California Rifle & Pistol Association head and founding member of the Second Amendment Law Center Chuck Michel is back on today’s Bearing Arms’ Cam & Co with details on a Ninth Circuit panel’s oral arguments over the state’s Handgun Roster scheme, as well as a look at the first briefs filed with SCOTUS in the Rahimi case and how Second Amendment defenders are responding.
Michel believes the Ninth Circuit panel that heard oral arguments in two separate cases challenging the state’s handgun roster, along with its mandates that all semi-automatic handguns in the state must come with microstamping technology, a loaded chamber indicator, and a magazine disconnect mechanism, was hostile to the plaintiffs’ arguments that those mandates have no historical analogues that support keeping them in place, though it sounded at times like the state’s DOJ was willing to sacrifice the microstamping mandate if the other restrictions were kept in place. Either way, Michel says the issue isn’t going to be conclusively decided by the three-judge panel, though the next steps for the lawsuits are unclear at the moment. If the panel does side with the plaintiffs, the state will most likely try to bring the cases en banc before a larger group of Ninth Circuit judges, while the plaintiffs will probably appeal directly to the Supreme Court if the Ninth Circuit upholds the handgun roster.
SCOTUS has already accepted on Second Amendment case for the fall term, and much of today’s conversation centered around the nearly 40 amicus briefs filed in support of the DOJ’s position that all those subject to a domestic violence restraining order can lawfully be excluded from possessing arms and ammunition. Michel says the Second Amendment Law Center is helping to coordinate a response to the dozens of briefs filed by anti-gun groups and politicians, domestic violence prevention advocates, as well as organizations like the ACLU.
Michel says he’s concerned that the Supreme Court’s decision in Rahimi could be so broad that it ends up allowing for the deprivation of rights without individual due process, noting that many of the briefs in support of DOJ argue that, historically, entire categories of people considered “dangerous” at the time were deprived of their right to keep and bear arms. Of course, those categories of people included Native Americans, freed slaves, and Catholics; all of whom are clearly part of “the people” who possess their Second Amendment rights even if individuals who were a part of a particular class may have been so dangerous that prohibiting them from owning a firearm wouldn’t violate their constitutional rights.
Zachey Rahimi was prohibited from possessing a firearm because of a domestic violence restraining order, but as Michel points out, while there may be evidence of Rahimi’s dangerousness in his record, it’s patently false to say that every one on the receiving end of a restraining order is truly dangerous. Michel cited one case his firm has handled where a couple put up a camera on their property pointing towards their neighbor’s home after their neighbor had allegedly trespassed and damaged property. While the couple was able to get a restraining order against the woman, she in turn slapped them with a restraining order of her own; a not uncommon occurrence when there are disputes between two parties.
Michel says one of the things that Second Amendment groups will be arguing is that instead of banning entire categories of people from possessing firearms, there needs to be a system of individualized due process in order to ensure that people’s Second and Fourth Amendment rights aren’t violated. A narrowly tailored ruling from the Court could still find that Rahimi himself is too dangerous to own a gun, while still leaving the door open to other challenges to the federal prohibited persons statute, including the Range case recently decided by the Third Circuit Court of Appeals, which ruled that a Pennsylvania man who decades ago pled guilty to a non-violent misdemeanor offense punishable by more than a year in prison should not be subject to a lifetime prohibition on firearms.
An expansive ruling in Rahimi could also negate several court decisions that have declared the federal ban gun possession for “unlawful users of drugs” to be overly broad and unconstitutional, and could even make it more difficult to challenge things like red flag laws in the future. What happens in Rahimi may have implications far beyond that one case, and Michel cautions gun owners and Second Amendment supporters not to downplay the importance of Rahimi.
For us non-lawyers, it can be difficult to know how to help in a case like this, especially one that’s being brought a federal public defender and not a Second Amendment organization. Michel is encouraging 2A activists to help with the amicus briefs by making a donation to the Second Amendment Law Center, where Michel, Stephen Halbrook, Dave Kopel, and other first-rate Second Amendment attorneys and legal scholars are doing a great job of defining these issues, presenting the real history of our right to keep and bear arms, and making compelling arguments in cases all across the country.
My conversation with Chuck stretched for about half-an-hour, and we covered far too much ground for me to get into great detail here, so be sure to check out the entire interview with Chuck Michel in the video window below.