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Before Jones, Ho, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
The question presented in this case is not whether prohibiting the
possession of firearms by someone subject to a domestic violence restraining
order is a laudable policy goal. The question is whether 18 U.S.C.
§ 922(g)(8), a specific statute that does so, is constitutional under the Second
Amendment of the United States Constitution. In the light of N.Y. State Rifle
& Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.
That paragraph sums it up pretty nicely, but I encourage you to read the entire decision.
Mr. Rahimi seems a proper scoundrel, and I hate that such a person might be made an icon for 2nd amendment rights - but he challenged an unjust law, and the court decided in his favor.
Red flag laws are hardly any different than the issue decided here. Just like a jealous ex can get a restraining order on a whim, the same jealous ex can pick up the phone and make up a story about you being suicidal, or threatening, or whatever. In short, anyone can strip you of your rights, just to be vindictive if they only get the restraining order, or cite a red flag law.
Moving forward, I expect to see more due process before people are stripped of their 2A rights. Sure, a lot of fools bargain, and surrender their rights. But, you'll still see more due process in the coming years.
(Score: 3, Interesting) by krishnoid on Friday February 03, @05:27AM
If the right to keep and bear arms is to defend against the tyranny of one's *own* government, isn't the second amendment there to guarantee that one be able to commit, well, acts of "domestic" "violence"?
(Score: 5, Interesting) by Anonymous Coward on Friday February 03, @06:39AM (4 children)
The decision in NY State Rifle & Pistol Association, Inc. v. Bruen was asinine and extreme. SCOTUS carved out a ridiculous exception for laws involving the second amendment, discarding judicial precedent and creating a standard that doesn't apply to any other part of the Constitution. In summary, unless there is historical precedent for a law regulating firearms, it must be ruled unconstitutional. That's the standard that was applied here.
For any other part of the Bill of Rights, a different standard is applied, usually strict scrutiny. That means the court assesses whether there's a compelling state interest for the restrictions, if there are less restrictive means to achieve the same outcome, and generally weighing the benefits of regulation versus the reduced liberty. That's the standard for the rest of the Bill of Rights. But the Roberts court decided that they had to carve out a special exception for the second amendment, creating a higher standard for regulating firearms than for anything else in the Bill of Rights. Nonsense like this is exactly why SCOTUS has become illegitimate. It is a politically motivated decision that completely ignores judicial precedent.
That means lower courts can't consider the benefits of laws that regulate firearms. In this case, the court can't consider the benefits to society of preventing domestic abusers and even potential mass shooters from having guns. The court only gets to consider whether there is historical precedent, completely throwing out the standard of strict scrutiny that otherwise applies.
Of course, Runaway doesn't give a damn about things like judicial precedent when it means banning abortion, or making sure that domestic abusers and mass shooters can't have their guns confiscated because of red flag laws. Prior to the asinine decision by SCOTUS in NY State Rifle & Pistol Association, Inc. v. Bruen, this law almost certainly would have been upheld as being constitutional.
(Score: 0, Troll) by Runaway1956 on Friday February 03, @10:41AM (2 children)
You have just described the entire gun control philosophy. In point of fact, SCOTUS has ordered the courts to give the same respect to the 2nd as they give to all the rest of the constitution. SCOTUS most certainly did not carve out an exception for the 2nd.
Strict scrutiny is the only standard that should ever be used for any constitutional right. But liberal and progressive judges have permitted the 2nd to be attacked using nonsense rules for decades.
You would be appalled if the same lax standards were to be applied to the freedom of speech, would you not? Why is it alright for a bunch of arsewipes at the state capitol to say, "We don't like the things you say, so that makes you a criminal?" In effect, that is exactly what happens with the 2nd Amendment. "We don't like guns, so that makes you a criminal."
That is false. With due process, people can be convicted of the crimes they have committed, then, on that bases, have their rights limited or removed. Red Flag laws never offered any kind of due process. A lot of protection orders are put into place without due process.
If you have a cretin in your home town who must be stripped of his rights, you need to do the work of convicting him of a crime, then using constitutionally valid laws to strip him of his weapons.
I suggest you wake up and smell the coffee. You cannot arbitrarily strip people of their constitutional rights, just because you disapprove of the people, or the rights.
Progressive prosecutors have already declined to prosecute criminals for having weapons at their disposal, in all the major cities. It's past time that law abiding citizens stop being prosecuted simply for exercising their right to self defense.
Abortion is the number one killed of children in the United States.
(Score: 2) by DeathMonkey on Friday February 03, @10:19PM (1 child)
My understanding of this particular case is that it has absolutely no bearing on red flag laws.
Red flag laws are when guns are removed because there is some kind of credible threat. And yes that includes any person who calls the police and says they think someone might shoot them. In that case it's pretty reasonable for the police to step in (even if that person happens to be your ex).
This law was tossed specifically because there was no process to establish that there was a credible threat to justify the infringement of rights.
(Score: 1) by Runaway1956 on Friday February 03, @11:50PM
IMO, this is very, very much the same as red flag laws, in that there is no due process. There needs to be at minimum a kangaroo court, so that the accused can have his day in court. As things stand, I can decide that I want to rob a local merchant on his way to make his nightly deposit. One anonymous phone call to the cops, telling them that the merchant is suicidal, and I can be halfways sure that he won't be armed when I rob him. Or, in a state where an anonymous call won't trigger the red flag law, I can approach the merchant's ex, or his estranged offspring, or a disgruntled ex-employee, or anyone to make that call.
There is far too much room for abuse, and no due process. That's a real problem.
Abortion is the number one killed of children in the United States.
(Score: 1, Troll) by khallow on Friday February 03, @02:08PM
I think a huge part of the problem here is that you and many other people don't realize how false the above statement is. "Carved out a ridiculous exception" is merely respecting a constitutional amendment that's just as important as all the other ones.
There's no difference here. Red flag laws don't pass strict scrutiny either. It's not just the failure to provide a compelling state interest, it's also that the law isn't narrowly tailored to achieve that interest (here, affecting all law abiding citizens).
I'll note again Runaway's observation about the failure to respect due process. When multiple violations of the Bill of Rights occur, it's a huge sign that you're doing it wrong.
No matter how terrible and tyrannical a law is, there will always be benefits of the law, even if the judge has to lie hard. It's a terrible standard.
I find it interesting how much creative misinterpretation of constitutional law there is when it comes to the Second Amendment. I guess gun control proponents won't get their laundry list done through legal means, so this weaseling is plan B.
(Score: 4, Interesting) by pTamok on Friday February 03, @02:02PM (2 children)
Hmm, do people who are not U.S. citizens, but are physically within the borders of the USA have the same rights as U.S. Citizens under the Constitution and its amendments?
- the surprising answer to many is "Yes, with a couple of carve outs in Article IV Section 2 and the 14th amendment".
So it is arguable constitutionally that undocumented migrants have the right to bear arms. Could be interesting.
(Score: 1) by khallow on Saturday February 04, @12:53AM (1 child)
Yes. There is a minor distinction here. A few rights and privileges are exclusive to US citizens, like voting. The Second Amendment is not one of them.
Having armed, undocumented migrants around was the norm for most of the US's history.
(Score: 2, Insightful) by pTamok on Saturday February 04, @02:02PM
Yes. And it didn't turn out well for the Native Americans.
(Score: 5, Insightful) by Tork on Friday February 03, @05:22PM (6 children)
Slashdolt Logic: "25 year old jokes about sharks and lasers are +5, Funny." 💩
(Score: 1) by khallow on Saturday February 04, @12:32AM (5 children)
Too many people are getting their rights taken away because bad things happen too. You have to balance not merely treat one evil as if it were the only evil in the world.
(Score: 2) by Tork on Saturday February 04, @12:34AM (4 children)
Slashdolt Logic: "25 year old jokes about sharks and lasers are +5, Funny." 💩
(Score: 1) by khallow on Saturday February 04, @12:54AM (3 children)
(Score: 2) by Tork on Saturday February 04, @12:59AM (2 children)
Slashdolt Logic: "25 year old jokes about sharks and lasers are +5, Funny." 💩
(Score: 1) by khallow on Saturday February 04, @01:43AM (1 child)
Here's the assertion that you made:
Given you wrote this blanket statement in a Runaway journal which celebrates the defeat of gun control, I think it's as good as being an assertion.
(Score: 2) by Tork on Saturday February 04, @03:59AM
Slashdolt Logic: "25 year old jokes about sharks and lasers are +5, Funny." 💩
(Score: 3, Informative) by DeathMonkey on Friday February 03, @09:35PM
I tend to agree on this one.
This person has not been found guilty of a crime. To be stripped of your constitutional rights without due process of law is unconstitutional.
We already have specific carveouts for people who are deemed dangerous: keeping them in jail. But they don't want to do that because now the DA actually has to convince a judge that there a compelling public safety reason for it.