Rahimi Decision: The Clarence Thomas Dissent

Justice Clarence Thomas has written a wonderful dissent in the Rahimi case, released on June 21, 2024, almost exactly two years after the clear and well written Bruen opinion.

The Rahimi opinion has been released by the Supreme Court. It is an eight to one decision with Justice Clarence Thomas dissenting. In spite of the terrible facts and unsympathetic defendant in the case, Rahimi was not a significant win for those who want the American population disarmed. It was a very narrow decision, based on the narrow facts of the case, so the opinion while not wonderful, is not as damaging as some think. The Supreme Court opinion, written by Chief Justice Roberts, is narrow, as applied to the Rahimi case. It is extremely limited.  From the opinion, page 1:

Held: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. Pp. 5–17.

(a) Since the Founding, the Nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms. As applied to the facts here, Section 922(g)(8) fits within this tradition.

Justice Clarence Thomas may be the most well reasoned and disciplined Justice on the Supreme Court. In his dissenting opinion on Rahimi, Thomas shows the weakness in the majority opinion. His dissent gives Constitutionalists and Originalists a roadmap of how to argue decisions on other cases going forward, including future challenges to the ban on guns coming from domestic violence restraining orders, indeed from the entire Lautenberg Amendment disaster.

Justice Thomas makes clear there is no historical tradition of firearms regulation is consistent with U. S. C. §922(g)(8). From the Dissent, page 1: 

A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18U. S. C. §922(g)(8).

Justice Thomas shows how  18 U. S. C. §922(g)(8) indiscriminately bans numerous individuals from possessing firearms, without due process. From the Dissent:

In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process.1

Justice Thomas shows the various historical statutes used in the majority opinion do not fit 18 U. S. C. §922(g)(8), starting on page 7 of the Dissent:

The Government does not offer a single historical regulation that is relevantly similar to §922(g)(8). As the Court has explained, the “central considerations” when comparing modern and historical regulations are whether the regulations “impose a comparable burden” that is “comparably justified.” Id., at 29. The Government offers only two categories of evidence that are even within the ballpark of §922(g)(8)’s burden and justification: English laws disarming persons “dangerous” to the peace of the kingdom, and commentary discussing peaceable citizens bearing arms. Neither category ultimately does the job.

Justice Thomas explains how the majority opinion threatens the Second Amendment on page 31 of the Dissent:

The Court rightly rejects the Government’s approach by concluding that any modern regulation must be justified by specific historical regulations. See ante, at 10–15. But, the Court should remain wary of any theory in the future that would exchange the Second Amendment’s boundary line—“the right of the people to keep and bear Arms, shall not be infringed”—for vague (and dubious) principles with contours defined by whoever happens to be in power.

On the same page, Justice Thomas explains why the Rahimi case is not about Rahimi as an individual, but about protecting Second Amendment rights from encroachment. He notes Rahimi could have been effectively disarmed using several other processes, particularly criminal statutes. From the Dissent:

 This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, includingTexas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment. See Tex. Penal Code Ann. §§22.02(b), 12.33 (West 2019 and Supp. 2023). Assuming C. M.’s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of any-one subject to a protective order—even if he has never been accused or convicted of a crime.

Justice Thomas’ arguments in the dissent are persuasive. Unfortunately, eight other Justices found the facts of the particular Rahimi case to be more persuasive of the necessity of temporarily disarming Rahimi. Hard cases make bad law, as they say. To mitigate the damage which Justice Thomas so eloquently warns of, the majority opinion is severely limited. Here are the limits put in place on the applicability of the Rahimi opinion, going forward:

1. The opinion is limited as applied to the Rahimi case, and no others.

2. The Opinion is limited to determining if all cases, in all instances under 18 U. S. C. §922(g)(8) are always unconstitutional. The Opinion does not rule out the possibility major portions of 18 U. S. C. §922(g)(8) are unconstitutional, and may be found to be so in future cases.

3. The Opinion only applies to Section 922(g)(8)(C)(i). It does not apply to the rest of the  18 U. S. C. §922(g)(8), which allows for constitutional challenges to those areas.

4. The Opinion keeps the Bruen test in place as the means of judging Second Amendment cases, including future challenges to other parts of 18 U. S. C. §922(g)(8).

5. The Opinion did not deal with due process issues.  Those are left for future decisions. Due process was acknowledged to be important, but not in the Rahimi case. Rahimi did not contest the facts in the restraining order, or contest the restraining order.

Analysis: While this correspondent would have preferred Justice Thomas’ dissent to be the majority opinion, it was not to be. The majority opinion is not an unmitigated disaster for Constitutionalists and Originalists.  It upholds Bruen and leaves the door open for several pending cases to clarify and restore more rights protected by the Second Amendment where states are defying the Supreme Court ruling in Bruen. This correspondent believes Mark Smith makes a compelling case Rahimi is a win for the Second Amendment and the Bill of Rights.

 ©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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