Some of us think it’s a good thing that courts limit the freedom of men who hit, threaten or stalk their spouses, girlfriends, or domestic partners. But do stalkers and abusers have rights? The fact is that they have rights, too. To that tricky question, a Washington appellate court has recently said, in effect, “yes, but,…” Soon, in a different case, the U.S. Supreme Court may just say a flat “yes.” That causes alarm bells to ring.
The Washington court ruled against a state lobbyist, Cody Arledge, whose former girlfriend, state Rep. Lauren Davis, had gotten a protective order against him after he allegedly called and emailed her repeatedly, in an increasingly aggressive manner, although she had told him to stop. Arledge was ordered to stay at least 1,000 feet away from Davis’s home and office, and to wear a GPS ankle bracelet that would signal whenever he violated the distance requirement. Police also removed 17 firearms from his home.
Arledge argued that the order and the bracelet violated his state and federal constitutional rights to privacy and due process. A lower court had ruled against him, but the appellate court agreed that the measures violated his constitutional rights. But, the appellate court said, that wasn’t the end of the inquiry. The court also had to decide whether society has an interest in keeping women safe. “State action that results in the deprivation of constitutionally protected interests is not necessarily unconstitutional,” the court observed; “it is only the deprivation of such interests without due process of the law that offends the constitution. . . . In general, ‘[t]he state may reasonably regulate [the] right [to privacy] to safeguard society or where it otherwise has a compelling interest.’”
In this case, “Arledge concedes that ‘the State has a compelling interest in protecting the victims of [domestic violence] and abuse.’ . . . When balanced against a respondent’s due process rights, ‘[t]he government has an equally compelling interest in protecting children and preventing [domestic violence] or abuse.’” On balance, “Arledge fails to show how after a full hearing, the procedural safeguards afforded him violate his due process rights.” Writing in The Seattle Times, reporter Jim Brunner called this a decision “that domestic violence prevention experts say could lead to more widespread use of tracking technology to protect women.”
That kind of interest-balancing didn’t fly with the 5th Circuit in Rahimi, the case recently accepted by the Supreme Court. At this point, legal analysis gets more complex and more alarming.
In that case, a woman had gotten a protective order against one Zackey Rahimi, who under federal law couldn’t legally possess a firearm. The cops subsequently found that Rahimi had a rifle and pistol, in violation of the order. Rahimi appealed, claiming he had a Second Amendment right to have the guns, protective order or not. Two federal courts ruled against him. Then, in June of 2022, SCOTUS came out with its Bruen decision. And the 5th Circuit took another look.
This time, Rahimi won. A revised decision came out last March. Before the month was over, the Justice Department appealed. At the end of June, SCOTUS accepted the case. In a scathing op-ed piece, New York Gov. Kathy Hochul has called the 5th Circuit reasoning “outrageous.” But the 5th Circuit judges basically said, “Bruen made us do it.” And the 5th Circuit judges were probably right.
Bruen provided the second part of SCOTUS’ one-two punch combination in favor of a rather extreme view of the Second Amendment. The first punch, delivered 15 years ago, was Heller. That decision famously recognized – some would say “created” — a Second Amendment right that entitles just about any individual to keep firearms at home. This was more than a little controversial, as it still is.
“Between 1791 and 2008,” Lawrence Douglas, Professor of Law, Jurisprudence and Social Thought; and chair of Law, Jurisprudence, and Social Thought at Amherst, has written in The Guardian, “the Supreme Court had never struck down a government gun regulation, presumably because as Warren Burger, the conservative chief justice appointed by Richard Nixon once observed, the idea that the second amendment creates a personal right to gun ownership is ‘one of the greatest pieces of fraud – I repeat the word ‘fraud’ – on the American public by special interest groups that I have ever seen in my lifetime.’” But in Heller, “a 5-4 majority of the Supreme Court elevated this fraud into constitutional doctrine.” Which is ominous, since the present Court isn’t likely to make a U-turn on the Second Amendment.
Heller established an individual right to keep firearms in the home. Bruen established an individual right to carry them in public.
Lower courts had balanced Second Amendment rights against New York State’s interest in the safety of its citizens. Those lower courts, Justice Thomas wrote for the Bruen majority, got it wrong. If “the Second Amendment’s plain text covers an individual’s conduct,” he wrote, “the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” In other words, beyond the plain text of the amendment, a court may not rely on a balance of interests; it may rely only on 18th century history.
Rahimi has already inspired a fair bit of well-deserved hand wringing. Governor Kathy Hochul has said the 5th Circuit “put forth an outrageous legal theory”; she also warned that “the Supreme Court could rule that domestic violence survivors today deserve only the protections they had in the 18th century — a time before most women could own property or work outside the home, let alone vote.”
Well, yeah. That’s where originalism – applied cynically to reach a justice’s preferred result – can lead. Such analysis asks, What were the Framers thinking? And what about the citizens who ratified the amendment? Nobody really knows.
As the SCOTUS majority conceded in Heller, the community entitled to keep and bear arms doesn’t include everyone. Clearly, the Court said, it doesn’t include felons or the mentally ill, or allow anyone to carry arms in schools or other “sensitive places.” (Amy Coney Barrett is on record as thinking maybe we should re-think the part about felons, too. The 5th Circuit cited her dissent as a circuit court judge in which she argued that position.)
The door seemed to be left open for other outliers. Why not wife-beaters? No, they weren’t an unusual, much less an excluded, class in 1790. At the time, wife-beating was accepted. There was no law against it until the 1880s. Obviously, the Framers didn’t have domestic violence in mind. But wait, did the Framers have in mind bump stocks or 50-shot magazines or AR-15s? Probably not.
The Heller court explained that the Second Amendment applies to whatever weapons are in current use at the time. “Some have made the argument,” it said, “bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way, [and] the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
The Second Amendment doesn’t say that. The Court just assumes it makes sense. But the Court doesn’t assume that it makes sense to update the categories of people who can and should be excluded from gun ownership. Where’s the logic there? Clearly, the originalists see what they want to see.
The Framers weren’t idiots. They knew things would change. That’s why they made the Constitution amendable. Unfortunately, they weren’t clairvoyant. They didn’t foresee a time at which the document would prove almost impossible politically to amend — much less a time of such blind partisanship and anti-democratic sentiment that opening the amendment process would be a truly terrifying idea.
The 5th Circuit made it clear that the issue wasn’t one of balancing rights or creating sound public policy; it was only compliance with the Second Amendment as the Bruen court defined it. Two courts had upheld the statute under which Rahimi had been charged. Then Bruen happened, and “we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence.” Therefore, “[t]he 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 . . . a specific statute that does so, is constitutional under the Second Amendment. . . . In the light of [Bruen], it is not.”
The court didn’t pretend Zackey Rahimi was a persecuted innocent. Records show that, to the contrary, “[b]etween December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”
“According to the Government,” the 5th Circuit said, “Heller and Bruen add a gloss on the Second Amendment that restricts its applicability to only ’law-abiding, responsible citizens.” Because Rahimi is neither responsible nor law-abiding, as evidenced by his conduct and by the domestic violence restraining order issued against him, he falls outside the ambit of the Second Amendment. Therefore, argues the Government, [the statute] is constitutional as applied to Rahimi.”
The Court didn’t buy that. Instead, it found that “Rahimi, while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees, all other things equal.” This is not reassuring. But it is exactly where Bruen seems to lead.
If it does lead to this extreme position, the impact will reach far beyond Rahimi’s home state of Texas. In Washington, under the Arledge protection order, police took 17 firearms from the lobbyist’s home. That seems eminently sane. Was it also constitutional? Not if the court upholds Rahimi.
Justice Robert Jackson — who had been Franklin D. Roosevelt’s attorney general until Roosevelt put him on the court to uphold New Deal legislation – is credited with reminding his colleagues that the Constitution is not a suicide pact. Actually, Jackson wrote in 1949, “[t]here is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Words for our own time.
Where the Second Amendment is concerned, the current SCOTUS majority seems inclined to convert it into such a suicide pact. Rahimi gives it an opportunity to take another step in that direction. Will it take the step? Don’t bet against it.