Columnist Bill Newman: No-holds-barred Second Amendment courts violence

By BILL NEWMAN

Published: 09-18-2023 4:14 PM

The facts are startling. In December 2019, after Zackey Rahimi and his girlfriend, identified in court papers as “CM,” got into an argument in a parking lot, Rahimi grabbed her, knocked her to the ground, dragged her back to his car and threw her inside. She escaped, but Rahimi realized that a bystander had seen all this, so he got his gun and fired at the witness. Rahimi later called CM and said that if she told anyone what happened, he’d shoot her, too.

CM went to state court and got a protective order which, among other things, prohibited Rahimi from possessing a firearm. He flaunted the order in myriad ways and perpetrated five more egregious shootings.

In federal court, Rahimi was indicted for violating the law that prohibits certain individuals subject to domestic violence protective orders from possessing a firearm. Rahimi moved to dismiss, claiming a violation of his Second Amendment rights, and in 2022, at the Fifth Circuit Court of Appeals, he won. Here’s why.

In 2008, in District of Columbia v. Heller, the Supreme Court, overruling 217 years of constitutional understanding and precedent, held that half the words in the Second Amendment, “A well-regulated militia being necessary for the security of a free state,” had no meaning or effect whatsoever. That decision created an individual right to gun ownership since the operative words became, “the right of the people to keep and bear arms shall not be abridged.”

It’s a head-spinning decision from judges who describe themselves as textualists. Textualists insist that every word in a statute or constitutional provision must be given meaning. Every single one. Heller conjures the famous passage in Lewis Carroll’s “Through the Looking Glass” where Humpty Dumpty says, “When I use a word, it means just what I choose it to mean — neither more nor less.”

Moving on. Heller applied to Washington, D.C., a federal enclave. To apply its ruling nationwide, the court needed to take one more step.

When the Constitution was ratified, its Bill of Rights applied only to the federal government. The Fourteenth Amendment’s due process clause, “No state shall … deprive any person of life, liberty, or property without due process,” changed that. Over time, the court ruled that the due process guarantee included, and thus made applicable to the states, most of the rights contained in the Bill of Rights — the most fundamental ones. This is called incorporation theory.

Following Heller in 2008, the court in 2010 decided McDonald v. Chicago, which held that the individual right to gun ownership was fundamental and thus applied through the 14th Amendment to every state, municipality and hamlet.

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Then in 2022, the court in Bruen struck down a New York state law that required good cause for a person to be issued a license to carry a firearm. There the court stated that “the Second Amendment elevates above all other interests the right of law-abiding responsible citizens to bear arms.”

Bruen’s holding of a right to possess and carry arguably could have a silver lining. Cops, when they want to stop and frisk someone, often a person of color, no longer could assert that they saw a bulge and suspected an illegal firearm in a person’s pocket and thus have carte blanche to search. They might need to find another excuse.

Which brings us to United States v. Zackey Rahimi, who won based on Bruen’s holding that a contemporary gun restriction is unconstitutional unless something like it existed when the country was founded. Because in 1791 there were no domestic violence laws that permitted the government to take away someone’s firearms, Rahimi had the right to keep his guns. So the Fifth Circuit reasoned.

My guess: The Supreme Court will not affirm. After all, Ramini threatened his girlfriend; he was afforded due process; the state court found that he posed a danger. And there are historical analogues — Colonial and early state laws that disarmed persons who were considered dangerous.

In addition, the court can’t easily ignore that people, regardless of political ideology, are fed up with gun deaths. Over half of female homicide victims are killed by a current or former male intimate partner, and most states allow disarming persons who are accused of domestic violence. The court has an unspoken but real interest in salvaging what’s left of its tarnished reputation.

But the issue is complicated. Because the Second Amendment now stands on a par with the First, granting the government broad regulatory powers over guns could carry enormous implication for traditional freedoms, like speech.

Writing a decision that carves out an exception to the Second Amendment for Rahimi-like persons and situations would both allow the court to sound responsible while allowing it to emphasize that carrying firearms in public is fundamental to America.

And certainly it is— at least to the type of country the court is constructing, the pillars being their God and gospel, corporate personhood and greed, gerrymandering and voter suppression, and, of course, guns, one case at a time.

Argument is scheduled for Nov. 7.

Bill Newman, an attorney and radio show host, lives in Northampton.

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