Judge James Ho’s Revised Concurrence in the Second Amendment / Restraining Order Case
Yesterday, the Fifth Circuit released an updated version of its opinion in U.S. v. Rahimi, which held that people can’t be disarmed just based on a civil restraining order. The changes to the majority are comparatively minor, but Judge Ho used the release of the new opinion as an occasion to put out a substantially enlarged version of his concurrence, which I thought was worth passing along:
The right to keep and bear arms has long been recognized as a fundamental civil right. Blackstone saw it as an essential component of “‘the natural right'” to “‘self-preservation and defence.'”And the Supreme Court has repeatedly analogized the Second Amendment to other constitutional rights guaranteed to every American. See, e.g., Johnson v. Eisentrager (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the “civil-rights Amendments”); Konigsberg v. State Bar of Cal. (1961) (comparing “the commands of the First Amendment” to “the equally unqualified command of the Second Amendment”); N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) (quoting Konigsberg).
But lower courts have routinely ignored these principles, treating the Second Amendment as “a second-class right.” So the Supreme Court has now commanded lower courts to be more forceful guardians of the right to keep and bear arms, by establishing a new framework for lower courts to apply under the Second Amendment.
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” “The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” “[T]his historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar.'”This framework “is neither a regulatory straightjacket nor a regulatory blank check.” It requires the government to “identify a well-established and representative historical analogue, not a historical twin.“
Our court’s decision today dutifully applies Bruen, and I join it in full. I write separately to explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals. Our Founders firmly believed in both the fundamental right to keep and bear arms and the fundamental role of government in combating violent crime.
[I.] “[T]he right to keep and bear arms … has controversial public safety implications.” But it’s hardly “the only constitutional right” that does. To the contrary, “[a]ll of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.”
So any legal framework that involves any of these constitutional provisions can have significant and controversial public safety consequences. A framework that under-protects a right unduly deprives citizens of liberty. But a framework that over-protects a right unduly deprives citizens of competing interests like public safety.
Take, for example, the exclusionary rule. See Mapp v. Ohio (1961). Since its inception, the rule has been sharply criticized for over-protecting the accused and releasing dangerous criminals into our neighborhoods. It’s often said that nothing in the Constitution requires the criminal to “go free because the constable has blundered.” “The exclusionary rule generates substantial social costs” by “setting the guilty free and the dangerous at large.”
The same can be said about Miranda v. Arizona (1966). The Supreme Court has “repeatedly referred to the Miranda warnings as ‘prophylactic’ and ‘not themselves rights protected by the Constitution.'”What’s more, “[i]n some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”
So it’s easy to see why decisions like Mapp and Miranda have been criticized for over-protecting constitutional rights and harming pub
Article from Reason.com
