On September 12, the Fifth Circuit determined United States. v. Rahimi on remand from the Supreme Court docket. All-too-often, folks suppose a Supreme Court docket choice is the top of the matter. However in actuality, the decrease court docket has to really enter a judgment to hold the Supreme Court docket’s ruling into impact.
Right here is how the per curiam panel opinion describes Rahimi:
The Supreme Court docket, clarifying its Bruen take a look at, reversed our judgment and held that § 922(g)(8) is facially constitutional. United States v. Rahimi, 602 U.S. —-, 144 S. Ct. 1889 (2024).
I agree. The Supreme Court docket didn’t faithfully apply Bruen. It modified the take a look at! For all the outrage concerning the Fifth Circuit’s reversal charge, a decrease court docket can’t be faulted for faithfully following precedent. Ditto for when the federal government modifications its place on attraction, thus radically altering the dispute, which occurred within the mifepristone circumstances.
The panel recognized a minimum of one vital regard by which the Court docket “modified” the Bruen take a look at:
We learn the Court docket’s evaluation in Rahimi to have modified Bruen in a minimum of one related respect. In Bruen, the Court docket instructed that surety legal guidelines offered no historic analogue for banning an individual from having a gun, as a result of surety legal guidelines solely required “sure people to publish bond earlier than carrying weapons in public.” 597 U.S. at 55. “These legal guidelines weren’t bans on public carry.” Id.; see additionally id. at 59 (identical). So any “reliance on [surety laws] [was] misplaced.” Id. at 55. In Rahimi, the Court docket introduced that surety legal guidelines “verify” that coated people “could also be disarmed.” 602 U.S. at —-, 144 S. Ct. at 1901.
The panel is precisely proper. In Bruen, Justice Thomas rejected the relevance of the surety legal guidelines. However in Rahimi, Chief Justice Roberts glommed collectively the surety legal guidelines (ex ante restriction) with felon disenfranchisement legal guidelines (ex publish restriction) to help the disqualification for these topic to home violence restraining orders, however who weren’t convicted.
Choose Ho wrote a concurrence that makes this level express.
First, he explains that it’s not the position of the decrease courts to anticipate the place the Supreme Court docket is probably going headed:
The Supreme Court docket can regulate or amend its personal precedents at its discretion. Inferior courts haven’t any such luxurious. The Supreme Court docket has repeatedly instructed us to comply with its precedents, whether or not we agree with them or not—and whether or not we count on the Court docket itself to comply with them or not. See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989); Agostini v. Felton, 521 U.S. 203, 237 (1997); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); United States v. Hatter, 532 U.S. 557, 567 (2001).
Second, as everyone knows, solely the Supreme Court docket can modify its personal precedents. Certainly, the Fifth Circuit halted the Mississippi abortion legislation that was upheld in Dobbs:
So we might be defying the Court docket’s specific command if we determined circumstances primarily based on anticipated modifications to its precedents. It is as much as the Court docket to switch or overrule its personal precedents, because it alone deems applicable—and to reverse us when it does. See, e.g., Jackson Girls’s Well being Org. v. Dobbs, 597 U.S. 215 (2022), rev’g 945 F.3d 265 (fifth Cir. 2019).
Third, Choose Ho explains that the Fifth Circuit in Rahimi faithfully adopted Bruen.
That is precisely what occurred right here. We faithfully utilized the Court docket’s choice in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). See United States v. Rahimi, 61 F.4th 443 (fifth Cir. 2023). No member of our court docket disagreed with our interpretation or utility of Bruen. As one in every of our distinguished colleagues put it, our job is to not relitigate Bruen, however to “operat[e] in good religion” and “faithfully implement Bruen.” United States v. Daniels, 77 F.4th 337, 357–58 (fifth Cir. 2023) (Higginson, J., concurring).
However fourth, the SCOTUS majority modified Bruen:
The Court docket has now modified Bruen—as our choice at this time explains. See United States v. Rahimi, 602 U.S. _ (2024), rev’g 61 F.4th 443; ante, at 2 n.1.
Choose Ho additionally highlights a degree I raised on the weblog: why should a prison defendant, searching for to dismiss an indictment, deliver a facial problem to the statute? This framework, I noticed, appears inconsistent with the usual in United States v. Lopez:
I write individually to notice a second alteration to Court docket precedent. Previously, the Court docket has held unconstitutional legal guidelines that punish individuals who do not belong in federal jail—even when the defendant himself does. See, e.g., United States v. Lopez, 514 U.S. 549 (1995); see additionally United States v. Kersee, 86 F.4th 1095, 1101–02 & n.2 (fifth Cir. 2023) (Ho, J., concurring). That precept readily applies right here—victims of home violence do not belong in jail. . . .
Properly, take into account what the Court docket did in Lopez. Like Rahimi, Lopez is a harmful particular person. Lopez was paid to deliver a gun to highschool “in order that he . . . might ship it after faculty to ‘Jason,’ who deliberate to make use of it in a ‘gang conflict.'” United States v. Lopez, 2 F.3d 1342, 1345 (fifth Cir. 1993). However the Court docket however determined Lopez’s Commerce Clause problem—and held the Gun-Free College Zones Act unconstitutional—as a result of it sweeps in those that do not belong in a federal jail. See 514 U.S. at 562 (“§ 922(q) has no specific jurisdictional ingredient which could restrict its attain to a discrete set of firearm possessions that moreover have an express reference to or impact on interstate commerce.”).
The identical logic applies right here.
And it’s no reply to say that the Second Modification requires a special commonplace than the Commerce Clause or the First Modification.
As famous, Lopez concerned a declare underneath the Commerce Clause, not the Second Modification. However the Court docket has repeatedly instructed that “[t]he constitutional proper to bear arms in public for self-defense is just not ‘a second-class proper, topic to a completely completely different physique of guidelines than the opposite Invoice of Rights ensures.'” Bruen, 597 U.S. at 70 (quoting McDonald v. Metropolis of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). So our court docket dutifully determined Rahimi’s declare.
Choose Ho concludes that the Court docket might have foreclosed Rahimi from elevating this declare, however others might increase it in a future continuing:
The Supreme Court docket has now determined Rahimi. The choice doesn’t point out Lopez, and it doesn’t enable Rahimi to litigate the honest considerations expressed by numerous amici curiae, judges, students, and practitioners. It does acknowledge the “potential faults” with § 922(g)(8). 602 U.S. at _ n.2. Nevertheless it concludes that any defects have to be addressed in a future continuing.
Rahimi is an unsatisfying choice that quietly modified a two-year previous precedent. And everybody who joined that call is aware of it. Justices Barrett and Kavanaugh had been by no means totally proud of Bruen within the first place. Had it not been for the chaos brought on by the Dobbs leak, I feel the Thomas majority might need fractured. And Justice Gorsuch can’t cover behind the facial evaluation. Solely Justice Thomas was prepared to face up for the Second Modification, even when it allowed a harmful particular person like Mr. Rahimi to have a firearm.
