by Brittany Huttner and Racheal Moss
Rachel Moss (00:00):
Should domestic violence offenders be allowed to have firearms? Should 18 year olds be allowed to have firearms all? Listen more on today's two, a roundup.
Brittany Huttner (00:13):
Hello, my name is Attorney Rachel Moss and I'm here with attorney Brittany Hunter. We're here with another episode of two a Roundup. Today we're going to start out strong and we kind of have a Bruin themed episode today. So normally in two a roundup we cover everything from the local Second Amendment related decisions all the way up to Supreme Court decisions. But today we have a lot to talk about regarding the Supreme Court decision, United States versus Bruin. So after Bruin happened, there's been a lot of case law in various courts throughout the country kind of deciphering what the Bruin decision really means. The first one today that we're going to talk about is another United States Supreme Court decision, United States versus Rahimi. This is a very interesting decision because I think it kind of signals how the court may go in the future with other Bruin related issues.
Brittany Huttner (01:02):
So the holding of Rahimi basically comes down to the fact that people that are subject to domestic violence restraining orders may have their gun rights taken away while that order is in effect. So this case basically came around because there was this individual, Zach Rahimi, he was later indicted under United States Code Section 9 22 G eight, and this is the code that restricts domestic violence offenders who are subject to a restraining order from possessing a gun, basically because they're found to be a credible threat to safety. And so here Rahimi brought this lawsuit saying that this statute is unconstitutional because it violates the Second Amendment specifically citing the Bruin test. So the Bruin test requires first that the court finds if the individual bringing that petition falls under the text of the second Amendment, and then after that they analyze whether or not that behavior was similarly restricted by a historical analog.
Brittany Huttner (02:05):
So basically the court has to go back and look at old nation's laws from the founding era to determine in our nation's history, is there a law that restricts this firearm, right? Essentially. So Rahimi was asking the court to do that. So it's the government's burden to provide that historical analog. And so in this case, specifically the United States Supreme Court found that yes, we can restrict domestic violence offenders when there's a restraining order against them from possessing a firearm during the length of that restraining order. So this was the Supreme Court's decision. So Brittany, do you have any initial thoughts on this decision?
Rachel Moss (02:45):
Yeah, I do. So now the standard, like you said, is this new standard and it is whether or not it is in the historical tradition of firearm regulation. And I think that's interesting because we look back to common law and the founding fathers and what they really intended to do and what the laws in that time looked like. Who did they take firearms from? And I think that's interesting because a lot of times we see that in the past where they take firearms from somebody who the king was afraid of overthrowing the government or rebellion or something like that. And that's completely different than if somebody's a threat to society or to their neighbor. What the court did then was to look back at the founding laws and also before that, so in the Kings and Parliament era, the two laws that the court looked to analyze whether or not this law was similar to it is the surety laws and the going armed laws. And I think that's interesting because surety laws were basically a promise to behave well in the future. And if you weren't able to do that, then you would get fined.
Brittany Huttner (03:50):
Yeah, it was interesting. They actually required people to post a bond upfront knowing that if you failed to post the bond, you would go to jail. Basically they looked to you and said, Hey, you're someone that might cause trouble in the future and because you might cause trouble in the future, we're going to require you to post that bond. If you're like, Nope, I'm not going to post that bond, then we throw you in jail. If you do post the bond and then you do cause that trouble that we were suspecting you would cause, then you forfeit that bond. I actually think that's kind of a crazy law if that was in effect today, I do not think people would love this law, but it was a law that we historically had in this country around that founding era. So when this court's looking back at these surety laws, they can look back and say, these serve as a sufficient historical
Rachel Moss (04:34):
Analog. And so it's interesting though because the surety, like you said, doesn't mean that you're going to go to jail if you post the money you forfeit that money that you posted. They didn't necessarily take away their firearms from what I can tell. Right. So I think it's interesting that yes, they were punished but it was a different punishment. And that's one of the things that the dissent mentions too, is that you had a different punishment from doing something that the government thought was bad.
Brittany Huttner (04:58):
Exactly. And so this was a decision by the United States Supreme Court where Chief Justice Roberts wrote the opinion and this decision and you just referenced the dissent, which was referenced by Justice Clarence Thomas. And actually when there's a Second Amendment opinion, I love it to be written by Clarence Thomas. So the fact that he's writing the dissent here, I feel like I want to pay extra attention to what he has to say because usually I find he's spot on when honoring what the gun community wants. But this is I think a really interesting case because I think most people have this feeling that if they know someone could present a danger to them, they don't really want them to have a firearm. But I think what Justice Thomas is saying is he's not saying dangerous people should be allowed to have a firearm. I think he's respecting the fact that he really wants there to be a really set process because he specifically noted that in these surety laws or in these going armed laws that he referenced, and specifically in this case these laws where you can take away someone's gun rights if there's that domestic violence restraining order, you do not have the same protections that you would in a criminal court case.
Brittany Huttner (06:10):
In a criminal court case. You have certain constitutional protections, the sixth Amendment, other amendments. So for example, you have the right to counsel and things like that. The right to confront your witnesses.
Rachel Moss (06:20):
And why it's different too is because rahimi, he actually did not. So part of this law is that to be able to take away a firearm, you have to give notice of a hearing and you can have hearing. Now, he decided not to speak at this hearing, which was smart. In our cases, we always tell clients if we think that there could be a criminal case against you, do not testify, do not fight the order of protection, the injunction against harassment, whatever it is, because whatever you say can and will be held against you in the criminal case. And he did that here too. So he wanted to protect him criminally and he could have been negatively affected by not speaking at the hearing. And so it's kind of like a damned if you do, damned if you don't, you're kind of a rock suck in a hard place there because that probably was the best decision. Who knows though if he did take the stand or if he did testify how that hearing could have ended?
Brittany Huttner (07:13):
Exactly. And the burden of proof in these types of cases are usually not the same as a criminal case as well. So I think Thomas is considering the fact that if Rahimi had gone through a criminal case and he was found to be a felon and he was sentenced to some sort of felony sentence, either being probation or an imprisonment and then taken his gun rights would be taken away as a result that would be through a beyond a reasonable doubt process, he would need to be found guilty beyond a reasonable doubt in order for that to happen. However, in these hearings, at least in Arizona are similar restraining order hearings have a much lower standard. It's preponderance of the evidence that just means more likely than not kind of a casual way to refer to it as 50% and a feathers weight more as they love to tell us in law school plus the feather plus the feathers weight more.
Brittany Huttner (08:07):
And so that's a much lower burden than beyond a reasonable doubt. So I think Thomas is saying yes, we do have an interest in making sure people kind of in this general category do not have firearms, but we need to make sure we're really sure about it. It kind of goes back to our nation's values about presumption of innocence. However, the test here is the historical analog and I think you can see here where reasonable minds can kind of differ about what is a historical analog and what a historical analog means. So here the majority clearly has found that surety laws and going armed laws are sufficient as a historical analog. So do you have any feelings? Do you think that the majority made the right decision on these being historical analogs
Rachel Moss (08:51):
In this decision? I don't know if they really showcase the correct laws that they could have because they talked about the going armed laws again and going armed basically means it was illegal to create havoc in the streets. Again, yes, that is the way it is today, but that doesn't mean that it doesn't go to the root of the question of whether or not the person should have their firearm rights taken away if they did something similar. And again, going armed, to me that means more criminal right now. I think it's interesting though because when you talk about looking back at historical analogs, we look to sometimes things that we did that were better now that we don't do. So one of the things that we used to do was disarm political opponents don't believe we should do that. One of the things that they also did was disarm disfavored. Religious groups also don't think that we should do that. Those were more not based on threat or dangerousness just based on the dislike of those people or scared that they were going to overturn the government. So I think it's interesting. The other thing too is being a female, you think too what types of rights women had back then. And so I always get somewhat a little nervous when we look back to historical traditions where I think we're better off now as a country that we don't do these things.
Brittany Huttner (10:05):
And I think that kind of goes back to why the majority made this decision because the Fifth Circuit actually found that this law was unconstitutional. So here the Supreme Court reversed it and they made the point that the Fifth Circuit was really looking for a historical twin as they put it. So they wanted their historical analog to be pretty much exactly the same. Where here the Supreme Court is saying no, it doesn't have to be a historical twin, it just has to be relevantly similar. And so diving into what that means I think opens up another can of worms. And you see where the justices differ on what is a relevantly similar law or not. So a little bit of this decision looks like they have to feel out the intention behind the law, the how and the why of the law is what they go into and how they make that decision.
Brittany Huttner (10:53):
So this is one of those instances where actually each member of the court is applying the same test using the same knowledge of relevantly, similar analyzing the how and the why and coming to a different conclusion. So the majority was most of the justices obviously, and then there's Thomas being the one dissenter here. And if you look at all of the concurrences, they all agree that that's the test because sometimes when you look at concurrences to sense, they get into arguing about what the test itself is. No, they all agree with the test and they actually all think it's a good test. I think it was Gorsuch who actually emphasized the importance of going back to the Constitution's original meaning he thinks there's no perfect test, but that's probably the best test we could have. And Thomas even thinks it's a good idea to look back at the historical analog.
Brittany Huttner (11:44):
But the idea is what is relevantly similar? And Thomas makes that argument that we were kind of touching on with the surety laws of is this relevantly similar or not? And I have to say this is one of those instances where I do not envy the Supreme Court reading the majority's decision, and I say, I understand where they're coming from. While surety laws and going armed laws are not the exact same thing as what we're facing today with these domestic violence restraining orders. They are similar. They target the similar hows and similar whys. But then I get to Thomas where he points out all the differences and he really also dives into the how and why and why he disagrees. And I can kind of see both sides of this decision. So I think actually this is kind of wild for me to say because usually she's not the justice I praise for her opinions, but Justice Jackson here, she makes the point that the lower courts have been struggling with interpreting Bruin and she mentions some of the splits we're seeing across the country, and I think we'll get into this more in a second, but different circuits, different local courts are analyzing Bruin, making interpretations, and you're seeing different interpretations throughout the country.
Brittany Huttner (12:52):
So eventually these interpretations will be appealed and likely reconciled through circuit decisions or through Supreme Court decisions. But Brown really emphasizes the fact that maybe the Supreme Court didn't make a clear test here and maybe there's a lot of room for interpretation to continue. Definitely. And she points out that it's their responsibility to keep an eye on their test
Rachel Moss (13:14):
Here. I agree. And I do think because the test is so open and we haven't seen much litigation in the Supreme Court since Bruin, that you almost wonder is different facts going to change or different criminal offenses, so many criminal offenses and not all are created equal. And so it's interesting what offense will qualify for this or will all criminal offenses we talk about for prohibitive possessors and felons right now you can have a financial crime and not be able to possess a firearm. Well under Bruin, just speaking out loud here, it's kind of interesting because they might not be dangerous. They committed a financial or white collar crime, but they're still a felon if right now they don't have firearm rights, can we see that change in the future because they don't pose that dangerousness to society?
Brittany Huttner (14:07):
Absolutely. I think this you hit on what is so ripe for challenge right here is will felons be able to argue that it is unconstitutional for them to be denied their firearm rights just because they have a felony conviction on their record? And I think Rahimi is kind of setting the stage actually for that challenge. And at first glance you might say, Hey, this actually seems bad for felons because they just said that domestic violence offenders cannot have their firearm rights while they're subject to a domestic violence restraining order. And that's the key. While they're subject to the order, the court makes it clear this is not a forever restriction, it's just while this order is in place
Rachel Moss (14:45):
And specifically domestic violence, that's what a domestic violence restraining order is now doesn't touch on the fact if it's me versus you, it doesn't touch on the fact that if it's non-dangerous, just the title as a felon, right? There's so many crimes that qualify as a felony here and not all are dangerous.
Brittany Huttner (15:05):
So there's this term dangerous under the law and different states have different meanings. But well, let's touch on Arizona since this is where we practice. So in Arizona there's actually a prohibition against people convicted of dangerous offenses from having firearms forever. So it's a permanent restriction here. And I think it's this decision right here that actually helps these people convicted of dangerous offenses have an argument for why that law is unconstitutional. I think they can use Bruin, they can use Rahimi to say, look, the Supreme Court said it is constitutional to restrict us temporarily while the restraining orders in effect. So if felons not going to have a restraining order against them, they're going to have some sort of punishment
Rachel Moss (15:46):
Probation
Brittany Huttner (15:47):
Thing, probation or prison. But after they serve their sentence, they really cite throughout this case if someone's a credible threat to safety. There are many, many dangerous offenders I have met in the state of Arizona that were convicted of something 20, 30 years ago, and no one would look at them and say they're a credible threat to society. So if they're not a credible threat to society, is there that historical analog and should they be able to get their gun rights back at some point?
Rachel Moss (16:17):
And how long do you have to prove yourself? So in Rahimi, he was on a current domestic violence restraining order that could be something like we can analog that to probation while somebody's on probation, they're not allowed in most states to have firearms for felony probation. Now what happens when you get off of probation or even when you're off of probation, how long do you have to show that you're not dangerous or not going to cause harm on the community or your neighbor before you can get your firearm rights back and every state's different. And so I am wondering even with states with longer waiting periods to apply for a set aside or your rights restored if that could be a challenge or can it be a challenge while you're on probation, but right when you're off probation you can try and challenge it. So it opens the door to so many things that we don't have the interest to. And I think it's exciting because this is, at least with me going to law school, you talk about all the standards and then all of a sudden there's different standards. And now I can think of so many different scenarios where this could be a Supreme Court litigation
Brittany Huttner (17:22):
Frenzy like you, I'm really excited just to see what's going to happen next. But I think importantly here, we're not trying to comment on whether or not, or you personally think that people subject to domestic violence restraining order should have firearms. We're really trying to decide did the court make the right decision based on prior case law and applying this test properly? And I think this is a close call, I think the way the majority worded their opinion, I didn't see anything that was so contrary to prior case law that I have to say they made the wrong decision. But I do see a lot of valid points in Thomas's dissent. So this is something that I think as we continue to see more case law come out, we'll get a much clearer idea of what that relevantly similar provision in Bruin really refers to.
Rachel Moss (18:08):
Absolutely. It's exciting. Yeah. So let's talk about another state that is currently seeing challenges based on Bruin. Recently the eighth circuit decided that Minnesota's old concealed carry statute was unconstitutional based on Bruin. So I think that's really exciting for Minnesota. So in Minnesota you had to have a permit to carry a firearm and there were a lot of requirements. One of them being that you must be 21 years or older, you must complete the application form. You must not be prohibited from possessing a firearm under the slew of statutes that prohibit you from, you must not be listed in the criminal gang investigation system and then you must have completed a training course. Now, this lawsuit was solely based on the fact that only 21 and older individuals can apply for a concealed carry permit. The court ruled that requiring somebody to be 21 years or older to apply for this was unconstitutional because 18 year olds fall under the people that the Second Amendment covers. The test was basically a two part test. So first, like we said in the first case with for Hemi, the court had to decide if 18, 19, 20, 20 year olds fall under the people that the Second Amendment covers. And then the second question was, is this law consistent with the country's historical tradition of firearm regulation? So the same standard that was in Rahe,
Brittany Huttner (19:27):
It's interesting. So Minnesota was actually, the state of Minnesota was actually arguing against the fact that the 18 to 20 year olds should fall under the people. And I find that a little funny, but the court really sided back to other Supreme Court precedent here. So in DC versus Heller, there was a decision found that the people refers to people in the political community. And so here the court found that 18 to 20 year olds are part of that political community. So of course they're part of the people, but some of the arguments against this are kind of funny. For example, Minnesota actually argued against 18 to 20 year olds here having their right to carry because of a status based restriction. They cited back to old laws here laws that said if a group poses a danger, then you can take away their second amendment rights.
Brittany Huttner (20:18):
And so they argued that 18 to 20 year olds are just more dangerous than other people. So watch out if you have an 18 to 20-year-old in your home, might be a dangerous situation here. But no, that's ridiculous. No one walks around and sees an 18-year-old and automatically thinks, okay, I got to be careful. I'm in a dangerous situation right now. So I actually thought Minnesota's argument was a little bit laughable here, and I think the court made the right decision in interpreting that 18 to 20 year olds fall into the people. The other thing that the
Rachel Moss (20:46):
Court mentions is that there's no qualifiers in the second amendment. It says the people, it doesn't say an age. And so the court looked back to the founders of almost looking for the founder's intent and they saw that obviously you have to be 35 years or older to become president and you have to be 30 years or older to run for the Senate or sit in the Senate. And so they said, well, the founding Fathers thought about age because that's listed in other things and that's not listed in the Second Amendment. There was no qualifiers with the age. And I think that was a great argument because it's clear that they thought the people included everybody even though they put other qualifiers on other requirements and rights that you have as a United States citizen.
Brittany Huttner (21:28):
Exactly. So I think the court did the right thing here in interpreting Bruin and going back to Rahimi where it was a much more difficult decision analyzing whether people subject to domestic violence restraining orders should lose their firearm rights. Here, I think it's a much clear cut case because it's easy to find that 18 to 20 year olds are part of the people, they're part of the political community, they can vote, they can serve in the military, and then finding if there's a historical analog here, there was just no clear historical analog. The court found that the state did not meet their burden here. There is a petition for a rehearing being submitted by Minnesota right now. So I don't know if the eighth circuit is going to rehear the case. They're basically asking that the case be heard with the full panel of judges rather than a three judge panel as this case was heard previously. So I'm interested to see if the petition for rehearing is granted or denied and if so, if there's any plans to appeal to the Supreme Court.
Rachel Moss (22:28):
Yeah, I think it's also kind of funny to think about how the state of Minnesota says it's too dangerous, 18-year-old, 18 through 22 dangerous, but you can drive a dangerous instrument and that being a car at 16, so even though that qualifies as a dangerous instrument, at least in Arizona, and so you can drive that at 16, you are responsible enough to not drive with a parent after you pass a test at 16, but you cannot carry a firearm for personal protection. And I think that's kind of funny too when you think about that argument.
Brittany Huttner (23:01):
Yeah, I think that's a great point. So again, I just have to say I'm so excited to see all the future challenges and we just wanted to highlight one challenge quickly today that gun owners of America has actually filed a lawsuit in Florida relating to Bruin as well, and they are challenging Florida's prohibition against open carry. So I think this is a lawsuit we want to continue to follow in the future. So recently our firm went to the Gun Owners Advocacy and Leadership Summit hosted by Gun Owners of America, and it was a great event. And at that I really saw a lot of the hard work that GOA has been doing, trying to promote the Second amendment and watching out for ways to challenge bad laws that restrict the Second Amendment. And I think this is an example of it. And here they cite some similar things that we've talked about with rahimi and then this eighth circuit case relating to Minnesota.
Brittany Huttner (23:54):
And in this eighth circuit case, they focus on those status based restrictions. And in the Florida lawsuit, they actually cite the similar status based restrictions and why those should not serve as a good historical analog because these status based restrictions are actually horrifically racist. If you go back and look at these restrictions, the purpose of these restrictions was to prevent black individuals, native American individuals, Italians, from owning firearms. And it's really sad to think that here we have states siding back to these laws saying we use this to take firearms away from black Americans and we want to bring this back now to restrict people from 18 to 20, from being able to carry firearms from people being able to open carry firearms. And I think it's disgusting that we're trying to say, yep, we want these laws back. And I think GOA has really hit on the fact that if they can use that, they can use that historical analog to take away firearm rights for 18 to 20 year olds for open carry. What's next? I think you touched on it a little bit, political opponents, people you disagree with.
Rachel Moss (25:02):
It could be dangerous, it could be. Right. And like we talked about, I do think the brewing standard is a huge opportunity for the two a community. I completely agree, but I do think that in the hands of the wrong people it could be dangerous.
Brittany Huttner (25:14):
So we're going to be keeping an eye on this GOA lawsuit. We're really excited, we're rooting for GOA out there, but we're really just going to keep an eye on all brewing challenges in the future. I think we're going to see more explanation of what this test really means in the future, and we're going to keep an eye on it.
Rachel Moss (25:30):
And I do think if you are coming to the Attorneys on retainer first annual conference, I think that we'll probably touch on if there is any updates before then and kind of regroup and dive more into these Bruin holdings that we've been seeing
Brittany Huttner (25:43):
Exactly. So check that out on attorneys on Retainer us. You can learn all about our exciting first conference. Well, I know we're looking forward to it. And you can also learn more about the Attorneys on Retainer program. It's a self-defense protection program. Brittany and I are really involved in attorneys on Retainer, so definitely check it out. And go ahead and check us out on attorneys for freedom.com as well. That's where you can learn more about Brittany I and what we do at the firm.
Rachel Moss (26:09):
And always if you enjoyed this video, like comment, share, and subscribe and we'll see you next time on the two a roundup. Cheers.
YouTube Video Link: https://www.youtube.com/watch?v=ChBobOpR_Pw&list=WL&index=3&t=15s
Credit: Brittany Huttner and Racheal Moss, Attorneys on Retainer