SCOTUS: United States v. Rahimi - 2nd Amendment gun rights case

... the Supreme Court's currently pending case in United States v. Rahimi, a case reviewing the Fifth Circuit's holding that 18 U.S.C. § 922(g)(8) – which forbids gun possession by those subject to domestic violence restraining orders – is facially unconstitutional. There is much to be said on the merits of the case but our central point here is one of methodology. The Fifth Circuit erred by analyzing the case at the level of overly specific analogies – too close to demanding the kind of "historical twin" or "dead ringer" that Bruen rejects.

Instead, the case should be approached at the level of general law principle – by asking not just who historically has been denied the right to arms, but why and to what extent. Section 922(g)(8), like many federal prohibitions, amounts to a total denial of the right for certain people. In evaluating the constitutionality of this ban, the most important questions are the public interests the state seeks to pursue and whether pursuing those interests with a complete ban on possession has a basis in general law principles.
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On Tuesday, the Supreme Court heard oral argument in United States v. Rahimi. Things did not go well for Mr. Rahimi. I can see him losing 7-2, 8-1, or maybe even 9-0, over some very stern concurrences. ...
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Early in the argument, Justice Barrett acknowledged that domestic violence is a fairly easy case with regard to a "tradition of dangerousness." Rahimi's conduct "might be in a heartland," Barrett asked, "but then you can imagine more marginal cases." That is, a case where it is no so clear that the defendant is dangerous.

Later, Justice Barrett pressed the SG about what would happen in a case where the defendant is not dangerous. Prelogar responded, "You don't need to resolve that issue here. This is a is a case just about someone who is not responsible in the form of being dangerous." Barrett asked, "But you're trying to save, like, the range issue. So you're not applying dangerousness to the crimes?"

If you skimmed the transcript, you might have missed the reference. Indeed, "range" was lowercase and not italicized. Here, Barrett was referring to Garland v. Range. Range presents the question of whether a person convicted of making false statements to obtain food stamps is subject to the disqualification under Section 922(g)(1). On June 6, 2023, the en banc Third Circuit held that under Bruen, Range could not be disarmed.
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Range will be distributed at the November 17 conference. If the Court grants certiorari, the case can be argued in the March/April window. Range and Rahimi would become companion cases. Even if Rahimi loses by a lopsided margin, Range could pull out a victory by the same margin from Bruen. Indeed, the Court may be able to split those cases in a way so as not to water-down Bruen. The Court could even vacate-and-remand Rahimi in light of Range. If the Fifth Circuit is given clear guidance on what the state of the law is, it can follow that guidance.

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In the November 7 oral argument in U.S. v. Rahimi, the government conceded the fundamental difference between felonies and misdemeanors, which criminal defense and pro-gun attorneys will find useful. Also, direct references were made by some Justices to the issue of non-violent felons who are not dangerous. And on the separate state-law issue of whether administrative officials may have discretion to deny the right to bear arms, the government conceded that they do not.
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