical effect. It maintains the status quo for those, like Rahimi, who’ve been subject to a domestic violence restraining order after a court specifically found they are dangerous. The government can still disarm them–at least temporarily.

The more substantial outcome of the ruling is found in how it got to the conclusion the modern ban was constitutional and the message it sent to the lower courts.

“[S]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber,” Chief Justice John Roberts wrote for the majority. “As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it ‘extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.’ By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”

The opinion was primarily a rebuke of the Fifth Circuit Court of Appeals for the way it applied Bruen, which the majority reminded everyone it did not mean to be a regulatory “straightjacket.”

“For its part, the Fifth Circuit made two errors,” Roberts wrote. “First, like the dissent, it read Bruen to require a ‘historical twin’ rather than a ‘historical analogue.’ Second, it did not correctly apply our precedents governing facial challenges.”

Of course, the Bruen test was also not meant to be a “blank check” for government regulators either. The lone dissenter in the case, who also happened to be the author of the Bruen decision, warned the majority’s reasoning in Rahimi could push the lower courts in that direction.

“The Court recognizes that surety and affray laws on their own are not enough,” Justice Clarence Thomas wrote in his dissent. “So it takes pieces from each to stitch together an analogue for §922(g)(8).”

He argued that mix and match approach “defeats the purpose of a historical inquiry altogether.”

“Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement,” Thomas warned. “That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of ‘regulatory blank check’ that Bruen warns against and the American people ratified the Second Amendment to preclude.”

To his point, it’s not difficult to find lower court rulings in the post-Bruen landscape that have relied on dubious historical analysis to uphold all manner of modern gun restrictions. Cases where judges have upheld bans on the sale of popular guns and so-called Large Capacity Magazines (LCMs) have all involved an exceedingly broad viewpoint for finding historical analogies. Often, the judges will just throw a mish-mash of laws from varying time periods against the wall and call the collection a justifiable analogue because they share a general goal of ensuring public safety.

“The justification for the law is a public safety concern comparable to the concerns justifying the historical regulation of gunpowder storage and of weapons like sawed-off shotguns, Bowie knives, M-16s and the like,” Judge William Kayatta, a Barack Obama appointee, wrote in Ocean State Tactical v. Rhode Island. “The analogical ‘how’ and ‘why’ inquiry that Bruen calls for therefore strongly points in the direction of finding that Rhode Island’s LCM ban does not violate the Second Amendment.”

The majority disagreed with Thomas’s dim reading of the precedent they set. Instead of abandoning the Bruen standard, they argued Thomas’s interpretation of the historical precedent was simply too strict. As was the Fifth Circuit’s interpretation.

Presumably, a majority of The Court also believes other courts have gone too far in the other direction. Now that they’ve given the nation a starting guide for what it looks like to apply Bruen’s history and tradition test too stringently, it would make sense to provide some clues in the other direction. There are likely to be a lot of opportunities to do exactly that waiting in line for a cert grant.

Bruen is a test subject to the historical record’s gray areas. As many of the concurrences point out, history is rarely as straightforward as we’d like. Interpreting it and then applying those lessons to modern gun laws is often going to be difficult. The Supreme Court was always going to have to lead by example in applying the test itself across a wide array of Second Amendment cases to develop a clear structure for the lower courts to follow.

However, if it doesn’t take an Anti-Rahimi case anytime soon and leaves only its admonishment for too strictly interpreting Bruen for lower courts to look to, Thomas’s warnings may well come true.

Podcast: 2A Scholar David Kopel Reacts to Major Supreme Court Ruling [Member Early Access]
By Stephen Gutowski

The Supreme Court handed down its first Second Amendment ruling in two years on Friday. It’s also the first case where The Court applied the test it developed in New York State Rifle and Pistol Association v. Bruen. Those facts alone mean US v. Rahimi will hold a great deal of influence on gun cases across the nation.

So, we’ve got one of the top pro-gun scholars in the country on the show to break down what The Court did and didn’t hold. Independence Institute’s David Kopel has been at the forefront of the Second Amendment fight for decades, with citations in federal court decisions coast to coast and at the Supreme Court itself. He also filed a brief in Rahimi that appears to have significantly influenced the majority’s thinking.

Kopel lays out the good, bad, and ugly of the ruling that upheld the domestic violence restraining order gun ban. He said he wasn’t surprised The Court upheld Rahimi’s conviction, given a lower court found him dangerous. He also agreed with some of the warnings about how the majority loosened the standard for the Bruen test that Justice Clarance Thomas included in his lengthy dissent.

However, Kopel said he was overall pleased with the Rahimi decision’s outcome. He argued it gave credence to future challenges to the same law by defendants who don’t have the same lengthy criminal record as Rahimi did. He also predicted how the case might impact other Second Amendment cases pending in the lower courts.

You can listen to the show on your favorite podcast or by clicking here. Video of the episode is available on our YouTube channel. An auto-generated transcript is here. Reload Members get access on Sunday, as always. Everyone else can listen on Monday.

Plus, I detail the latest Supreme Court Second Amendment ruling on this week’s episode of the News Update. Then I talk about President Biden’s new gun control ad and the risk vs. reward of his strategy in centering his call for new firearms restrictions as the election nears. I also go over an on-the-ground report from The Counteroffensive out of Ukraine about a new effort to bring the war-torn country its own version of the Second Amendment.

Auido is here. Video is here.

Homes For Our Lives Charity Range Day

It was another successful charity range day benefiting Homes For Our Lives on Saturday! It was a win-win-win. The auction winners got a fun range day and some quality firearms training from yours truly. I got to do some shooting and have lunch with some true patriots and good company. Severely wounded soldiers got more funding for custom-built homes that can accommodate their unique needs.

The whole day was a blast!

I look forward to doing the auction again later this year. I’ll give you all a heads-up when that rolls around again. In the meantime, please consider donating to Homes For Our Troops!

Joe Biden delivers remarks about Afghanistan on August 16, 2021
Joe Biden delivers remarks about Afghanistan on August 16, 2021 / screenshot

Analysis: The Risk and Potential Reward of Biden Doubling Down on Gun Control [Member Exclusive]
By Stephen Gutowski

President Joe Biden’s increasing focus on promising new gun restrictions could help tip what’s sure to be a tight election. But it’s not a safe bet which direction it tips.

The Biden Campaign released a new gun-control ad this week. It attacked former president Donald Trump’s record on gun policy while touting some of Biden’s gun record. The ad also signaled that Biden intends to make gun policy a more prominent part of his re-election pitch.

That adds new intrigue to the 2020 rematch most Americans didn’t want to see. In a race increasingly likely to come down to a few hundred thousand votes across a handful of states, how each side handles every issue could make the difference between who wins or loses. Biden’s double down could help him reactivate base voters who’ve been soft on him thus far, or it could alienate swing voters and those from traditional democratic demographics who’ve bought guns for the first time in recent years.

Biden has gained momentum in recent weeks, likely due to Trump’s felony convictions in New York. He now trails the former president by .5 percent in the Real Clear Politics average and is up by .1 percent in the 538 average. The latest Fox News poll has Biden up two points, following a three-point swing in his favor since last month.

But the race remains a toss-up, with Trump still ahead in most battleground polling.

That hasn’t kept Biden from emphasizing even his most aggressive gun-control policies. Instead of trying to moderate on the issue, he has pushed for a new sales ban on the AR-15 and other popular firearms from the State of the Union through this week.

“If you care about the gun violence crisis in this country, there is only one candidate in this race with a proven record of successfully taking on the gun lobby and only one candidate who will ban assault weapons and high-capacity magazines,” Biden communications director Michael Tyler told The Hill this week. “That’s President Biden.”

But that’s a big risk because “assault weapons” bans are not broadly popular anymore. Last February, an ABC News/Washington Post poll found that most Americans are against an AR ban. That was part of a series of polls identifying a decline in support for new gun bans.

Pointing to the things he’s been able to do, such as signing the Bipartisan Safer Communities Act and unilaterally imposing new restrictions on pistol braces or used gun sales through ATF rulemaking, is probably not helping his cause much. That’s because Biden’s approval on guns has been below his already-low general approval rating since he took office. The last time the Associated Press and NORC Center for Public Affairs Research asked about his handling of gun policy, Biden was at an all-time low at 31 percent approval.

Those numbers indicate Biden has failed to satisfy either side of the gun debate. His accomplishments are not the big ticket items average gun-control supporters are looking for, but the gun owners they directly impact are not happy about them.

His executive actions have been particularly vulnerable to this dynamic. Most Americans likely don’t know what a pistol brace is or have a detailed understanding of how the used gun market works. So, the new restrictions Biden has placed on them have probably gone unnoticed by most people other than the millions who’ve had to register guns the ATF long told them were legal or who’ve given up selling on the secondary market out of fear of the latest ATF directive.

That’s a recipe for making almost everybody unhappy. It’s probably the reason that Fox poll with Biden up by two points over Trump still had him trailing the former president, a convicted felon who can’t even own guns anymore, on who’d be better to handle gun policy.

The only upside for Biden is that he still has room to move Democrats back into his corner. Fox found Republicans were seven points more likely to say Trump would be better at handling gun policy than Democrats were to say the same for Biden. That’s where amping up his aggressive message on restricting guns could have an impact. It could bring some Democrats back home.

Of course, that’s assuming those Democrats unhappy with Biden all feel that way because they want him to do more on guns.

That’s a risky calculation, too. The minorities that Biden has had trouble bringing back into the fold all year are also the fastest-growing demographic of new gun owners, especially in the months and years since Biden’s 2020 victory. A significant portion of the resistance to Biden’s gun policies inside his own party may come from those new owners, and pushing more restrictions will only further alienate them.

Then there’s the independents. Despite Biden winning them by four points overall, they still favor Trump’s handling of guns by two points in the Fox poll. Pushing further to the left on guns risks alienating more of them as well.

It’s impossible to say whether the base voters Biden can rally back to his side with an aggressive gun-control push will offset the swing voters or new gun owners he alienates along the way. But facing another election likely to be decided by a razor-thin margin, that balancing act will be as important as any other facing the unpopular incumbent as he faces off against his equally unpopular predecessor.

That’s it for now.

I’ll talk to you all again soon.

Stephen Gutowski
The Reload

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