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Thursday, October 5, 2023

VSSA Joins Amicus Brief in United States vs. Rahimi

Yesterday, VSSA joined an amicus brief filed at the United States Supreme Court in United States vs. Rahimi.  This is a difficult case because Rahimi (who is now in prison) is not a good guy. Additionally, no one wants to lessen protections for victims of domestic violence, and that is not our intent in joining this brief. There is a very good chance that Rahimi will lose his case at the Supreme Court. It is however essential to pursue this case from a Second Amendment standpoint, because the Fifth Circuit’s reasoning was that there are no “historical analogues” for this law under the Supreme Court’s landmark Bruen decision. The gun ban lobby amici are arguing that if the Supreme Court affirms the Fifth Circuit that action will invalidate the domestic violence restraining order laws in all 50 states. The risk from a pro-Second Amendment point of view is that the Supreme Court will water down the very good historical tests in Bruen. To hopefully prevent this, the brief VSSA joined, lays out narrow, alternative ways in which the Court can decide the case without doing damage to the Bruen decision. While technically supporting Mr. Rahimi’s side, the brief urges the Court to strike down the statute on other grounds than were used by the Fifth Circuit.

The brief argues two things. First, without regard to the Bruen historical test, the Court can decide that the federal statute deprives individuals of Second Amendment rights without due process of law. The federal law mentions only the need for notice and an opportunity to participate in a hearing. This leaves open all due process considerations such as the kind of notice, the standard of proof, whether there is a right to counsel, whether there is a right to cross-examine witnesses, whether there is compulsory process to make witnesses appear and to obtain evidence, and the like. The federal statute, which was enacted in the 1990s, does not even require that the individual who is disarmed by that law be found to be dangerous or a threat to others. The brief does not argue that any of the domestic violence restraining order laws in the 50 states are unconstitutional.

Second, strictly by way of background and context, the brief states that the statute is one of the least used of the federal disqualifiers (unlike, for example, felon-in-possession prosecutions, which are vastly more frequent). There are problems with some domestic violence restraining orders in that they are sometimes unscrupulously used to get an advantage in divorce proceedings, for revenge, or other wrongful reasons. Judges sometimes routinely issue such orders because it is the “safe” thing for them to do to protect themselves, even when the evidence is weak or lacking. Many times “mutual” restraining orders are issued against both parties, which can have the effect of disarming the innocent victim who may need a firearm to protect herself against a violent aggressor. Finally, real abusers often ignore restraining orders. Someone who would potentially kill or beat up a weaker person, especially a child or woman, is unlikely to be deterred by a restraining order. These arguments are made respectfully in the brief with regard to potential victims, and with the full recognition that domestic violence is a real problem. And the full range of state protections would remain in place under this approach. That includes not only restraining orders, but also prosecutions under criminal domestic violence statutes, or general statutes against assault, malicious wounding, or the like. We just don’t want more and more statutes taking away people’s firearms rights with few procedural protections. 

The gun ban lobby has weighed in with approximately 40 briefs, and sees this as an opportunity to undermine Bruen.  More and more our battle is being fought in the courts and joining this brief is just one more way for VSSA to protect and restore the rights of law abiding gun owners. You can read the brief by clicking here.  You can help support our efforts in the courts by clicking here.

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