Post-Argument Review of the Rahimi Case

BY Herschel Smith
8 months, 2 weeks ago

Elura Nanos writing for Law & Crime.

Throughout her colloquy with the justices on behalf of the Biden administration, Prelogar spoke to the justices using their own words, missing no opportunity to argue that “historical tradition” actually favors her argument in the case.

For example, when Chief Justice John Roberts asked whether “irresponsible” or “dangerous” are too vague or subjective to be persuasive, Prelogar reminded him that she was not using the words in their colloquial sense. Rather, Prelogar argued, “history and tradition” provide a rich context for what the terms mean.

“Irresponsible” corresponds only to precedent directly related to the specific danger of gun possession, Prelogar explained.  She offered that “irresponsible” has historically been used to distinguish a person who may not be legally culpable for reasons of age or mental disability, but in whose hands a firearms would present a particular danger.

The history and tradition of the word “dangerous” also supports labeling a domestic abuser as such, she continued.

“So there’s no daylight at all then between “not responsible” and “dangerous,” pressed Justice Brett Kavanaugh.

An unwavering Prelogar answered, again quoting the justices’ own words: “Yes, that’s what history and tradition said.” She expounded, telling Kavanaugh that in the past, the Supreme Court itself has consistently interpreted those terms in just the way the Biden administration urges it to do now.

Justice Amy Coney Barrett joined the conversation to raise an interpretive question of her own.

“So it’s not a synonym for ‘virtue,’” queried Barrett about the term “responsible.”

Prelogar bluntly rejected Barrett’s suggestion and said the term is clearly linked to dangerousness with firearms, and not to amorphous concepts of responsibility.

In addition to figuratively meeting the conservative justices where they were on the matter of “historical tradition,” Prelogar also offered an alternative take on the framework set out by Thomas in Bruen. Throughout her argument, the solicitor general argued that history and tradition are perhaps not the stalwart beacons of freedom the conservative majority has held them up to be.

Prelogar made a glaring point, beginning with Thomas as her primary audience: A look into the nation’s history and tradition, she argued, reveals that the Second Amendment was meant not to apply to entire groups of people, and slaves and Native Americans were excluded. The theme reemerged several times throughout the nearly two hours of oral arguments. In the founding era, such categories of people were not considered to be “among the people protected by the Second Amendment,” and generally stripped of other rights as well, Prelogar contextualized, denouncing the inequality as “odious.”

Justice Ketanji Brown Jackson later suggested, “Is there a flaw with history and tradition? Are we only considering history of some of the people?”

Prelogar also cleverly worked in a key debate point about “historical tradition” in a round of questions from Thomas. When the conservative justice, often known for skepticism about overreaching administrative power,  asked Prelogar whether she would change her position if Rahimi had been the subject of an administrative order, as opposed to a civil order, Prelogar again used some of the justice’s own logic in her argument. She responded that an administrative determination would be different, but that more modern American law supports the distinction — as contrasted with “historical”  (or English) legal principles.

When Jackson questioned Prelogar, she raised yet another key point with respect to the role of “historical tradition” in the context of gun rights for domestic abusers. The justice, making a key point to the conservative majority via question to Prelogar, noted that historically, men — including domestic abusers — were not perceived as “dangerous” from a standpoint of disarmament.

“Unwavering.”  “Bluntly.”  “Cleverly.”  Ms. Nanos is engaging in some hero worship and hopeful projection here.  That’s not at all what happened in the Rahimi arguments.  I think she fails to grok the gravity of what happened during the arguments and Q&A.

I wanted to let the dust settle on this before I weighed in.  As for my opinion, briefly, I agree with the Fifth Circuit’s ruling on this.  There was nothing incomplete or wrong with it.  In fact, it correctly concludes that oftentimes, the claimed offended party is the one who is being placed in a position of increased danger if in fact the claims of abuse or danger are correct and truthful, since many times restraining orders of the kind dealt with in Rahimi apply to both parties.  She can’t have a weapon of any kind either.  The Fifth Circuit brought that very point up.

But here we are at the supreme court hearing arguments, so it’s better to focus on what happened.  Ms. Nanos is likely very wrong about where this will go.  Ms. Prelogar, in invoking history and tradition, further endorsed the Heller/Bruen methodology of text first, burden being placed on the government if a case “touches fingers” with the second amendment, and then appeal to the laws at the time of the founding.  It may be true that there were such laws in place at the time of the founding – and Rahimi may lose his case on the question of facial unconstitutionality of the statute.

But that’s not even nearly all that happened.  She constantly conflated the notions of “dangerous” and “irresponsible,” and repeatedly contradicted herself in her answers.  In fact, questions from Roberts and Barrett focused on that very issue, with both of them repeating the question to make sure of her answer (likely speaking to fellow justices in the process).  Ms. Prelogar lost both Barrett and Roberts during the arguments as can he detected from the questions.  If the DOJ had focused on the facial constitutionality of the statue in question, she would have won and that would be the end of it.

As it currently stands, the supreme court is much more likely to make it clear in their ruling that someone who has been deemed “irresponsible” doesn’t fall under any such statute.  And in fact, it makes them much more likely to take up the Range v. Garland case just to make it clear that non-violent felons (and other “irresponsible” people) don’t lose their rights.

The state would love nothing better than to be able to remove second amendment rights of anyone they deem to be irresponsible, e.g., social media bad words, don’t like vaccine mandates, don’t like forcible mask mandates, don’t like tyrannical governments, etc., well then, too bad for you but you lose your rights.  That’s what Ms. Prelogar was arguing for.  She didn’t get it.  No decision which lacks the support of Roberts and Barrett will prevail.

If you don’t believe me, listen to Mark Smith, who analyzes the case better than I can.  Right after that, listen to Langley Outdoors Academy where I think he does the best breakdown of the Q&A of anyone I’ve heard.  So, listen to Mark for the legal analysis, and Langley for an expose of the Q&A on which Mark’s analysis is based.  Then you might want to watch Washington Gun Law where his analysis basically agrees with Mark’s.  None of this dovetails with Ms. Nanos’ presentation, but what do you expect from a rag like Law & Crime?


  1. On November 8, 2023 at 10:30 pm, X said:

    “Prelogar made a glaring point, beginning with Thomas as her primary audience: A look into the nation’s history and tradition, she argued, reveals that the Second Amendment was meant not to apply to entire groups of people, and slaves and Native Americans were excluded. The theme reemerged several times throughout the nearly two hours of oral arguments. In the founding era, such categories of people were not considered to be “among the people protected by the Second Amendment,” and generally stripped of other rights as well, Prelogar contextualized, denouncing the inequality as “odious.”

    –This is perhaps one of the dumbest things I have ever read. It is pure 100% idiotic sophistry and why I can no longer take “the law” or lawyers seriously.

    The pre-14th Amendment Bill of Rights did not prohibit states from infringing on individual rights, only Congress.

    She defends the present infringement on the Second Amendment by saying that since Negroes and Indians were disarmed prior to the 14th Amendment, it is OK to disarm people today. She then calls the past disarmament of Negroes and Indians “odious” while arguing that the government has a right to continue disarming people it does not like.

    I am inclined to say something obscene, vulgar and misogynistic about her but I had best refrain in order to maintain decorum in Herschel’s page.

    Besides, this entire case is not really about the Second Amendment… it is about the denial of Rahimi’s rights without due process as guaranteed by the Fifth and Fourteenth Amendments.

    When the blind leadeth the blind…

  2. On November 8, 2023 at 11:08 pm, Herschel Smith said:

    “Besides, this entire case is not really about the Second Amendment… it is about the denial of Rahimi’s rights without due process as guaranteed by the Fifth and Fourteenth Amendments.”

    The problem as Mark pointed out is that his lawyers never raised that issue. The court won’t address an issue that wasn’t raised. His lawyers took this to court over 2A grounds.

    So that may be the case in a nutshell to you or to me, but it wasn’t to the court.

  3. On November 10, 2023 at 10:15 am, X said:

    Yes, point taken.

    But there is a fundamental problem with almost all constitutional law that escapes the attention of nearly everyone, including the courts, and it is this: the “United States” was founded as a federated republic of STATES. The Bill of Rights of 1791 placed limits on the newly created federal Congress as a concession to the objections of the anti-federalists in the ratification debates. But the authors of the Bill of Rights thought it was largely redundant. The rights you did or did not have were defined by your respective state constitutions.

    But the federal government became a monster that ate the very states that created it by 1865, and then it rewrote the constitution to establish dominionover the states.

    The point is that looking at the antebellum “history and tradition” of the Second Amendment is a dead end, because it was literally a different country then — a “nation of states” as historian Forrest McDonald put it.

    People need to start thinking of the Civil War as a second American revolution, because that is exactly what it was. The power structure became inverted 180 degrees from a nation of states to a centralized federal government with control over the states.

    If one is going to apply the literal text of the 1791 Second Amendment today, there are NO gun laws that are permissible whatsoever, because the amendment does nor recognize ANY limitations. Of course the courts are unwilling to do that because then they would have to strike down the NFA, the GCA, and the Brady law.

    But that 1791 text was intended to only prevent Congress from enacting any limits, not the states.

    The courts cannot square this circle without resorting to non-textual legal sophistry.

  4. On November 10, 2023 at 9:45 pm, Wretched Dog said:

    “A look into the nation’s history and tradition, she argued, reveals that the Second Amendment was meant not to apply to entire groups of people, and slaves and Native Americans were excluded.”

    Because they weren’t US or State citizens in the founding era. Duh.

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This article is filed under the category(s) Second Amendment and was published November 8th, 2023 by Herschel Smith.

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