Chief Justice Roberts’ greatest gift was to make a complex case look simple—so simple that the answer he arrived at seemed to be only reasonable results. In less than 18 pages, Roberts reiterates the bridge while effectively downplaying precedent. Now, lower courts can uphold any “gun control law that complies with the law.” in principle This underpins our regulatory heritage. Laxmi This is another masterclass in misdirection.
What are the main “principles” underpinning the 922(g)(8) tradition? Security Law. As I read the Chief’s opinion, I couldn’t stop thinking about the Obamacare case. mine NFIB Post Traumatic Stress Disorder (PTSD) Recently Triggered Mooreand Laxmi Pulled me in again.
What’s the connection, you might ask? Society has long decided that certain behaviors are bad. There are many ways to deal with inappropriate behavior. First, when a person behaves inappropriately, he can be punished. This is the criminal justice system. Second, if the person is likely to engage in misconduct, he may be subject to some anticipatory injunction prohibiting him from engaging in the misconduct. Consider the controversial domestic violence restraining order Laxmi. Third, a person can choose to pay some kind of money upfront to allow them to engage in inappropriate behavior.
Wait a minute, you might ask. The third one is not an option! Yes. Just look at the Affordable Care Act. Congress decided that not having insurance was a bad thing. To solve this problem, Congress forced people to buy health insurance. But Congress allowed people to pay a penalty to cancel coverage—or was that a tax? Not important for present purposes. In some cases, the government may determine that the funds generated by the fee could be used to address the underlying problem. It’s better for uninsured people to pay a fine than to have them jailed, right? If you want another example, consider Jacobson v. Massachusetts. Those who are not vaccinated can choose to pay a nominal fine. Once they pay the fine, they are free to integrate into society without vaccination.
There is a fourth way to deal with misconduct: the guarantee system. Long before law enforcement existed, society had systems in place to ensure that bad behavior did not occur. Simply put, a person at risk of misconduct can pay a sum of money – called a surety – to the court. If they perform well within the stipulated time, they get their guarantee back. If they engage in wrongdoing, they post the bond. Therefore, there is an economic motive for behavior.
Chief Justice Roberts explained that recognizance laws were invoked to prevent domestic violence. For example, a wife can ask for bond against an abusive husband. Roberts finds support for Section 922(g)(8) in this practice. But is it?
Domestic abuse suspects are free to possess firearms after providing a surety. However, under 922(g)(8), suspected domestic abusers cannot possess firearms. Judge Thomas’s dissent explains why this historical precedent does not support 922(g)(8) at all. This analogy takes us back to NFIB. Is the surety closer to authorization, plus penalties? Or is the surety closer to taxing the uninsured? I think the answer is the latter.
A better analogy would be a system in which a person who may pose a risk to others issues some kind of financial bond; failure to post a bond will result in jail time; and engaging in misconduct will also result in posting a bond. I think everyone would agree that Mr. Rahimi should be in jail, but if he is left on the streets, there is no similar evidence in history to support disarming him. Maybe there is a “principle”, but the exception quickly eats up the entire rule.
We’ll see what the courts do. SG asks court to grant en banc review scope and other pending Second Amendment cases. Or the courts could GVR everything, leaving lower courts in disarray for a few more years.
