How Will Rahimi Lose?

From the moment the Supreme Court granted cert in United States v. Rahimi, the smart money said that the Justices would reverse the Fifth Circuit and hold that the Second Amendment does not invalidate 18 U.S.C. § 922(g)(8)--the federal statute that forbids firearms possession by persons subject to a domestic violence protective order. Why? Not because of the "history and tradition" of "analogous" firearms restrictions circa 1791, the inquiry required by the 2022 SCOTUS decision in NYS Rifle & Pistol Ass'n v. Bruen. Other things being equal, the law decides the case. But when the result is obvious, the case decides the law. And it should be obvious that at most two Justices (Thomas and Alito) would be willing to stomach the slew of national news stories that would follow a ruling for Rahimi bearing headlines like "Man Who Fired at Witness While Assaulting Girlfriend Has Constitutional Right to Keep His Gun, Supreme Court Rules."

Yesterday's oral argument did not fundamentally alter the odds, except perhaps to make it even less likely that the Court will affirm the Fifth Circuit. A unanimous ruling for the government might even be within reach. The important question is not whether Rahimi will lose, but how.

Let's consider various issues:

(1) Justice Gorsuch seems intent on saying that Rahimi loses because he is bringing a facial challenge but that, at least as applied to Rahimi, § 922(g)(8) is valid. Expect a concurrence from Justice Gorsuch identifying a variety of potential as-applied challenges that could be brought in future cases. Such a concurrence could, in turn, inspire a counter-concurrence from one of Justices Sotomayor, Kagan, or Jackson arguing that such as-applied challenges should fail because of the important interests in safeguarding domestic violence victims, which demands certainty. Such a counter-concurrence would echo the argument that SG Prelogar made for the categorical nature of the statutory provision.

(2) Justices Thomas and Alito both seemed quite concerned about due process in the hearing that gives rise to a protective order when that order is then used as the predicate for a conviction under § 922(g)(8). This is an important issue, but as all of the Justices seemed to recognize, it's a due process issue, not a Second Amendment issue. Whether and when one can collaterally attack a determination from an initial proceeding in a subsequent proceeding is a question that arises in a variety of contexts. The best precedent for allowing such a collateral challenge is probably United States v. Mendoza-Lopez, but there the initial proceeding was administrative, rather than judicial, in nature. In answer to a question by Justice Thomas, SG Prelogar conceded that it would be substantially more difficult to justify precluding collateral attack where the initial determination was by an executive agency. I suspect she was thinking about the Mendoza-Lopez distinction in so doing.

Although the respondent's argument at times sounded like a due process challenge, it was conceded that the only actual issue raised was under the Second Amendment. Accordingly, it is highly unlikely that a majority of the Court will rule for Rahimi on this basis. If Justices Thomas and/or Alito go along with a ruling for the government, I expect one or both of them to write separately (either concurring or concurring in the judgment) to say that the case doesn't present the due process issue but then to offer some thoughts on how that issue should be addressed in future cases. I'm not sure what they will say, but   as a general matter, where the first proceeding is before a judge and affords due process or an opportunity to challenge the lack thereof, collateral attack is disfavored.

(3) Justice Jackson several times signaled that she thinks the Bruen framework unwise and unworkable. It's possible she'll write a concurrence to that effect, but I think it more likely that Justice Kagan will talk her out of doing so in order to gain maximal leverage with the Chief Justice in discussing how to construe Bruen. Justice Kagan specifically asked SG Prelogar for some help in formulating guidance for how lower courts should understand Bruen. It's highly unlikely that whoever is assigned the opinion (my bet is the Chief keeps it for himself or perhaps assigns it to Justice Kavanaugh or Justice Barrett) will fully endorse the three principles that the SG articulated, but if the liberal Justices hold together and play nice with Roberts, Kavanaugh, and Barrett, they're more likely to get more of what they want.

(4) At the core of what the SG seeks is an interpretation of Bruen in which the search for Founding-era analogous regulations establishes a general principle--such as the permissibility of forbidding possession of unusually dangerous weapons--but then that principle gets applied in light of modern conditions and understandings. In this particular case, the absence of Founding-era laws disarming persons subject to domestic violence protective orders is immaterial, because the analogies establish a principle permitting disarming felons and especially dangerous persons. Or so the SG argues.

What the SG proposes makes as much sense as possible out of Bruen. It's not obviously what Justice Thomas had in mind in Bruen, but that's because what he seemed to have in mind was a highly intentionalist approach to originalism that commentators and the Court itself have long rejected in just about every other context. So the question for the Court is whether to adopt an understanding of Bruen that makes sense going forward or one that is probably truer to its language and author's intentions but makes substantially less sense.

How about a more radical option? If the "real" meaning of Bruen is that domestic abusers get to keep their guns, a majority of the Court will find it necessary to reject Bruen. That won't happen. Given that a majority of the Court will almost certainly both retain Bruen and rule against Rahimi, the remaining question is how to reconcile these positions. There are really only two possibilities:

(a) Reconceptualize Bruen in the way that the SG suggests (even as she denies that she's reconceptualizing it);


(b) Adopt the higher level of generality for describing the principle established by the analogies in this case, so that Rahimi loses under a "dangerous people" exception, but then revert back to defining analogies at a more specific level in later cases where ruling in favor of the Second Amendment claimant would not be so odious (and thus would not result in the Court looking terrible to the public).

I would like to see the Court follow path (a), but I suspect a majority will land on (b), because that is the history of the originalist two-step at the Supreme Court. For example, self-styled originalists who don't want to be seen as rejecting Brown v. Board say that the Fourteenth Amendment bars de jure racial segregation because equal protection is abstracted beyond the concrete intentions and expectations of the Reconstruction Congress that was content to establish segregated schools in the District of Columbia, but then they also say that there is no constitutional right to abortion because of the specific history of abortion restrictions, not abstracted in any way beyond concrete intentions and expectations. Lather; rinse; repeat.

To be clear, I'd rather that the U.S. win in Rahimi based on the kind of inconsistency I've just described than that the U.S. lose. It's just that between the possibility of the two-step and the likely concurrences, the victory might end up being simply a loss averted, rather than any substantial moderation of the Bruen test.