On Friday, the U.S. Supreme Court released the last of the opinions from its November argument session (actually late October and early November) — United States v. Rahimi.   The issue in this case is part of Title 18, Section 922 of the U.S. Code (the section covering the possession and sale of firearms).  In particular, paragraph (g) lists people who may not lawfully own a firearm including unlawful immigrants, convicted felons and those accused of felonies (i.e. Donald Trump), drug users (i.e. Hunter Biden), and, in subparagraph (8), people who are subject to qualifying orders of protection like Mr. Rahimi.  Mr. Rahimi claimed in the trial court that subparagraph (8) violates the Second Amendment.

When we were last at the Supreme Court on the Second Amendment two years ago.  Justice Thomas wrote the opinion of the Court and said that every other court that had been considering the Second Amendment was wrong in how they were looking at these issues.  Rather than using heightened scrutiny (i.e. is the law narrowly tailored to promote a compelling interest) or intermediate scrutiny (closely tailored to promote a substantial interest), courts should be looking at legal history to determine the type of regulations that were permitted at the time that the Second Amendment was adopted.  The Fifth Circuit, based on the language used by Justice Thomas, decided that, while there were somewhat similar regulations at the time of the Second Amendment, those regulations were not similar enough.

On the result, the Court decided by 8-1 that the Fifth Circuit was misinterpreting what the Court said two years ago.  Of course, the one was Justice Thomas who actually wrote that opinion.  From the current opinion, it is clear that the Supreme Court thinks that Justice Thomas’s language in 2022 was not precise (and some of the concurring opinions back then hinted that some of the justices who joined Justice Thomas’s opinion did not actually agree with it). Continue Reading...