Some Takeaways from Today’s Rahimi Second Amendment Opinions
A few practical thoughts for future cases (all bold emphasis added):
[1.] The Court solidly accepts (with only Justice Thomas dissenting) that “the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others,” at least after a judicial finding of such threat. That judicial finding can be in a civil case, and without proof beyond a reasonable doubt.
[2.] The majority opinion is likely to add force to arguments for the constitutionality of so-called “red flag” laws, which empower courts to order seizure of firearms from people when there is sufficient specific, articulable evidence that those people are dangerous (generally for mental-health-related reasons). Of course, much will depend on the details of the particular laws.
[3.] The decision, however, does not validate all restraining order statutes. Consider, for instance, California Code of Civil Procedure § 527.6; that statute authorizes “harassment restraining orders” based on “clear and convincing evidence” of “harassment,” which includes not just “unlawful violence” or “a credible threat of violence,” but also (emphasis added)
a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.
{“Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”}
Courts have sometimes issued such harassment restraining orders based just on repeated online public criticism, or other offensive speech, with no findings of “credible threat to the physical safety of others.” (See the recent post on Adams v. Gulley, California Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial.) And California law categorically mandates that “The court shall order a person subject to a protective order issued pursuant to this section to relinquish any firearms” (as indeed happened in Adams v. Gulley). Such orders, issu
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