And that brings me to the second missing ingredient in the briefs supporting Rahimi: the Second Amendment itself. I don’t mean that the Second Amendment is missing from every brief; a brief from the Foundation for Moral Law and signed by, among others, Roy S. Moore, the former Alabama chief justice who founded the organization, calls the Fifth Circuit’s decision “a thorough and faithful application of the founders’ original understanding of the Second Amendment’s right to bear arms.” He declared that “the founders who ratified the Constitution on behalf of their respective states would never have tolerated such a restriction.”
But a number of other briefs in support of Mr. Rahimi, after mentioning the Second Amendment in passing, pivot quickly to what they present as a separate ground for striking down Section 922(g)(8): due process. The Cato Institute, a libertarian organization that played a prominent role in the litigation that led the Supreme Court to declare an individual right to gun ownership in the 2008 Heller decision, argues in the first section of its brief that “Section 922(g)(8) fails to ensure that gun owners receive sufficient predeprivation process before their Second Amendment rights are suspended.” While the law requires that gun owners receive notice and the opportunity to participate in the hearing that will determine the consequences of the protective order, it does not provide a lawyer or set a specific standard of proof.
That is not surprising, the Cato brief notes, because when Section 922(g)(8) was enacted, there was no recognized right to individual gun ownership in the first place. The National Rifle Association asserts in its brief that “the court would not allow any other fundamental right (voting, worship, search and seizure, interstate travel, parenting and procreating, marriage, speech, self-incrimination, trial by jury, etc.) to be deprived through such minimal process.”
Other briefs in support of Mr. Rahimi take issue with the nature of protective orders themselves. They are too easy to get and don’t require specific findings of dangerousness, several criminal defense organizations argue; moreover, they can be used as bargaining chips in divorce cases. These briefs play off a concurring opinion in the Fifth Circuit’s Rahimi decision by Judge James Ho, who described civil protective orders as “a tempting target for abuse,” too often issued automatically by family-court judges in the absence of evidence of a real threat of violence.
When I first read Judge Ho’s opinion, I regarded it as an odd digression from the matter at hand, namely how to interpret and apply the Second Amendment. But so many briefs cite the opinion that I now see it — and the due process argument that it relates to — as a possible route for justices who want to strike down Section 922(g)(8) without shouldering the opprobrium that Mr. Abbott, Mr. Cruz and other absent officeholders apparently are seeking to avoid by their silence. Does even this trigger-happy Supreme Court want to be seen as stripping from women in mortal danger from their intimate partners whatever safety this 29-year-old law has provided? Maybe a justice or two in the six-member Bruen majority would rather be seen in the Rahimi context as standing up for due process than for domestic abusers.