On November 7, the Supreme Court will hear oral argument in the only Second Amendment merits case this term, United States v. Rahimi. (Docket page.) In that case, twenty-one amicus briefs urged the Court to affirm the Fifth Circuit's decision. On October 25, the Solicitor General, who is asking the Supreme Court to overturn the Fifth Circuit, filed its reply brief. The reply brief addresses only a single one of the amici briefs, namely the one that I coauthored; the amici included the VC's Randy Barnett. Because the Solicitor General considered that amicus brief important enough to address, I thought that readers might be interested in some further analysis. In my view, the SG brief fails to address the unique constitutional infirmity of one of the statutory sections at issue.
Rahimi involves 18 U.S.C. 922(g)(8), which imposes a prison sentence of up to 15 years for firearm possession by everyone subject to certain domestic restraining orders. In the amicus brief, we wrote:
The statute bans firearms possession based on two different types of court orders:
"(C)(i) includes a finding that such person represents a credible threat to the physi-
cal safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;"Because (C)(i) requires a judicial finding of dangerousness, it does not infringe the Second Amendment. Subsection (C)(ii) does not require such a finding and is an infringement. Judicial orders that acrimonious domestic parties not do something illegal in the future is not equivalent to a judicial finding that there is "a credible threat" of illegal behavior. Congress could easily fix the problem by changing the "or" at the end of (C)(i) to "and." Alternatively, subsection (C)(ii) could be severed.
