This article appeared in Knife Magazine in June 2024
Know Your Knife Laws – Knife Rights v. Philadelphia
By Anthony Sculimbrene, Attorney and Knife Expert
Because of economics, a lot of the innovative casework post-Bruen is coming from federal public defenders (people who represent those who cannot afford a lawyer). In fact, one of the most important (and still pending) cases post-Bruen, US v. Rahimi, is just such a case. Despite being vastly outnumbered and overspent, the Texas federal defenders pushed the Second Amendment law significantly. Their efforts resulted in a reversal of longstanding prohibitions on weapon ownership by federal law 18 USC 922(g). This case went before the US Supreme Court in October of 2023. We are still awaiting a response (they usually come in May or June, so consider this a primer for that case). While we wait, let’s look at what the federal defenders did at the appellate level.
Rahimi was not a level-headed person. One day, he shot a gun at a person during a drug deal and missed. Later that day, he got into a car wreck, shot at the other driver, left, came back, and shot at people again. Police went to look for him and got a warrant for his house. Once inside, they found a pistol and a rifle. They then did a records check and found that he was subject to a restraining order issued by a court at the request of a former girlfriend. Based on that, he was arrested and charged, not for the drug dealing or shooting spree (he was later charged with that as well) but for the much easier-to-prove charge of possessing a firearm after being subject to a restraining order. This charge arose out of 18 USC 922(g)(8).
All of this occurred in Texas, and his Texas federal defender argued that 18 USC 922(g), on its face, violated the Second Amendment. At the time, the controlling circuit precedent said otherwise, so Rahimi lost. The public defender knew this, but the argument was made anyway, likely to preserve the issue. On appeal, the same argument was made unsuccessfully, again to preserve the issue. Then, a few days later, Bruen was issued, and Rahimi’s federal defender, now armed with better law, raised the same claim for a third time. And as you know, the third time is a charm: Rahimi won.
The Court dispensed with two arguments raised by the State. First, they found that the gloss in Heller–the Second Amendment applies to all law-abiding citizens–does mean that you get your rights only when you aren’t in trouble, but instead, those groups of people that, at the time of the Second Amendment’s ratification, had a right to bear arms (i.e. non-felons and people that were not mentally infirm). Second, they found no historical analog similar to 18 USC 922(g)(8). There were not, even in various and sundry English laws of the past, prohibitions similar to taking one’s guns away when they are subject to a restraining order. The Court noted just how limited a restraining order is – it’s a civil proceeding, there is a lower burden of proof, and you can win without proving the person committed a crime. Given these features, the Rahimi Court didn’t see enough to warrant the loss of an individual’s Second Amendment rights.
The federal government appealed, and the case was argued before the Supreme Court in October of 2023. Based on oral argument, I think the Court will likely reverse the Court of Appeals. They could do so in two ways – first, by saying “law-abiding” means more than people that historically had a right to own firearms, but actually, those that are obeying the law; or second, by finding that the restraining order limitation in 18 USC 922(g)(8) is sufficiently analogous to prior laws.
It seems very unlikely that the Court will bite on the law-abiding citizen argument, as most courts have rejected this argument, AND the argument itself seems bad. Rights inure to people automatically, that’s their essential feature. They serve no real purpose if you only have them when things are good. For example, if, instead of the right to bear arms, we look at the right to free speech, the issue becomes clearer. If you only have free speech when saying nice things about the government, then, in fact, by definition, you do not have free speech.
Instead, I think it is much more likely that Rahimi gets reversed because the Court finds that dangerous people laws of the Revolutionary Era ARE analogous to restraining order prohibitions. In particular, Justice Barrett seemed to have no trouble with the paucity of evidence needed to obtain a restraining order, noting that there was, after all, a sworn affidavit on record to support the restraining order. Additionally, multiple justices seemed to think that Rahimi was EXACTLY like people subject to dangerous person restrictions on firearms. Shooting three times in one day at multiple people seems to prove he is dangerous (notably, the lawyer for Rahimi seemed to stumble here – his response should have been to point out that the conduct of shooting at people three times in a day is irrelevant – the dangerousness claim in Rahimi’s case was based on the restraining order).
Regardless of the outcome, one lesson above all comes out of this case: knife advocates should be mining these federal criminal cases for language and ideas to support knife owner rights. Because of the cost and risk of litigation, few places generate more good laws for the rights of everyday people than a public defender office.