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In this episode of the Duke Law Podcast, the Duke Center for Firearms Law (DCFL) discusses the oral argument in U.S. v Rahimi, which was heard in the Supreme Court on November 7. Rahimi is a pending case regarding the Second Amendment to the Constitution and whether allows the government to prohibit firearm possession by individuals subject to certain domestic violence restraining orders.

DCFL Executive Director Andrew Willinger is guest host for this episode and is joined by DCFL faculty co-directors Joseph Blocher, the Lanty L. Smith ’67 Distinguished Professor of Law and Senior Associate Dean of Faculty and Research at Duke Law, and Darrell A. H. Miller, the Melvin G. Shimm Distinguished Professor of Law. Profs. Blocher and Miller are Second Amendment and constitutional law scholars and co-authors of “The Positive Second Amendment: Rights, Regulation, and the Future of Heller.”

Rahimi is the first Second Amendment case to go before the Supreme Court since its landmark ruling in Bruen, just over a year ago. And many see Rahimi as a possible opportunity for the Court to clarify certain aspects of Bruen’s history-focused test that have since divided lower-court judges.

Speakers:
Professor Joseph Blocher
Faculty co-director, Duke Center for Firearms Law

Professor Darrell A. H. Miller
Faculty co-director, Duke Center for Firearms Law

Andrew Willinger (guest host)
Executive director, Duke Center for Firearms Law
Lecturing Fellow
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Excerpts

General impressions about oral argument 

Blocher - "Most of what I heard was, kind of, consequentialism. The questions were about what will it mean for us in other legal areas if we rule in favor of Rahimi here. Like implications for other types of gun laws. Rahimi’s counsel, you mentioned, he’s really emphasizing the burden on Rahimi, he kept using the word ‘ban.’" 

Willinger - “One of the interesting aspects of this argument was that there was surprisingly little discussion, at least little detailed discussion of the actual historical evidence that took up a lot of space in the briefing and that the Fifth Circuit really focused on in its opinion. Most of the questions that the justices had for the Solicitor General focused instead on broader principles and methodology, other status-based prohibitions, and she didn’t really get tough questions – for example – about the specific types of historical evidence the government cited in support of the idea that dangerous people can be disarmed…or about the distinctions that the Fifth Circuit had drawn between various historical laws and the domestic violence restraining order ban that’s at issue in this case.”

On the SG’s proposed framework for prohibited persons restrictions:

Miller - "One way that I understand this passage or this part of the argument is I think the justices are maybe on board in this particular case with understanding dangerousness and irresponsibility as being essentially the same. And I think [Solicitor General Elizabeth Prelogar] would probably count that as a win, if that’s what she can get from the justices. Where I think we’re going to see some severing of opinion amongst the justices is when it comes down to people that aren’t law-abiding, but aren’t otherwise dangerous or irresponsible.

On Justices Jackson and Kagan raising broader issues about how the Bruen test works, or should work:

Blocher - "[Justice Jackson] seemed to be the, sort of, high-water mark in terms of pushing back on Bruen as a framework. It seemed that she’s not inclined to normalize Bruen as the test; which really did make me wonder, if this case goes as I expect it to go and the government to win, whether she may be joined by the remaining Bruen dissenters – that is [Justices] Kagan and Sotomayor – would enter a concurrence saying, ‘The government wins under the Bruen test as articulated, but here’s why that test is problematic, because of what it requires us to do to the historical record.' Or do they just keep their powder dry, join with the majority, take the win, and move on?"

On Justice Jackson’s questions on the government’s approach to prohibitive persons:

Miller - "I can imagine a court essentially working around this problem by saying ‘The principle is pretty broad.’ The fact that in the past people used really noxious kinds of heuristics to figure out who’s dangerous, like race, is just not part of it. But the principle called dangerousness is quite significant and so even using some of these sordid sources you can get a principle that is not as besmirched by racist ideology…”

On who decides what people are considered “dangerous”

Blocher: “[W]ho gets to make the first move in defining which group or which people are dangerous is going to be the big question in Rahimi ... I think the U.S. government’s going to win this case, but there’s a lot of different ways to win, and if you’re a legislator you care a lot about the breadth of the holding.

“What the SG wants, and what I think at least initially makes a lot of sense, is that the legislature gets the first crack at defining the breadth of the group that is dangerous. ... I would think that legislatures, just as they did historically, should get a fair bit of deference on that.”

On whether “dangerousness” should drive what legislatures deem a sensitive place where guns can be banned:

Miller: “Dangerousness is the very reason that people want to carry guns in these places. ... The gun rights advocates in particular, their philosophy is the place where guns aren’t is the place where they most need to be.

“So I’m a little bit worried that if ‘dangerousness’, unmediated, becomes the lodestar for sensitive places doctrine, it’s going to feed into this argument that either the government or a private party has to supply some kind of security apparatus or you get to take your gun there and sort of serve as a deterrent. And there might be all kinds of other reasons why somebody wouldn’t want guns in a sensitive place not having to do, necessarily, with personal safety.”

On predictions for the opinion, concurrences, and dissents:

Willinger: “I see this as probably a 7-2 decision. It would not surprise me at all if Justice Barrett writes the opinion, given her past opinion focusing on this dangerousness idea. And I think that that’s probably the direction the majority is going to go, is to say that all we need to decide here is that dangerousness is a historically supported principle, and Rahimi is dangerous. ... I think Justices Thomas and Alito would be in the dissent, and that you might see a concurrence from Justice Jackson, Justice Kagan, maybe some combination, on the methodology and the broader questions.”

Miller: “I think it might even be 8-1, with Thomas dissenting. The question is what does the concurrences look like, especially if we get a majority opinion that tends to be really tailored very narrowly? Is this going to be an opportunity for Justice Jackson to essentially offer guidance that’s not being offered in the majority opinion to lower courts of applying the Bruen test throughout the Second Amendment doctrine?”

Blocher: “I think a narrow opinion that doesn’t walk back Bruen – and doesn’t make Justice Thomas feel like he has to defend it too much – could maybe get an 8-1, even a 9-0. But it feels to me pretty confident the government wins here. I think 7-2 is probably the safe money bet.”

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Resources:
Duke Center for Firearms Law website - Follow DCFL on X/Twitter - DFCL’s Second Thoughts Blog

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Transcript forthcoming.