Justice Clarence Thomas Towering Defense Of The Second Amendment

A few days before his 76th birthday Associate Justice Clarence Thomas, did what he does best and stood for the original meaning of the Constitution in his lone dissent in United States v. Rahimi.

The case was another fine example of Justice Thomas’ unflinching commitment to preserving the Constitution and the rights it protects from modern reinterpretation and erosion.

As is often the situation in such cases, the respondent, Zackey Rahimi, is not a particularly sympathetic character. He was indicted under 18 U. S. C. §922(g)(8), a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm.

In order to trigger the statute the restraining order must either contain a finding that the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child, §922(g)(8)(C)(i), or “by its terms explicitly prohibit[ ] the use,” attempted use, or threatened use of “physical force” against those individuals, §922(g)(8)(C)(ii). Rahimi conceded that the restraining order against him satisfies the statutory criteria, but argued that on its face Section 922(g)(8) violates the Second Amendment.

The 8-Justice majority in several different opinions found that the statute depriving Rahimi of his constitutional right to keep and bear arms was not unconstitutional and fit within the within the Nation’s regulatory tradition.

Justice Thomas, in our view correctly, found that the statute at issue failed to meet the Court’s historical test as set forth in New York State Rifle & Pistol Assn., Inc. v. Bruen and perhaps of equal importance, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders. There is no hearing or opportunity to be heard on the statute’s applicability, and a court need not decide whether a person should be disarmed under §922(g)(8). The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order.

In a review of the historical record that is both erudite and incisive Justice Thomas demolished the government’s claim – supported by the majority – that a historical analysis of English and Colonial law supported the government. “Dangerous” person laws thus offer the Government no support,” concluded Justice Thomas, because the correct historical analogue was not confiscation, but a surety bond.*

A careful parsing of regulatory burdens makes sense given that the Second Amendment codifies a right with a “historically fixed meaning.” Accordingly, history is our reference point and anchor. If we stray too far from it by eliding material differences between historical and modern laws, we “risk endorsing outliers that our ancestors would never have accepted,” Thomas wrote.

And, Thomas concluded, the historical existence of surety laws cannot be used to justify the sweeping restrictions on Second Amendment rights imposed by §922(g)(8).

These sweeping prohibitions are criminally enforced. To violate the statute is a felony, punishable by up to 15 years. §924(a)(8). That felony conviction, in turn, triggers a permanent, life-long prohibition on exercising the Second Amendment right. See §922(g)(1).

The combination of the Government’s sweeping view of the firearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered firearms and ammunition makes §922(g)(8)’s burden unmistakable: The statute revokes a citizen’s Second Amendment right while the civil restraining order is in place. And, that revocation is absolute. It makes no difference if the covered individual agrees to a no-contact order, posts a bond, or even moves across the country from his former domestic partner—the bar on exercising the Second Amendment right remains. (Emphasis by CHQ.)

That combination of burdens places §922(g)(8) in an entirely different stratum from surety laws. Surety laws preserve the Second Amendment right, whereas §922(g)(8) strips an individual of that right. While a breach of a surety demand was punishable by a fine, §922(g)(8) is punishable by a felony conviction, which in turn permanently revokes an individual’s Second Amendment right. At base, it is difficult to imagine how surety laws can be considered relevantly similar to a complete ban on firearm ownership, possession, and use.

That combination of burdens places §922(g)(8) in an entirely different stratum from surety laws. Surety laws preserve the Second Amendment right, Thomas argued, whereas §922(g)(8) strips an individual of that right. While a breach of a surety demand was punishable by a fine, §922(g)(8) is punishable by a felony conviction, which in turn permanently revokes an individual’s Second Amendment right. At base, it is difficult to imagine how surety laws can be considered relevantly similar to a complete ban on firearm ownership, possession, and use.

Justice Thomas also demolished the majority’s reliance on historical “affray laws” affray laws arguing such laws did not impose a burden analogous to §922(g)(8). They regulated a niche subset of Second Amendment-protected activity: affray laws prohibited only carrying certain weapons (“dangerous and unusual”) in a particular manner (“terrifying the good people of the land” without a need for self-defense) and in particular places (in public).

Meanwhile, §922(g)(8) prevents a covered person from carrying any firearm or ammunition, in any manner, in any place, at any time, and for any reason. Section 922(g)(8) thus bans all Second Amendment protected activity. Indeed, this Court has already concluded that affray laws do not impose a burden “analogous to the burden created by” an effective ban on public carry.

The Court counters that since affray laws “provided for imprisonment,” they imposed a lesser burden than §922(g)(8)’s disarmament. But, that argument serves only to highlight another fundamental difference: Affray laws were criminal statutes that penalized past behavior, whereas §922(g)(8) is triggered by a civil restraining order that seeks to prevent future behavior. Accordingly, an affray’s burden was vastly harder to impose. To imprison a person, a State had to prove that he committed the crime of affray beyond a reasonable doubt.

The Constitution provided a bevy of protections during that process—including a right to a jury trial, counsel, and protections against double jeopardy. See Amendments 5 and 6. The imposition of §922(g)(8)’s burden, however, has far fewer hurdles to clear. There is no requirement that the accused has actually committed a crime; instead, he need only be prohibited from threatening or using force, or pose a “credible threat” to an “intimate partner or child.” §922(g)(8)(C). Section 922(g)(8) thus revokes a person’s Second Amendment right based on the suspicion that he may commit a crime in the future. (Emphasis by CHQ.)

In conclusion Justice Thomas wrote, echoing his magisterial opinion in Bruen, The Second Amendment recognizes a pre-existing right and that right was “enshrined with the scope” it was “understood to have when the people adopted [the Amendment].”  Only a subsequent constitutional amendment can alter the Second Amendment’s terms, “whether or not future legislatures or . . . even future judges think [its original] scope [is] too broad.”

The [Biden] Government’s “law-abiding, dangerous citizen” test—and indeed any similar, principle-based approach—would hollow out the Second Amendment of any substance. Congress could impose any firearm regulation so long as it targets “unfit” persons. And, of course, Congress would also dictate what “unfit” means and who qualifies. The historical understanding of the Second Amendment right would be irrelevant. In fact, the [Biden] Government posits that Congress could enact a law that the Founders explicitly rejected.

At base, whether a person could keep, bear, or even possess firearms would be Congress’s policy choice under the [Biden] Government’s test. That would be the direct inverse of the Founders’ and ratifying the public’s intent. Instead of a substantive right guaranteed to every individual against Congress, we would have a right controlled by Congress. “A constitutional guarantee subject to future judges’ [or Congresses’] assessments of its usefulness is no constitutional guarantee at all.” The Second Amendment is “the very product of an interest balancing by the people.” It is this policy judgment—not that of modern and future Congresses—“that demands our unqualified deference,” concluded Justice Thomas in his dissent. [Biden] added by CHQ.

CHQ Editor George Rasley is a Glock ® certified pistol armorer, firearms instructor and a veteran of over 300 political campaigns, including every Republican presidential campaign from 1976 to 2008. He served as lead advance representative for Governor Sarah Palin in 2008 and has served as a staff member, consultant, or advance representative for some of America's most recognized conservative Republican political figures, including President Ronald Reagan and Jack Kemp. A member of American MENSA, he served in policy and communications positions on the House and Senate staff, and during the George H.W. Bush administration he served on the White House staff of Vice President Dan Quayle.

*Historically, persons whom the government thought might be prone to misbehavior could be required to post a surety bond, much like a court appearance bond, that would be forfeit if the subject of the bond engaged in any violence or antisocial behavior as described in the bond.

• United States v. Rahimi

• Justice Clarence Thomas

• Second Amendment

• Gun Rights

• Right to Bear Arms

• Domestic Violence Restraining Order

• due process

• historically fixed meaning

• surety laws

• fines

• felony convictions

• affray laws

• New York State Rifle & Pistol Assn., Inc. v. Bruen