Felicia Ellsworth: Welcome to “In the Public Interest” from WilmerHale, an international law firm at the intersection of government, technology and business. Thank you for joining us. I’m Felicia Ellsworth.
Michael Dawson: And I’m Michael Dawson. Today’s episode is the latest installment in our second annual Supreme Court miniseries, where we dive into the most hotly contested decisions coming out of the Supreme Court this term and discuss the implications of the Court’s rulings going forward.
Felicia Ellsworth: On this episode, we will be discussing one of the more high-profile cases of this term, United States v. Rahimi. The question in Rahimi is whether a federal statute that prohibits individuals who are subject to domestic violence restraining orders from possessing firearms is unconstitutional. Rahimi’s challenge was built on the doctrinal foundation led by New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court decision which rewrote the test for Second Amendment challenges. Joining me to discuss this case is Ryan Chabot, a counsel in our New York office. Ryan was one of the WilmerHale lawyers who wrote an amicus brief on behalf of Everytown for Gun Safety in support of the federal government’s position that the statute at issue is constitutional. Thanks so much for joining us today, Ryan.
Ryan Chabot: Thank you for having me.
Felicia Ellsworth: So before we dive in, can you just give us a quick overview of the background of this case and what happened in the lawsuit?
Ryan Chabot: Absolutely. So in 2019, a Texas man named Zackey Rahimi assaulted his girlfriend in parking lot and while he was doing it, he fired a shot either at her as she ran away or at a bystander. And then in February 2020, a Texas judge issued a restraining order against him. And there’s a federal law, 18 U.S.C. § 922(g)(8), which makes it a felony punishable by up to 10 years in prison for anyone who is subject to a domestic violence restraining order who possesses a firearm. After the restraining order was issued against Rahimi, he not only violated the restraining order by contacting his girlfriend, but he also participated in at least four additional shootings. Then on May 26 in 2021, Rahimi pled guilty for violating section 922(g)(8), and he was sentenced to six years in prison. But he appealed his conviction to the Fifth Circuit on the basis that 922(g)(8) was facially unconstitutional under the Second Amendment based on the Supreme Court’s 2022 decision in Bruen. The Fifth Circuit held that the statute was unconstitutional and vacated his conviction, and the United States appealed the Fifth Circuit’s determination to the Supreme Court and argued that 922(g)(8) was constitutional.
Felicia Ellsworth: So let’s talk for a minute, or back up for a minute I should say, to talk about Bruen. Can you explain what that decision held and how it was relevant to the Rahimi case and also more broadly, Second Amendment jurisprudence?
Ryan Chabot: Bruen was a 2022 decision by the Supreme Court that was a landmark in Second Amendment jurisprudence. There had really been almost no Second Amendment jurisprudence for decades until the Court held in a couple of decisions that there was both a private right in the Second Amendment to possess a firearm and that that right applied to individuals in two cases called McDonald and in Heller. The lower courts really struggled to apply McDonald and Heller because the Court had, for the first time, recognized the individual right, and so no one really knew exactly what the test was for determining whether that right was violated by a statute or regulation by the government. And in Bruen, the Court set out what the test was for whether regulation, imposition, on the Second Amendment right that the Court had recognized applied individually, was violated or not. So in Bruen, in a decision by Justice Thomas, the Court basically adopted a two-step test for whether or not a regulation of the right to bear arms was constitutional. And the first step was determining basically whether the Second Amendment was implicated at all. And so this is the textual analysis. So, for example, since the Second Amendment only applies to the right to bear arms, there’s a textual question in the first instance about whether something is an arm. If it’s not an arm, as that term is understood, then the Second Amendment doesn’t apply. There’s a threshold textual analysis that is the step one of Bruen. And then at step two, if the statute does implicate the Second Amendment right, there is a historical tradition test where the government has to show that the regulation is consistent with the nation’s historical tradition of firearms regulations along two vectors of how and why. So if the government is going to, in this case, restrict the ability of somebody who has had a domestic violence restraining order entered against them from possessing firearms, the burden is on the government to show that that imposition on the right is consistent with the how and the why of the country’s historical tradition of regulating firearms.
Felicia Ellsworth: So is that historical tradition test from Bruen—is that what some people call an “originalist” test, or how would you define the test established by Bruen?
Ryan Chabot: It is an originalist test. Now, originalism has a lot of different meanings to a lot of different folks. At its simplest, originalism is just a legal interpretive theory that says the Constitution should be interpreted as it would have been understood by the public when the Constitution was ratified. And so the text of the Constitution has its original public meaning, and that original public meaning doesn’t change over the course of time. There’s a debate that arises, in especially the Second Amendment context, about which era you should be looking at when you’re trying to ascertain the original public meaning. And the reason for that is because while the Second Amendment was ratified in 1791 in the Founding Era, the Fourteenth Amendment was not ratified until 1868 in the Reconstruction Era. And it was the Fourteenth Amendment that applied the Second Amendment and the other Bill of Rights to the states. And so the ratifiers of the Fourteenth Amendment in 1868 had an understanding of what the Second Amendment meant when they ratified the Fourteenth Amendment and applied all of the Bill of Rights to the states. And to the extent that that understanding differs from the understanding of the ratifiers of the Second Amendment itself in 1791, there’s a debate over which controls. So the Bruen test is certainly an originalist test. It requires the government to show a historical tradition that is demonstrated by historical analogues. And although Bruen made clear that you’re not required to show a historical twin—in other words, you don’t need to point to a law from the Founding Era that is an exact twin of the government regulation or statute being challenged—it does require you to do extensive historical analysis. It requires expert opinion about what historical statutes at the time were and meant, and in that sense it is certainly an originalist test.
Felicia Ellsworth: OK, so before we talk about WilmerHale’s role in this case, can you just briefly describe for our listeners, what did the Court hold in Rahimi? How did it apply Bruen to this set of facts?
Ryan Chabot: Sure. So the short answer is that the Court said that 922(g)(8) is constitutional. It looked at the historical record and it looked at the tradition of firearms regulation in our country and it held that it is constitutional to infringe on the Second Amendment right of someone who is a demonstrated risk to the safety of others. And so it’s as a matter of common sense and as a matter of our historical tradition, 922(g)(8) is constitutional on its face. In other words, it is not unconstitutional in every application. It criticized the Fifth Circuit’s decision for flipping the facial challenge test on its head, and instead of asking whether or not it is constitutional in every application, looking for applications where it was unconstitutional.
Felicia Ellsworth: So let’s turn to WilmerHale’s role in the case and the amicus brief that you worked on. How did we get involved in this case and what arguments did the amicus brief raise?
Ryan Chabot: So Wilmer played a significant role in the case in that we offered three different amicus briefs that all took the same position that 922(g) is constitutional but offered widely different perspectives for the Court to inform its analysis. So let me talk first briefly about the couple of briefs that I didn’t work on. We filed a brief that was led by Mark Fleming, a partner in our Boston office, on behalf of the United States Conference of Catholic Bishops. That brief argued and emphasized that the historical tradition test that Bruen adopted is really focused on tradition more than history. History is evidence of the nation’s tradition, but what the test is really aimed at, according to our brief, is identifying what is the tradition of the country, and does a modern regulation fit within that tradition? And the US Conference of Catholic Bishops argued this is something that the Conference of Catholic Bishops, and the Catholic Church in general, has a lot of experience with and expertise in and has developed a method of doing, identifying how historical texts apply within a broader tradition, and they urged that the Court make clear that the test is about tradition and not just history, that history is evidence but it is not itself the tradition. And it argued that the tradition of the United States more than supports disarming people who pose a demonstrated threat to the safety of others. And then in a second brief led by Mark Selwyn, who is a partner in our Palo Alto office, we wrote on behalf of a collection of history and law professors that the historical analogues, many of which the Court then relied on, did show a tradition in the country of regulating on the vectors of how and why this sort of imposition on the Second Amendment right for people who had a demonstrated risk of violence to the others. The brief that I worked on with Alan Schoenfeld, a partner in our New York office, and Josh Feinzig, also an associate in the New York office, was on behalf of Everytown for Gun Safety, the country’s largest nonprofit focused on advocating for gun control and against gun violence, that Wilmer has a close partnership with and has worked with on several other matters. So our brief took up this question of the Reconstruction versus Founding Era and in the first instance, we argued that the Court didn’t need to resolve this 1791 versus 1868 question in this case because the evidence from 1791 or 1868 was consistent and consistently showed that a restriction like 922(g) was constitutional under the nation’s historical tradition of regulating firearms. So our sort of top-line position was that the Court didn’t need to resolve this issue in Rahimi, just like it didn’t need to resolve it in Bruen. Then we offered a few backdrop positions if the Court were going to reach it. We made the point that the right way to analyze the question is by looking at the time of the ratification of the amendment and in the case of the Fourteenth Amendment, because it was ratified in 1868, Reconstruction Era evidence is persuasive evidence of what the ratifiers of the Fourteenth Amendment thought. We also made the point that the analysis ought to be the same whether or not it’s the federal government or the state government, because even though the Fourteenth Amendment only made the Second Amendment apply to the states, and it was applicable to the federal government as of the Founding Era, the understanding of the ratifiers of the Fourteenth Amendment updated the understanding of the Second Amendment. And the Court has made clear you don’t have two different Second Amendment rights, one if it’s a federal law and one if it’s a state law. They have to be interpreted consistently and the right understanding, we argued, was 1868.
Felicia Ellsworth: So we talked a little bit about what the opinion held, but could you give us some reactions that you had to the opinion? Anything in it that stood out from your perspective, particularly given the work that you all had done on behalf of Everytown about the reasoning of the opinion or the result?
Ryan Chabot: Absolutely. So first I have to say, on behalf of Everytown, it was an 8-1 decision in favor of the constitutionality of 922(g). But the Everytown position that this case did not require the Court to decide the 1791 versus 1868 question was in fact a 9-0 sweep because even Justice Thomas in dissent said we don’t have to resolve this question in this case. And so the top-line position we took for Everytown was unanimous in this one. So we call that a big victory even though the position itself was just don’t touch this issue in this case.
Felicia Ellsworth: Take the wins where you can get them.
Ryan Chabot: Absolutely. So the Court didn’t resolve the 1868 versus 1791 issue. So we expect to keep litigating that one in nearly every case. It comes up in nearly every Second Amendment case because the scope of the evidence you’re able to look at for identifying historical tradition often matters. But what’s really important about the Rahimi decision is that prior to Rahimi, all Second Amendment litigation had really been riding on a slate left by Bruen that only had one data point on it. And it was a data point holding that the law was unconstitutional. And so in Bruen, the law at issue was New York’s prohibition on public carry absent good cause, basically, and so for any public carry you needed to show before you could have a right to a public carry permit, you had to show good cause for doing it. And the Court said that there was no historical tradition of that kind of imposition on the Second Amendment right and so held the law was unconstitutional. And so the only comparator, the only law that we had from the Supreme Court that we knew definitively whether or not it was unconstitutional under the Second Amendment was a law that was unconstitutional. So it really tilted the scales in favor of Second Amendment challenges to laws because it was a lot easier to compare to a law that had been invalidated than to make an argument in the abstract about what laws were permissible under Bruen. But Rahimi gives us the data point, at least a data point, about what law is constitutional according to the Supreme Court under the Bruen analysis. So it’s a really important decision because for the first time now, we have a spectrum. We know that the law that was held unconstitutional in Bruen does not pass muster under the Bruen test. And we know that the law upheld in Rahimi does pass muster. So going forward, all of Second Amendment litigation is going to be about situating other laws on this continuum with Bruen on one end and Rahimi on the other end. So it’s a really critically important decision for that and it’s practically important for ongoing Second Amendment litigation across the country.
Felicia Ellsworth: You’ve laid out the impact of this decision on Second Amendment jurisprudence and how it will be used, and likely already is being used, to try and have cases placed somewhere on that spectrum that you’ve identified. But do you see any impact for constitutional law in general based on the reasoning of the decision in Rahimi, some of this historical purpose test? Or do we see a pulling back on that type of constitutional analysis?
Ryan Chabot: What’s really interesting about Rahimi in a broader constitutional context is that while you have the decision of the majority, written by Justice Roberts and joined by eight members of the Court in total, resolving a pretty narrow question about the facial constitutionality of 922(g), its analysis will have a lot of effect on Second Amendment cases throughout the country for sure. I think it demonstrates what we have been arguing since Bruen, which is that you don’t need a historical twin and that it is not surprising there’s no identical laws from this long ago that we can point to. But after the majority opinion, you have many, many, many concurrences, often very long and scholarly concurrences written about what the mode of analysis that is being adopted in this historical tradition test means. And there’s an ongoing debate across them, and between them, even among justices who all agreed with the majority opinion, between Justice Barrett and Justice Kavanaugh and Justice Gorsuch about how you do this sort of analysis, what its impacts are, what evidence matters and how you deploy it. And I don’t think that much in those concurrences is strictly limited to the Second Amendment context. And so what’s really interesting about Second Amendment jurisprudence today is that because unlike most constitutional rights, we are really at the very beginnings of courts and the Supreme Court exploring the parameters of what the Second Amendment right is and isn’t. Whereas for other rights that have been far longer established as an individual right, there’s decades or centuries of precedent about what the right means. Because the courts are riding on something of a blank Second Amendment slate, it gives them an opportunity to reconsider a lot of first principles that have otherwise been deeply developed in other areas of the law. And so Justice Kavanaugh’s concurrence, I think, lays out a mode of analysis of constitutional questions that I don’t see any reason in his decision would be limited to Second Amendment jurisprudence and it basically says that this sort of two-part text and tradition analysis is how you do all constitutional interpretation. You always ask, is the conduct within the scope of the right under the text and if so, does it fall within our historical tradition? And so I think there’s an argument that applying something like that sort of analysis to other constitutional questions where we all remember from law school and from other litigation, there’s other modes of analysis, like strict scrutiny and heightened scrutiny and intermediate scrutiny and different levels of tests depending on how protected the right is, we all remember those vectors that we learned. But I think that many of the concurrences to Bruen, and especially Justice Kavanaugh’s, puts all of that into question. And maybe what we will see is that for equal protection rights or for First Amendment rights, this Court is going to move more toward a unifying test for constitutional analysis and not the divergent tests that we have in many areas of the law today that treat different rights with different tests and different parameters. We may see more of a coalescing around something like the Bruen two-part test for all constitutional rights.
Felicia Ellsworth: Well, fascinating case and potentially a blueprint for what some future constitutional law decisions may look like coming out of this Court, maybe even beyond the Second Amendment context. So thanks so much, Ryan, for taking the time to chat with us about Rahimi today and about the firm’s role in the case. We really appreciate your time.
Ryan Chabot: Thanks so much for having me.
Felicia Ellsworth: Thank you, everyone listening, for tuning in to this episode of “In the Public Interest.” We hope you’ll join us for our next episode. If you enjoyed this podcast, please take a minute to share with a friend and subscribe, rate, and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please email them to us at [email protected].
Michael Dawson: For our WilmerHale alumni in the audience, thank you for listening. We are really proud of our extended community, including alumni in government, the nonprofit space, academia, other firms and leadership positions in corporations around the world. If you haven’t already, please join our recently launched Alumni Center at alumni.wilmerhale.com so we can stay better connected. Our show today was produced by Walker Schneider and Wesley Schmidt. Sound engineering and editing by Bryan Benenati, marketing support by Emily Freeman and her team, all under the leadership of executive producers Sydney Warren and Jake Brownell. Thank you for listening.
Felicia Ellsworth: See you next time on “In the Public Interest.”
