U.S. v Rahimi: Firearms and Domestic Violence Protective Orders

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Kelly Roskam (she/her/hers): So in April of 2017, Zackey Rahini, the individual at the heart of this Supreme Court case.

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Kelly Roskam (she/her/hers): To talk a little bit more about the evidence behind domestic violence and firearms, and why it is such a dangerous connection. We're joined by Dr. April Zeoli.

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Tim Carey: So now we're here. We're at the Supreme Court.

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Kelly Roskam (she/her/hers): began dating, a woman identified only in filings as Cm.

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Kelly Roskam (she/her/hers): Dr. Zeoli is an associate professor in the Department of Health Management and Policy and Director of the Policy Corps at the Institute for Firearm, injury, prevention at the University of Michigan. Her main fields of investigation are the prevention of firearm, violence, intimate partner violence, and homicide. Through the use of policy and law. She is one of the nation's leading experts on policy interventions for firearm use in intimate partner violence.

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Kelly Roskam (she/her/hers): They had a child together. And then, in December 2019, the 2 got into an argument in a parking lot in Arlington, Texas.

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Kelly Roskam (she/her/hers): After Cm. Attempted to leave, Zackey Rahimi grabbed her wrist, knocked her down, dragged her to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard.

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Kelly Roskam (she/her/hers): When he realized that there was a bystander who had seen all of this.

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Kelly Roskam (she/her/hers): Broadly Dr. Zeoli studies the role of firearms and intimate partner. Violence and homicide, as well as the civil and criminal justice system responses to intimate partner violence.

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Kelly Roskam (she/her/hers): he retrieved a firearm from his car and fired a shot into the air.

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Kelly Roskam (she/her/hers): Cm. Took this opportunity to run away, but Zackey Rahimi called her later on and threatened to kill her if she told anybody about what happened.

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Kelly Roskam (she/her/hers): Her research focuses on legal firearm restrictions for domestic violence abusers and their impact on intimate partner homicide and the implementation of those firearm restrictions.

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Tim Carey: We'll be keeping a close eye on these developments and more. In the meantime, that's our episode, for today we'll be back to talk about the Rahimi opinion once it drops. Thank you for listening to sufficiently analogous. Your 1st stop for thoughts on the Second Amendment.
Credits and outro music
Kelly Roskam: Sufficiently Analogous is a podcast from the Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health. Produced by Tim Carey, Joe McHugh, Kelly Roskam, and Kari Still. Audio production from Matthew Martin, Philip Porter, and Holly Cardinell.
Distribution and social media by Shakun Kashal.

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Tim Carey: And a month later, in January 2020 Cm. Petitioned for a protective order against Rahimi.

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Kelly Roskam (she/her/hers): And I can say, from personal experience, I have learned so so much from Dr. Zeoli over the years. So thank you so much for joining us today.

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Tim Carey: she wrote, Zach’s violence, this is Zackey Rahimi

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April Marie Zeoli: Thank you, and thanks for those kind words.
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Kelly Roskam (she/her/hers): so first, Dr. Zeoli, could you just explain to us? You know

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Kelly Roskam (she/her/hers): Welcome back to sufficiently analogous. Your podcast about post Bruen firearms, litigation, the history of firearm regulation, and the evidence that shows why gun violence prevention laws are so important.

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Tim Carey: towards me has sent me to the emergency room. Zack has broken my cell phone so that I could not seek help or call the police. Zack has taken my keys to prevent me from seeking help or calling the police. Zack has pulled a gun on me. Zack has fired a gun in my direction. Zack has threatened to kill me.

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Kelly Roskam (she/her/hers): We're your hosts. I'm Kelly Roskam.

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Tim Carey: And I'm Tim Carey.

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Kelly Roskam (she/her/hers): And our third co-host, Cari, is on a well deserved vacation, so it'll just be us today.

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Tim Carey: I need a protective order, because I am afraid that Zack will kill me, my son.

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Tim Carey: Try our best to make do

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Tim Carey: on today's episode. We will discuss an impending decision from the Supreme Court, implicating domestic violence and firearms called United States versus Rahimi.

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Tim Carey: Then, in February 2020, Rahimi agreed to the issuance of a 2 year Protective order. The Texas State Court found that Rahimi had received actual notice and an opportunity to participate in a hearing, and found that Rahimi committed family violence, and was a credible threat to the physical safety of Cm. And their child.

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Tim Carey: We will give a primer on domestic violence. Protective orders overview the Federal law implicated in this case, hear from a public health expert on the intersection of guns and domestic violence. Examine the history of the case that brought us here, discuss our impressions of, oral argument at the Supreme court from last year, and theorize on what we think is coming next.

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Kelly Roskam (she/her/hers): Just a few months later, in August of 2020, Rahimi violated that protective order by approaching Cm's house in the middle of the night

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Kelly Roskam (she/her/hers): in November of 2020, he threatened yet another woman.

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Kelly Roskam (she/her/hers): Woo, that is a lot.

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Kelly Roskam (she/her/hers): So before we get into United States versus Rahimi. First, we'll go over what domestic violence protective orders are, and what their purpose is.

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Tim Carey: And then, between December 2020 and January 2021, Rahimi participated in a series of at least 5 shootings in and around Arlington, Texas.

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Kelly Roskam (she/her/hers): so domestic violence protective orders referred to by various different names in the States

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Kelly Roskam (she/her/hers): are often civil orders issued by judicial officers to protect individuals from domestic abuse.

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Tim Carey: After identifying Rahimi as the suspect. In these shootings Law enforcement executed a search warrant at Rahimi's home, where they discovered a pistol, a rifle ammunition, and a copy of Cm's Protective Order that specifically prohibited him from possessing any of those things.

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Kelly Roskam (she/her/hers): They're issued in cases where domestic violence has already occurred, or the court finds that it is likely to occur in the future. So that's to protect people from both physical violence and threats of violence.

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Tim Carey: And these laws are hardly anomalous. I mean, they're implemented by all 50 States across the nation, and have been so for decades.

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Kelly Roskam (she/her/hers): So that detail is what gets me every time I read about this case.

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Kelly Roskam (she/her/hers): So one other thing I really wanted to emphasize is

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Kelly Roskam (she/her/hers): That's right.

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Kelly Roskam (she/her/hers): that

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Kelly Roskam (she/her/hers): So the law that is at issue in United States versus Rahimi is the federal law prohibiting people subject to certain types of protective orders from purchasing or possessing firearms. It was adopted in 1994 as part of the Violence against Women Act.

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Kelly Roskam (she/her/hers): these 5 shootings, in which Rahimi was allegedly a participant, have gotten a lot of coverage in the media around this case.

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Kelly Roskam (she/her/hers): So oral argument in United States versus Rahimi was held on November 7th of last year. The 1st litigant before the court was solicitor, General Elizabeth Prelogar, representing the Government in the case.

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Kelly Roskam (she/her/hers): and I do think they are an extreme illustration of how dangerous armed domestic users are.

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Kelly Roskam (she/her/hers): but I also want to note that

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Tim Carey: And it's referred to as

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Tim Carey: 18 Usc. Section 9, 22 g. 8, as the Federal code. But we're just going to refer to it as the law for the sake of today's episode.

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Kelly Roskam (she/her/hers): that all of the violence that he exhibited towards Cm.

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Kelly Roskam (she/her/hers): And she did such a wonderful job of summarizing the issues. And what's at stake in the case that will play that clip entirely for you here.
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SG Prelogar: Guns and domestic abuse are a deadly combination. As this Court has said, all too often, the only difference between a battered woman and a dead woman is the presence of a gun. Armed abusers also pose grave danger to police officers responding to domestic violence calls and to the public at large, as Zackey Rahimi's own conduct shows.
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Like Heller and McDonald, Bruen recognized that Congress may disarm those who are not law-abiding, responsible citizens. That principle is firmly grounded in the Second Amendment's history and tradition.
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Tim Carey: One of the earliest exchanges in this argument, and certainly

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Kelly Roskam (she/her/hers): Is, is enough.

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Kelly Roskam (she/her/hers): That was enough for the issuance of the protective order. It's enough to trigger the firearm possession and purchase prohibition, and on its own is really egregious.

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Kelly Roskam (she/her/hers): Yeah, that's a mouthful. But I also wanna highlight some significant limitations to this federal law. So first off, it only applies to orders that are issued after notice

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Tim Carey: Oh, it's more than enough on it's it! I mean this, these events, which again are only the ones that made it into the court record.

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Kelly Roskam (she/her/hers): and an opportunity to be heard by the respondent. So it does not include ex parte and emergency orders that are issued without notice to the respondent.

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Tim Carey: longest, was focused on the 1st step of the Bruen test the plain text analysis.

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Tim Carey: It's not to say it's exhaustive.

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Tim Carey: It's a campaign of terror against this person, and that's a fact that though other courts down the line may skimp over really can't be forgotten when discussing this case.

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Tim Carey: focusing largely on who is considered the law abiding and responsible citizens to which the second Amendment applies.

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Kelly Roskam (she/her/hers): It's also only for orders that are issued against intimate partners. So that's current or former spouses, current or former cohabitants or people who share children in common.

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Tim Carey: and the court seemed really confused and apprehensive about their own language from Heller here. There are only so many ways. The Solicitor General completely say that. And she made intentional distinction between these terms, saying that law abiding covers people who are not convicted of serious offenses, that she considered those that were felony offenses and responsible, who she's that are, people who are not dangerous with firearms whether or not they intend to be, and these definitions are very precise and important, because the government is teeing up their argument for other cases pending before the Supreme Court based around these questions.

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Kelly Roskam (she/her/hers): Yes, I certainly can't. So all of this evidence that was collected with the execution of the search warrant led to Rahimi being indicted for a violation of that Federal law prohibiting people subject to domestic violence, protective orders from possessing firearms. And this is all in the pre Brueng era.

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Tim Carey: But most notably not current and former dating partners, which is still an issue that's being hotly contested today.

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Kelly Roskam (she/her/hers): Yes, it's a really significant gap in the law that puts people at risk.

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Kelly Roskam (she/her/hers): An additional limitation on the law is that

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April Marie Zeoli: I do want to

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Kelly Roskam (she/her/hers): the order must either include a finding that the person is a credible threat to the safety of the intimate partner or child, or its explicit terms have to prohibit the use attempted, use or threaten, use a physical force against that intimate partner or child that would reasonably be expected to cause bodily injury.

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April Marie Zeoli: acknowledge and recognize, and, you know, praise the strength of the victimized partners who often get out of these situations, who often, you know, protect their children, and get them to safety, and generally survive and often thrive after they've gained safety.
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Tim Carey: Can you explain for those listening how guns are being used to harm intimate partners in the United States.
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April Marie Zeoli: Now, when guns are brought into this situation.

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Kelly Roskam (she/her/hers): So Rahimi moved to dismiss the indictment, but the District Court denied the motion, noting that the Fifth Circuit or Texas sits, had already upheld the Federal law.

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Kelly Roskam (she/her/hers): Rahimi then pleaded guilty, and was sentenced to imprisonment, but he also raised his constitutional challenge on appeal

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Tim Carey: So they're not just giving these orders away. I mean, there's all these concrete findings that must be made by a judge or some other judicial officer about these credible threats, risks of harm that

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Kelly Roskam (she/her/hers): before a panel of the fifth circuit, though they also agreed that his argument was foreclosed by this Fifth Circuit decision that upheld the law.

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Tim Carey: Ben

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Tim Carey: severely implicate the life and safety and wellbeing of people.

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April Marie Zeoli: it is especially damaging and traumatizing because we all know how deadly a gun is. We all know how dangerous a gun is. when that person who has victimized you, who is keeping you under their thumb has a firearm. they have that much more leverage.

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Tim Carey: Brueng happened.

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Tim Carey: and so the panel and light of the supreme chorus, new guidance on the Second Amendment withdrew their prior opinion on this matter

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Kelly Roskam (she/her/hers): Absolutely. And that's exactly what Congress was trying to do when it passed the law. It recognized that there is this very dangerous intersection between firearms and domestic violence. Which is illustrated so well by a quote from Minnesota, Senator Paul Wellstone actually, during debate on another provision of Federal law

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Tim Carey: in the fifth circuit, then vacated the conviction of Rahimi, and decided that the Federal law violates the second amendment on its base, so not just that they felt the second amendment was unconstitutional, and Rahimi's specific circumstance, if you even could but rather that any possible

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Kelly Roskam (she/her/hers): Most notably a case called Range versus Attorney General, which was an as applied challenge to the Federal law that prohibits persons convicted of felony offenses from possessing firearms. So in that case the defendant range says that he should not be punished under this law, because, as a nonviolent felon. he's not among the group that was meant to be you know, covered under the second amendment.

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April Marie Zeoli: and when they threaten you with that firearm which they often do. when those threats occur

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Kelly Roskam (she/her/hers): which prohibits people subject to domestic violence, misdemeanors from purchasing or possessing firearms, and, he says, all too often the only difference between a battered woman and a dead woman is the presence of a gun, and nearly 30 years later, that still holds true.
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Kelly Roskam (she/her/hers): And we're gonna hear a lot more about the evidence showing how dangerous these individuals are with access to firearms from Dr. April Zeoli
Interview with April Zeoli

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Tim Carey: application

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Tim Carey: of this Federal law

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Tim Carey: is unconstitutional

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Tim Carey: in reaching this conclusion, the fifth circuit
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Tim Carey: found that the

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April Marie Zeoli: because of the history of violence that has already occurred. The threats are pretty credible.

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April Marie Zeoli: and

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Tim Carey: possession of firearms, even by persons subject to rest about protective orders.

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April Marie Zeoli: I don't know about you.

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April Marie Zeoli: but

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April Marie Zeoli: if someone was pointing a gun at me

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Tim Carey: they'll under the plain text of the Second Amendment, and then

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April Marie Zeoli: I would do whatever they told me to do.

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Tim Carey: dismissed

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Kelly Roskam (she/her/hers): Oh, definitely.

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Tim Carey: comparisons to the following historical laws of disarming dangerous persons, going arm laws and surety laws.
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Tim Carey: the Fifth Circuit Court of Appeals first looked to the plain text of the Second Amendment itself to certain if the law even implicated it.

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April Marie Zeoli: So I expect that

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April Marie Zeoli: these victimized partners are doing whatever their abuser tells them to do, and in that way using a firearm in domestic violence is an incredibly powerful tool to continue to keep that partner under their thumb.

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Tim Carey: but not everyone was as bought into this responsible definition as Solicitor General was.

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Kelly Roskam (she/her/hers): Yeah. So some of the justices, I think, most notably Chief Justice Roberts, seemed a little apprehensive about how to define these terms of law abiding and responsible.

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Tim Carey: I wanna emphasize that point because so far, you you haven't even mentioned like using like firing the gun or physically harming. But there's even just the the threat of violence, because it's so well understood, it's so credible. It weaves into this this tapestry of manipulation and fear that leads to control and pain.

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Kelly Roskam (she/her/hers): and he posits what I consider to be some really absurd hypotheticals about somebody who drives 30 miles per hour in a 25 mile per hour zone is a law-abiding citizen. whether somebody who doesn't take their recycling to the curb on Thursdays, or who yells at a basketball game is a responsible citizen.

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Tim Carey: and they concluded that it did, that the Second Amendment covered possession of firearms by persons subject to protective orders people like Rahimi

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Tim Carey: in.

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Tim Carey: and the opposition and the Government, and attempting to uphold the law, had argued that Rahimi was not among the people to whom the Second Amendment applies because he was neither law abiding nor responsible.
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Kelly Roskam (she/her/hers): So the fifth circuit disagreed and argued that this law, abiding and responsible citizen language, which is literally everywhere in Supreme Court, second Amendment cases in Heller. Donald. Ruin so so many times

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April Marie Zeoli: Absolutely does. And we know from the research that when a gun is used.

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April Marie Zeoli: you know, threatened in intimate partner violence

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April Marie Zeoli: versus when there's intimate partner, violence and a gun isn't used.

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April Marie Zeoli: The person who had the gun used against them experiences more symptoms of post traumatic stress disorder than the person who was similarly victimized, but it didn't involve a gun.

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Tim Carey: General Prelogar's response here was to clarify that not anyone who is deemed irresponsible in the colloquial common sense would fall under this. She's saying that individuals who are not deemed responsible are intrinsically tied to the danger that you would present if you have access to firearms. Again, whether or not you intended to be dangerous.

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Tim Carey: That's the haunting figure, but it segues neatly into the next question I wanted to ask you, which is.

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Tim Carey: what does the evidence tell us about gun accessibility, domestic violence and dangerousness and harm.

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April Marie Zeoli: A seminal study from 2003, led by Dr. Jacqueline Campbell.

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April Marie Zeoli: found that when a domestic abuser, a male domestic abuser, has access to a firearm. The risk that the female intimate partner will be killed increases by 5-fold, and your listeners may have heard that statistic before. It is a very well-known statistic.
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April Marie Zeoli: the percentage of intimate partner homicides that involve a gun

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Tim Carey: We’re now going to look to look to the court’s treatment of this issue.

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Tim Carey: so briefly, I'll take you all back to a time before the summer of 2022.

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Kelly Roskam (she/her/hers): lit me

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Kelly Roskam (she/her/hers): Some of the good times.

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Kelly Roskam (she/her/hers): of dangerous behavior. I mean, I've I've hardly seen something so sanitized.

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Tim Carey: Some

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Kelly Roskam (she/her/hers): And I think that's really the crux of it that the the Supreme Court gets to decide how to define these terms, and I think, in relation to people subject to domestic violence, protective orders. All the evidence-based research that we heard from Dr. Zeoli earlier clearly shows that these individuals represent a danger by having access to firearms.

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Tim Carey: where we were living in a post Heller world. From the early 2000’s where the Supreme Court first recognized an individualized right to bear arms, but before the Bruen opinion.
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Tim Carey: A few courts had evaluated

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Kelly Roskam (she/her/hers): is just shorthand explaining that it's decision that the second amendment confers an individual right shouldn't be taken to cast doubt on these long standing prohibitions like prohibitions on possession of firearms like felons or the mentally ill

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Tim Carey: So that was step one, and we're only halfway done.
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Kelly Roskam (she/her/hers): Yeah. So in addition, at the second step of the Bruen framework, the fifth circuit also found no sufficiently analogous historical laws.

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Kelly Roskam (she/her/hers): it's just. It's just an explanation.

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Tim Carey: this exact law issue today, this Federal law.

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April Marie Zeoli: has been increasing.

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Tim Carey: And on the topic of dangerousness. That's really what the court focused on next.

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Tim Carey: In their eyes, and even though Rahimi was, as they called it, a suspect of criminal activity, they decided that because he wasn't a convicted felon, or the subject of these other longstanding prohibitions, that the Supreme Court has alluded to, that

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Tim Carey: and overwhelmingly they held it as being constitutional, and that even holds true at the Circuit Court of appeals level where they're

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April Marie Zeoli: and because of that, the number of intimate partner homicides in our country have been increasing

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Tim Carey: So several justices appeared to accept the premise that dangerous people may be lawfully disarmed.

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April Marie Zeoli: the number of intimate partner homicides that use other weapons.

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Tim Carey: validation was unanimous. And I mean, this is the third circuit, the fourth circuit, the fifth circuit, the eighth circuit, and the tenth circuit. All looked at this law, it said, under the present test it passes constitutional muster.

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April Marie Zeoli: It's flat. It hasn't increased at all. We're seeing an increase in intimate partner homicide, and it is driven by the use of guns.
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Kelly Roskam (she/her/hers): And so I wanted to ask, we we've spoken a lot about the risk of armed domestic abusers for their intimate partners. But are there other individuals at risk of harm from those folks.

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Kelly Roskam (she/her/hers): And justice. Kavanaugh seems to agree as well. He has this exchange with the Solicitor General, where he asks her to clarify that this not responsible category permits the regulation of firearms by dangerous persons. and the solicitor general replies, yes. that not responsible category includes people who are dangerous

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Tim Carey: this

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Tim Carey: case implicated his rights in their second amendment. And this is a part of the case. The opinion that really struck with me is they're framing.

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Kelly Roskam (she/her/hers): Yeah, I'm actually, I'm not aware of any pre Bruen case

00:08:50.430 --> 00:08:53.210
Kelly Roskam (she/her/hers): striking down the law. And I think that's why you know, before Bruen came out. Many Second Amendment scholars expressed

00:08:53.210 --> 00:08:59.570
Tim Carey: And this is a quote from the majority opinion that Rahimi, while hardly a model citizen.

00:08:59.570 --> 00:09:00.610
Kelly Roskam (she/her/hers): a a belief that this kind of unanimity that we can disarm domestic abusers would would continue after Bruen.

00:09:00.610 --> 00:09:01.759
Tim Carey: is nonetheless among the people entitled to the second amendments, guarantees all other things equal

00:09:01.759 --> 00:09:05.369
Kelly Roskam (she/her/hers): as well as people who are not intentionally dangerous.

00:09:05.719 --> 00:09:06.000
stop audio
Kelly Roskam (she/her/hers): to which he replies in the most colorful fashion.
o 00:40:18 --> 00:40:20
Justice Kavanaugh: Good. Thank you.
Start audio 00:00:02.690 --> 00:00:34.050
Tim Carey: Then Justice Alito weighs in and poses a hypothetical to Rahimi's counsel, asking him to imagine that a State judge determines, after a hearing, that a man has repeatedly threatened to shoot members of his family, has brandished their gun, has terrified them, and so on, and enters a restraining order, preventing that man from possessing a firearm in any place, including the home and he asks him, is that constitutional? And Rahimi's council answers probably yes.
Start audio 00:09:54.340 --> 00:10:04.439
Kelly Roskam (she/her/hers): Which is pretty telling when you consider that the facts positive by justice, Alito, are not terribly different from the facts in this case.

00:09:06.000 --> 00:09:08.170
Justice Barrett: “I think there would be little dispute that someone who was guilty, say, or even had a restraining order -- that domestic violence is dangerous, okay. So someone who poses a risk of domestic violence is dangerous.”

00:09:08.170 --> 00:09:08.260
Tim Carey: does the law or regulation at issue

00:09:08.260 --> 00:09:09.610
Tim Carey: And yet

00:09:09.610 --> 00:09:10.070
stop audio
Tim Carey: end. Quote at which, I ask, is this not among the greatest understatements of our time?
Start audio 00:07:51.380 --> 00:07:54.090
Kelly Roskam (she/her/hers): Especially after hearing that

00:09:10.070 --> 00:09:11.190
Tim Carey: we now find ourselves post summer of 2022.

00:09:11.190 --> 00:09:12.420
Tim Carey: implicate it?

00:09:12.970 --> 00:09:14.210
Tim Carey: If not

00:09:14.360 --> 00:09:15.000
stop audio
Tim Carey: case closed?
Start audio 00:10:11 --> 00:10:12.490
But if it did.

00:09:15.630 --> 00:09:20.369
Tim Carey: NYSRPA v. Bruen is the law of the land. Regarding the Second amendment

00:09:21.560 --> 00:09:26.209
Tim Carey: and some courts. Evaluations of this Federal law have

00:09:26.420 --> 00:09:27.060
stop audio
Tim Carey: changed in light of the shifting test
Start audio 00:08:53.381 --> 00:09:07.808
Tim Carey: Bruen has 2 steps that courts must work through when evaluating second Amendment claims. The first is largely consistent with the Pre Bruen test, which it looks to the second amendments plain text, and looking at the text.

00:09:27.060 --> 00:09:33.409
April Marie Zeoli: There are. Intimate partner homicides that involve a gun.

00:09:33.560 --> 00:09:36.529
April Marie Zeoli: So when a gun is used to kill your intimate partner.

00:09:36.910 --> 00:09:40.540
April Marie Zeoli: those homicides are more likely to involve

00:09:40.970 --> 00:09:48.149
stop audio
April Marie Zeoli: another victim, another homicide victim than intimate partner homicides that don't involve a gun.
Resume audio 00:09:59.890 --> 00:10:01.040
April Marie Zeoli: and

00:10:01.070 --> 00:10:02.470
April Marie Zeoli: part of that

00:10:02.710 --> 00:10:04.440
April Marie Zeoli: is because of the lethality of guns. We know guns are uniquely lethal. They're a range weapon. Yeah, which is unlike other weapons we generally have at our disposal in our households, and

00:10:04.440 --> 00:10:12.670
Tim Carey: Almost identical. and no moment in oral argument emphasized this point. More than this exchange between Chief Justice Roberts and Rahimi's counsel.
Start audio: 01:08:32 --> 01:08:48 stop audio
CHIEF JUSTICE ROBERTS: Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?
MR. WRIGHT: Your Honor, I would want to know what "dangerous person" means. At the moment --
CHIEF JUSTICE ROBERTS: Well, it means someone who's shooting, you know, at people. That's a good start.
(Laughter.)
MR. WRIGHT: So -- so that's fair.

00:10:12.670 --> 00:10:18.770
Tim Carey: the burden shifts to the government in step 2 to show that the law regulation is consistent with, and I quote “the nation's historical tradition of firearms regulation”, and these words have been, these very broad words have left courts and other advocates, and an array of confusion, in the years proceeding

00:10:18.770 --> 00:10:21.421
April Marie Zeoli: bullets do a lot of damage to the human body.

00:10:21.421 --> 00:10:23.360
Kelly Roskam (she/her/hers): And interestingly. Actually, it first published an opinion in the case in February of 2023, where they rejected historical laws, disarming persons perceived to be dangerous, so historical laws disarming enslaved persons, free black persons, native Americans, and persons who refuse to swear oaths of loyalty.

00:10:23.360 --> 00:10:23.950
April Marie Zeoli: So if I have a gun, it may be a matter of

00:10:23.950 --> 00:10:28.040
Kelly Roskam (she/her/hers): So in some ways I I do almost feel bad for Rahimi's counsel. He's got a really tough case here to defend and Justice Kagan really calls him out on this.

00:10:28.040 --> 00:10:31.269
April Marie Zeoli: switching my position in my stance to shoot someone else.

00:10:31.700 --> 00:10:33.650
April Marie Zeoli: you know. If I have a knife

00:10:33.990 --> 00:10:34.370
Tim Carey: where they're trying to determine what really constitutes a tradition. I mean. The Supreme Court noted that it could be how and why a law was enacted in the past, and if those reasonings were consistent with, or comparable to justifications today, then, perhaps, that could hold.

00:10:34.370 --> 00:10:37.239
April Marie Zeoli: I have to get to them. I have to, you know.

00:10:37.410 --> 00:10:39.930
April Marie Zeoli: Stab them. I don't mean to be gruesome, but it's a lot more difficult to kill someone with a knife. It's a lot harder

00:10:39.930 --> 00:10:42.170
Tim Carey: And definitely want to provide a caveat. This is not a dig at an appointed counsel for Rahimi or otherwise. This attorney didn't choose this case, and he's a Federal public defender, and everyone deserves legal defense, especially the criminal stage. But that being said, given the gravity of this case, and what's at stake. we will take as arguments to task.

00:10:42.170 --> 00:10:44.750
Tim Carey: And keep in mind that these laws.

00:10:44.750 --> 00:10:45.280
April Marie Zeoli: than it is with a gun.

00:10:45.280 --> 00:10:46.950
Tim Carey: though historical and precedent, setting to a degree, are

00:10:46.950 --> 00:10:50.280
April Marie Zeoli: so we see more victims. When guns are used.

00:10:50.280 --> 00:10:51.080
Tim Carey: awful.

00:10:51.430 --> 00:10:51.690
Kelly Roskam (she/her/hers): Oh, I mean absolutely, completely discriminatory. But

00:10:51.690 --> 00:10:51.950
Tim Carey: But ultimately most courts are left with trying to discern whether there were analogies that could be drawn from historical regulations to laws in the modern day. Given just how much our society and the issue of gun violence has changed in the last few hundred years.

00:10:51.950 --> 00:10:55.550
Tim Carey: And who might these victims be? Because, as if it were not, weren't enough, that intimate partners are experiencing this harm and this violence? It seems like it implicates other members of the public as well.

00:10:55.550 --> 00:10:59.140
Kelly Roskam (she/her/hers): Bruen asks us to look for historical laws.

00:10:59.770 --> 00:11:01.840
Tim Carey: That's where we find ourselves. Yes.

00:11:01.840 --> 00:11:04.490
Kelly Roskam (she/her/hers): Exactly so. The fifth circuit rejected these because in that first opinion they said that they disarmed people by class or group.

00:11:04.490 --> 00:11:05.220
Kelly Roskam (she/her/hers): Yeah. And so, in addition to the exchanges that we played above, you know, there are several places where Rahimi's council seems to admit that

00:11:05.220 --> 00:11:06.149
April Marie Zeoli: It does.

00:11:06.340 --> 00:11:08.360
April Marie Zeoli: Most of the other victims are family members.

00:11:08.360 --> 00:11:10.260
Kelly Roskam (she/her/hers): And actually, after Bruen, the overwhelming number of courts that evaluated the law prohibiting people subject to these domestic violence protective orders from having firearms

00:11:10.260 --> 00:11:10.430
April Marie Zeoli: Large percentage of those are children.

00:11:10.430 --> 00:11:12.870
Kelly Roskam (she/her/hers): not after individualized findings of credible threats to identify potential victims.

00:11:12.870 --> 00:11:13.530
April Marie Zeoli: Sometimes it's just the other people who were there, you know. So a friend of the intimate partner? Or if the attack happened while the intimate partner was at work, it could be Co workers. Sometimes it's law enforcement who showed up to the scene.

00:11:13.530 --> 00:11:17.730
Kelly Roskam (she/her/hers): with a sufficient showing of dangerousness, that it is constitutional to disarm those individuals, but then says that you know it's unconstitutional in the case of Zacky Rahimi. And so Justice Kagan says what I think maybe all of us were thinking

00:11:17.730 --> 00:11:19.020
Kelly Roskam (she/her/hers): Like, we're just too good at it today.

00:11:19.020 --> 00:11:20.830
Kelly Roskam (she/her/hers): also upheld it, finding that it is consistent with the national historical tradition of disarming dangerous persons.

00:11:20.830 --> 00:11:26.580
Tim Carey: It's like what a sentiment that we have such a better idea over who is and who isn't dangerous. Now

00:11:26.580 --> 00:11:27.620
Kelly Roskam (she/her/hers): But there are a few notable exceptions.

00:11:27.620 --> 00:11:29.620
Tim Carey: that we can't apply

00:11:29.790 --> 00:11:30.080
Tim Carey: blanket restrictions like we did, based off prejudice in the past.

00:11:30.080 --> 00:11:33.070
Tim Carey: Exactly, and the first takes us to the western district of Texas, where many of our favorite decisions arise

00:11:33.070 --> 00:11:34.250
April Marie Zeoli: I want to mention that if we're defining in a mass shooting as the killing of 4 or more people. In one event.

00:11:34.250 --> 00:11:37.760
Kelly Roskam (she/her/hers): And they were rightly skewered by OP. Eds from Legal Academics.

00:11:37.760 --> 00:11:40.140
Tim Carey: where a court struck down

00:11:40.140 --> 00:11:41.100
Kelly Roskam (she/her/hers): which is probably why, in March they issued a substitute opinion, which is kind of unusual

00:11:41.100 --> 00:11:43.250
Tim Carey: this Federal law for

00:11:43.730 --> 00:11:44.250
Tim Carey: the first time, and really put this issue back on our radars.

00:11:44.250 --> 00:11:46.890
April Marie Zeoli: quite a lot about half

00:11:46.890 --> 00:11:47.000
Kelly Roskam (she/her/hers): removing that prior language. Instead, they say they reject those historical laws because the court asserted that they served a different purpose

00:11:47.000 --> 00:11:47.630
April Marie Zeoli: of mass shootings.

00:11:47.630 --> 00:11:49.420
Tim Carey: and in doing so

00:11:50.000 --> 00:11:50.360
Tim Carey: use barely

00:11:50.360 --> 00:11:52.090
April Marie Zeoli: are intimate partner violence

00:11:52.090 --> 00:11:52.300
Tim Carey: poetic

00:11:52.300 --> 00:11:53.340
Kelly Roskam (she/her/hers): solicitor, general Prelogar does a really good job of explaining that, you know, in applying the Bruen framework. What we should be looking for at the founding are these higher general principles, like the ability to disarm this dangerous disarm? Dangerous people.

00:11:53.340 --> 00:11:53.390
Tim Carey: rhetoric.

00:11:53.390 --> 00:11:55.340
April Marie Zeoli: shootings. In fact, it's more than half involve

00:11:55.340 --> 00:11:56.520
Kelly Roskam (she/her/hers): Yeah, poetic is right. It's like a very Shakespearean. This opinion opens up with Judge Counts

00:11:56.520 --> 00:11:58.130
Kelly Roskam (she/her/hers): to preserve political and social order not to protect an identified person.

00:11:58.130 --> 00:12:01.420
April Marie Zeoli: the shooting of an intimate partner or family member

00:12:01.430 --> 00:12:02.380
April Marie Zeoli: and an additional percentage of those involve shooters who have a domestic violence history. So

00:12:02.380 --> 00:12:03.065
Kelly Roskam (she/her/hers): but

00:12:03.350 --> 00:12:04.000
Kelly Roskam (she/her/hers): describing the second amendment as

00:12:04.000 --> 00:12:06.210
Kelly Roskam (she/her/hers): seems to ignore the idea that, like

00:12:06.590 --> 00:12:06.950
Kelly Roskam (she/her/hers): this abandoned cabin in the woods neglected with, you know, the the vines and weeds and roots of gun regulations

00:12:06.950 --> 00:12:09.760
Kelly Roskam (she/her/hers): women's safety, which is primarily what we're talking about, has no impact on political or social order. Today.

00:12:09.760 --> 00:12:11.890
Kelly Roskam (she/her/hers): and then determining whether the modern law comports with those principles, and that that is not the same as the type of interest balancing that courts were doing prior to Bruen.

00:12:11.890 --> 00:12:16.020
April Marie Zeoli: the public is involved in this, and even if it weren't a mass shooting.

00:12:16.020 --> 00:12:17.340
Tim Carey: It, perhaps not in the eyes of the founders.

00:12:17.340 --> 00:12:18.850
April Marie Zeoli: the community is hurt. When intimate partner violence occurs.

00:12:18.850 --> 00:12:20.530
Kelly Roskam (she/her/hers): crawling up all over it.

00:12:20.530 --> 00:12:21.690
Tim Carey: Exactly, and Rahimi's council repeatedly argued throughout the case that there were no blanket bans on fire and possession for members of the political community that he could see around the founding area. Thus prohibitions, like the one issue in this case, were unconstitutional under Bruen. But that can't really be reconciled with his recognition that with a sufficient showing of dangerous this, that persons can be disarmed in other instances, just not his clients.

00:12:21.690 --> 00:12:21.850
Tim Carey: And that Bruen really left it to judges to decide whether or not they would approach this cabin with a a scalpel or a chainsaw to deal with the weeds of regulation, and in this opinion the judge chose the chainsaw.

00:12:21.850 --> 00:12:22.560
Tim Carey: so.

00:12:22.560 --> 00:12:23.520
Kelly Roskam (she/her/hers): Certainly today.

00:12:23.520 --> 00:12:25.770
stop audio
April Marie Zeoli: it affects the children it affects, you know, the children's ability to function at school to grow up as a healthy adult. It affects, you know, that person, that victimized partners, ability to go to work, to contribute, you know, to do all of these things. So it it isn't something that is bound in the home.
Resume audio 00:13:41.670 --> 00:13:57.140
Kelly Roskam (she/her/hers): Absolutely. So a lot of the States that have domestic violence. Protective orders also include fire prohibitions. Of course, the Federal law that prohibits people subject to protective orders from having firearms? Is that part of the case that we're talking about today?

00:12:25.770 --> 00:12:37.600
Tim Carey: And and yet the fifth circuit reached this conclusion. They also found rejected as not sufficiently analogous historical laws that prohibited people going armed to the terror of the people. The fifth circuit doubted that historical going to armed laws

00:12:37.600 --> 00:12:41.849
Kelly Roskam (she/her/hers): And chose, I think, the right word for this. Him, like

00:12:42.090 --> 00:12:44.220
Kelly Roskam (she/her/hers): Judge Counts openly, admits in this opinion that you know, under the Bruen framework.

00:12:44.220 --> 00:12:49.290
Tim Carey: identified by the government in 4 American colonies, was sufficient enough to establish a historical tradition. This circuit also noted that North Carolina's going armed law never required forfeiture firearms that Massachusetts and Virginia's amended their laws to remove forfeiture as a penalty.

00:12:49.290 --> 00:12:51.580
Kelly Roskam (she/her/hers): different courts evaluating the same modern laws.

00:12:51.580 --> 00:12:51.944
Kelly Roskam (she/her/hers): Yeah.

00:12:53.939 --> 00:12:54.290
Kelly Roskam (she/her/hers): Analogizing it to the same history, could come to

00:12:54.290 --> 00:12:57.900
Tim Carey: So, then enters Justice Thomas, who is largely quiet during oral argument, but weighed in to press on this civil versus criminal distinction at issue in this case, where you say that without a doubt, if this, if Rahimi was processed under criminal system on our criminal order that that would be treated categorically differently than the present case, where Rahimi was prohibited from possessing firearms under a civil order. But history doesn't really view that distinction to prepare that much meaning.

00:12:57.900 --> 00:13:04.570
stop audio
Kelly Roskam (she/her/hers): completely opposite conclusions about the constitutionality, and both could be right under Bruen.
Resume audio 00:13:45.830 --> 00:13:57.250
Tim Carey: And yet this isn't even the case we're focusing on today. Rather, we're focusing on another case that, or is from a similar area of the country that worked its way up to the Fifth Circuit Court of Appeals.

00:13:04.570 --> 00:13:06.680
Kelly Roskam (she/her/hers): But but hold on, so hold on!

00:13:07.050 --> 00:13:11.789
Kelly Roskam (she/her/hers): Massachusetts removed forfeiture as a penalty. 4 years

00:13:11.950 --> 00:13:15.029
Kelly Roskam (she/her/hers): after the adoption of the Second Amendment.

00:13:15.090 --> 00:13:19.100
Kelly Roskam (she/her/hers): and Virginia removed it 56 years

00:13:19.150 --> 00:13:22.640
Kelly Roskam (she/her/hers): after the adoption of the Second Amendment. So like I don't.

00:13:23.560 --> 00:13:28.820
Kelly Roskam (she/her/hers): I don't think they did it because they thought it was unconstitutional. 56 years later.

00:13:29.270 --> 00:13:30.920
Tim Carey: And yet the first circuit reached this conclusion, they observe but the going arm laws only required forfeiture after a criminal proceeding, and conviction, which to them, as compared to the civil proceeds of protective orders, seem like a very fine line.

00:13:30.920 --> 00:16:18.910
Kelly Roskam (she/her/hers): No, and solicitor. General Prelogar specifically points to these historical laws, disarming individuals who refuse to swear oaths of loyalty? As well as surety laws which allow justices of the piece to impose monetary bonds on individuals who are likely to be dangerous, but none of those make a distinction between civil and criminal, either. So a couple of other things that were brought up during the oral argument were these bids, for as applied challenges or collateral challenges to the Federal law at issue here. So you might recall that the Federal law, prohibiting people subject to domestic violence, protective orders from possessing firearms includes a requirement either of a finding of credible threat to the physical safety of the intimate partner or child, or that the explicit terms of the order prohibit certain types of activity. And so Justice Alito, in particular, says, well, isn't that second sort of boilerplate language problematic?
But of course.way back in 2001 in a different case called United States versus Emerson. The 5th circuit recognized this almost universal rule of American law that
orders cannot be issued where there is just a speculative injury that there has to be this presently existing actual threat of irreparable harm.
So even though the court may not make this explicit, finding they they can't just issue orders and also that this credible threat finding can be as much boilerplate as those explicit prohibitions additionally, he raised as potentially problematic this concept of mutual protective orders. But, as we mentioned, 48 States prohibit or substantially restrict the issuance of mutual protective orders. He also raised as potentially problematic, so called, permanent protective orders. So there are very few states that issue some non time limited protective orders. But person subject to those orders can make motions for them to be terminated, and then, finally, he raises as potentially problematic a insufficient procedural, due process. But Justice Sotomayor and even justice. Gorsuch recognize none of those things are an issue in this facial challenge to the law. And so they really don't have to make a decision on those.

00:13:45.470 --> 00:13:57.710
Tim Carey: and additionally, the fifth circuit asserted that going armed laws, like the dangerous laws Kelly mentioned earlier, were to just arm people who pose a threat to the public as a whole, as opposed to identifiable

00:13:57.710 --> 00:13:58.500
Kelly Roskam (she/her/hers): Do these types of laws? Do they make a difference.

00:13:58.500 --> 00:14:00.020
Tim Carey: And whereas

00:14:00.060 --> 00:14:00.200
Tim Carey: for as Gallon perhaps used

00:14:00.200 --> 00:14:01.730
Tim Carey: individuals.

00:14:01.730 --> 00:14:01.910
Kelly Roskam (she/her/hers): Well. And and yet again, I just wanna point out.

00:14:01.910 --> 00:14:03.280
April Marie Zeoli: They do make a difference. We actually have quite a few studies now. Including some of my own, that demonstrate through rigorous research.

00:14:03.280 --> 00:14:06.430
stop audio
Tim Carey: colorful wording, this case, United States versus Rahimi, you could say, had more colorful or memorable facts.
Case History

00:14:06.430 --> 00:14:09.180
Kelly Roskam (she/her/hers): women are part of the public.

00:14:09.680 --> 00:14:13.110
Kelly Roskam (she/her/hers): And we also heard from Dr. Zioli that

00:14:13.240 --> 00:14:13.320
April Marie Zeoli: that

00:14:13.320 --> 00:14:14.340
Kelly Roskam (she/her/hers): a large percentage of mass shooters have a history of domestic violence, so they do pose a threat to the public.

00:14:14.340 --> 00:14:17.029
April Marie Zeoli: when these laws are in place.

00:14:17.200 --> 00:14:23.040
April Marie Zeoli: intimate partner, homicide in a state, some studies are at the city level, intimate partner homicide decreases. After these laws are put into place.

00:14:23.040 --> 00:14:27.500
Kelly Roskam (she/her/hers): Finally, the fifth circuit, rejected as insufficiently analogous these historical surety laws which allowed a justice of the peace to require an individual to post a bond. So money, if they determined that there was a just cause to fear that the individual who was carrying a weapon would injure others or destroy property which sounds a lot like protective orders.

00:14:27.500 --> 00:14:29.000
April Marie Zeoli: We also know

00:14:29.000 --> 00:14:29.590
JUSTICE JACKSON: Then what's the point of going to the Founding Era? I mean, I thought it was doing some work.
Start audio 00:17:43.570 --> 00:17:46.800
Tim Carey: she also raised a concern that

00:14:29.590 --> 00:14:30.560
April Marie Zeoli: that.

00:14:32.290 --> 00:14:42.632
April Marie Zeoli: it's not just intimate partner homicides committed with a firearm that decrease. It's the total number of intimate partner homicides.

00:14:43.320 --> 00:14:45.160
April Marie Zeoli: And the reason that's important is because you hear a lot of people say or think if someone can't get a gun and they wanna kill their intimate partner or anybody really, they're gonna find another way to do it.

00:14:45.160 --> 00:14:49.499
Kelly Roskam (she/her/hers): and they noted that these historical laws have a similar purpose

00:14:49.510 --> 00:14:53.450
Kelly Roskam (she/her/hers): and a similar mechanism. They're both civil processes.

00:14:53.710 --> 00:14:59.270
Kelly Roskam (she/her/hers): but they asserted that was a partial restriction only, and so not similar enough.

00:14:59.270 --> 00:15:01.460
stop audio
April Marie Zeoli: But that thinking ignores the lethality of guns, and it also ignores how many of these homicides occur.
Resume audio 00:17:11.230 --> 00:17:14.559
Kelly Roskam (she/her/hers): it seems like it's really important for us to have these things.

00:15:01.460 --> 00:15:08.300
Tim Carey: So very fine tooth comb going through these regulations. So if this in of itself was not enough

00:15:08.560 --> 00:15:11.369
Tim Carey: to get you caught up on this case the the

00:15:11.830 --> 00:15:14.509
Tim Carey: the washing of facts and

00:15:14.520 --> 00:15:16.490
Tim Carey: domestic violence and abuse.

00:15:16.500 --> 00:15:26.049
Tim Carey: the egregiously narrow rendition of history that seems to exclude the very notion of women as being people or members of society.

00:15:26.340 --> 00:15:30.040
Tim Carey: It's that's not even really the worst part of it all.

00:15:30.040 --> 00:15:35.930
Kelly Roskam (she/her/hers): No. The worst part, in my opinion, is this concurrence from Judge James ho!

00:15:36.680 --> 00:15:50.619
Kelly Roskam (she/her/hers): So at the beginning, he says, you know one of the big problems with these civil protective orders are that they're civil. And instead, we should be incarcerating all abusers.

00:15:51.490 --> 00:15:52.530
Tim Carey: Or on the way.

00:15:52.800 --> 00:15:58.530
Kelly Roskam (she/her/hers): Yes, exactly, and and then we can prohibit them from having firms, which is

00:15:58.690 --> 00:16:01.860
Kelly Roskam (she/her/hers): absolutely wild when you read on.

00:16:01.930 --> 00:16:04.529
Kelly Roskam (she/her/hers): and he favorably talks about

00:16:04.690 --> 00:16:07.519
Kelly Roskam (she/her/hers): using pretrial detention

00:16:07.600 --> 00:16:09.840
Kelly Roskam (she/her/hers): before a conviction

00:16:10.190 --> 00:16:12.509
Kelly Roskam (she/her/hers): to impose firearm restrictions.

00:16:14.200 --> 00:16:17.240
Tim Carey: Like that's an absolute deprivation of

00:16:17.520 --> 00:16:19.290
Tim Carey: all rights, and they haven't even had a a hearing yet. They don't even know if they're guilty. But just the fact that it's criminal instead of civil seems to make all the difference here.

00:16:19.290 --> 00:16:29.120
Tim Carey: And even in the circumstances that they were, I mean again, these orders have been applied constitutionally, without issue or decades.

00:16:29.120 --> 00:16:31.080
Kelly Roskam (she/her/hers): I? Yeah, I guess.

00:16:31.552 --> 00:16:31.830
Kelly Roskam (she/her/hers): Judge ho! Goes on to say that

00:16:31.830 --> 00:16:34.040
Kelly Roskam (she/her/hers): Absolutely. I mean, there are many cases finding that the procedures for the issuance of these types of protective orders absolutely satisfied due process.

00:16:34.040 --> 00:16:42.789
Kelly Roskam (she/her/hers): not citing any empirical evidence, by the way, that another problem with these civil protective orders are that they are often used

00:16:42.950 --> 00:16:47.950
Kelly Roskam (she/her/hers): to tactical advantage in divorce and custody proceedings.

00:16:48.220 --> 00:16:54.669
Tim Carey: Your stereotypical scoring lover is trying to take away her man's rights, to bear arms.

00:16:54.910 --> 00:16:58.819
Kelly Roskam (she/her/hers): I mean, that really seems to be the subtext, and it's in

00:16:58.880 --> 00:17:07.300
Kelly Roskam (she/her/hers): absolute contradiction to what actual studies show, which is that when mothers in particular, mothers

00:17:07.310 --> 00:17:13.580
Kelly Roskam (she/her/hers): claim abuse in custody proceedings, it increases the risk of losing custody of children

00:17:13.750 --> 00:17:15.859
Kelly Roskam (she/her/hers): that risk nearly doubles

00:17:15.859 --> 00:17:16.190
April Marie Zeoli: It is important for us to have these have these laws, these firearm restrictions on domestic violence, protective orders? You know it can save a life. It can make

00:17:16.190 --> 00:17:19.050
Kelly Roskam (she/her/hers): when the dad Cross claims that mothers are lying to turn the children against the father.

00:17:19.050 --> 00:17:22.790
Tim Carey: And then we have Justice Jackson and she came in not as much for the facts of the case , but really to go straight for the framework itself. I mean Justice Jackson came straight for the inconsistencies and Bruen’s test. and never let them out of her sight. Throughout this argument.

00:17:22.790 --> 00:17:27.310
Kelly Roskam (she/her/hers): A junk science concept called parental alienation.

00:17:27.319 --> 00:17:28.379
Tim Carey: So if
152

00:17:28.559 --> 00:17:29.149
Tim Carey: women petitioning for these orders to try to sway custody proceedings is a strategy. It doesn't seem like a very good one.
153

00:17:29.149 --> 00:17:32.159
April Marie Zeoli: the person who's been victimized

00:17:32.479 --> 00:17:34.529
April Marie Zeoli: feel safer.

00:17:36.200 --> 00:17:41.210
Kelly Roskam (she/her/hers): Oh, my, it's the worst, it is it it? If it's a strategy, it is the worst strategy.

00:17:41.740 --> 00:17:46.850
Kelly Roskam (she/her/hers): Judge Hope also, basically kind of says that we shouldn't trust judges issuing these protective orders because

00:17:46.850 --> 00:17:49.680
Tim Carey: we're not looking at the history and tradition of all people

00:17:49.680 --> 00:17:51.850
Kelly Roskam (she/her/hers): they don't want to be on the front page if they deny one. And something happens.

00:17:51.850 --> 00:17:54.800
Tim Carey: in opinions like the 5th circuits and Rahimi that led us to this point.

00:17:54.800 --> 00:17:56.200
Tim Carey: Yeah, and not just a life. But as you've mentioned the lives of children, other family members, law enforcement, other community members

00:17:56.200 --> 00:18:00.789
Kelly Roskam (she/her/hers): But judges make important decisions all the time like, that's the job.

00:18:00.790 --> 00:18:02.870
Tim Carey: You would think, as a judge himself, he would be aware.

00:18:02.870 --> 00:18:03.560
Tim Carey: seems like there's a really wide scope of how impactful these laws can be.

00:18:03.560 --> 00:18:04.690
Kelly Roskam (she/her/hers): And so, despite the fact that Justice Saxon raises some really interesting points about the Bruen framework. I don't think it's likely for the court to abandon that Brune framework anytime soon. And so, perhaps, in recognition of this. justice, Kagan asks the softest of softball questions to Solicitor General Prelogar, which is basically like. how can we make the Bruen framework work better and solicitor, general Prelogar is absolutely ready for it.

00:18:04.690 --> 00:18:08.090
Tim Carey: And that's one of the reasons why, having a hearing before a judicial officer, be they a judge, be they magistrate, is such a profoundly important

00:18:08.090 --> 00:18:10.000
April Marie Zeoli: There is absolutely.

00:18:13.880 --> 00:18:14.680
Tim Carey: do process protection

00:18:14.680 --> 00:18:16.090
Tim Carey: So what do you think? Given your research and your expertise in this area.

00:18:16.090 --> 00:18:18.280
Tim Carey: because it's their job to

00:18:18.470 --> 00:18:19.720
Tim Carey: apply the law.

00:18:20.160 --> 00:18:20.700
Tim Carey: we would see if the Supreme Court said we could no longer prohibit people subject to domestic violence, protective orders from having firearms.

00:18:20.700 --> 00:18:26.663
Kelly Roskam (she/her/hers): Exactly, and then finally, he raises the specter of mutual protective orders.

00:18:27.200 --> 00:18:30.670
Kelly Roskam (she/her/hers): So this is the the idea where you know 2 people come before the judge, one who is petitioned for this protective order, and the other individual says, No, they're actually abusing me. And

00:18:30.670 --> 00:18:33.520
April Marie Zeoli: My fear is that

00:18:33.550 --> 00:18:36.720
April Marie Zeoli: we would see an increase in intimate partner homicides.

00:18:37.250 --> 00:18:37.702
Tim Carey: Oh yes!

00:18:37.702 --> 00:18:41.580
April Marie Zeoli: I would expect that we would see

00:18:41.580 --> 00:18:41.710
Kelly Roskam (she/her/hers): So the 1st point that solicitor, General Prelogar, makes is that this historical analysis should not be limited to just historical regulations or laws that we should look for broadly at the historical context. Our second point is that.

00:18:41.710 --> 00:18:43.510
Kelly Roskam (she/her/hers): in, you know, sort of this fantasy.

00:18:43.510 --> 00:18:44.830
April Marie Zeoli: a decrease in domestic violence, protective order, petitioners, feelings of safety.

00:18:44.830 --> 00:18:51.260
Kelly Roskam (she/her/hers): The judge kind of throws up their hands and they say, Well, I don't know. I'm gonna issue protective orders against both of you.

00:18:51.580 --> 00:18:53.670
Kelly Roskam (she/her/hers): But actually, the vast majority of States prohibit the issuance of mutual protective orders in this way.

00:18:53.670 --> 00:18:59.090
April Marie Zeoli: That would be much harder for us to measure easily. We have surveillance systems for homicide. We don't have large surveillance systems for feelings of safety. but

00:18:59.090 --> 00:19:00.040
Kelly Roskam (she/her/hers): So

00:19:00.160 --> 00:19:07.530
Kelly Roskam (she/her/hers): you are required in most places to individually petition for a protective order, and you must meet the criteria individually, in order to have one issued

00:19:07.530 --> 00:19:11.860
April Marie Zeoli: we would likely see that decrease in feelings of safety. You know we might see more non fatal firearm injuries as well.

00:19:11.860 --> 00:19:12.420
Kelly Roskam (she/her/hers): so.
170

00:19:12.420 --> 00:19:16.089
Tim Carey: Judges, judges don't just give these away.

00:19:16.120 --> 00:19:19.820
Tim Carey: There are findings of fact. There are hearings, there are processes.

00:19:19.820 --> 00:19:20.890
April Marie Zeoli: We might see less

00:19:20.890 --> 00:19:21.130
Kelly Roskam (she/her/hers): you know, unlike the 5th circuit which was looking for unreasonably close analogies.

00:19:21.130 --> 00:19:21.970
Tim Carey: It's

00:19:22.270 --> 00:19:22.510
Tim Carey: it just seems like Judge Ho’s concurrence is chasing after the specter of a fear that the actual women, being harmed.and other victims of domestic abuse and violence throughout the country pales in comparison

00:19:22.510 --> 00:19:26.240
April Marie Zeoli: trust. You know, less willingness to go and get that domestic violence, protective order, you know, for people who are using it

00:19:26.240 --> 00:19:32.460
Kelly Roskam (she/her/hers): that we should interpret the Constitution and our nation's history of regulation by looking for these broader general principles that are consistent with the spirit of the Constitution.

00:19:32.460 --> 00:19:34.590
April Marie Zeoli: for that firearm restriction.

00:19:36.360 --> 00:19:37.890
Kelly Roskam (she/her/hers): Well, let's hope the Supreme Court does the right thing here. Before we we move along, what would be your final thought

00:19:37.890 --> 00:19:42.320
Kelly Roskam (she/her/hers): and she says that this is also more consistent with the way we evaluate other constitutional rights.

00:19:42.320 --> 00:19:43.550
Tim Carey: to the hypothetical risk

00:19:43.550 --> 00:19:44.940
Tim Carey: And it's also consistent with how the Supreme Court has allowed the Second Amendment to apply to modern firearms and not just muskets and flintlock pistols, and like how the Second Amendment has been extrapolated, conformed to accept modern day advances in technology. So, too, should it be reactive to modern day necessities of regulation to help mitigate those changes.

00:19:44.940 --> 00:19:49.760
Tim Carey: that someone may have their gun temporarily removed

00:19:49.760 --> 00:19:51.170
Kelly Roskam (she/her/hers): for our listeners.

00:19:53.900 --> 00:19:54.580
April Marie Zeoli: that firearm violence is preventable.

00:19:54.580 --> 00:19:59.740
Kelly Roskam (she/her/hers): Yeah. Well, and Judge Ho was particularly sensitive about the opinion, because he actually writes to defend it in a completely unrelated case called United States versus Kirsty, which is actually about confronting witnesses. And so what are the main points of Fifth Circuit's panel opinion in Rahimi? First and foremost. This was a facial challenge to the Federal law, prohibiting possession of firearms by person, subject to domestic violence, protective orders.

00:19:59.740 --> 00:20:01.680
April Marie Zeoli: These are not

00:20:01.920 --> 00:20:08.500
April Marie Zeoli: events that you know. We can't stop. They're inevitable. It's going to happen. It's the cost of.

00:20:08.660 --> 00:20:12.410
April Marie Zeoli: the second amendment. That is not the case.

00:20:13.070 --> 00:20:13.590
April Marie Zeoli: We can prevent firearm violence.

00:20:13.590 --> 00:20:51.810
Kelly Roskam (she/her/hers): Absolutely. Her last point is that we should not be evaluating the historical record in such a way that the absence of regulation necessarily implies that legislatures of the time thought that those types of regulations were unconstitutional or inconsistent with the second amendment. You know, this is especially relevant in the context of domestic violence. We think about domestic violence much different today than we did at the time of the founding, but also domestic violence. Homicides. We're not really committed with firearms at that time, and so there's no reason that they would have been regulating in that way.

00:21:12.040 --> 00:21:32.590
April Marie Zeoli: These domestic violence protective orders are temporary, but the firearm restrictions on them are also temporary.

00:21:39.070 --> 00:21:53.569
stop audio
April Marie Zeoli: When somebody gets that domestic violence, protective order, which is predicated on evidence that that person, the respondent to the order, is a threat to the petitioner, safety.
Resume audio 00:22:07.730 --> 00:22:14.830
Tim Carey: Thank you for joining us, Dr. Zeoli. Though a sobering topic, it was a joy to talk and learn with you today, as always.

00:22:11.150 --> 00:22:15.139
Tim Carey: not an as supply challenge, not in their circumstances, but in every respect and every application of this law they could not see, it being constitutional.
The fifth circuit also seemed to be scouring the record for the very historical twins, the Supreme Court and Bruen told courts not to look for going back to the Perez Gallon case that we discussed earlier with the option of looking at gun regulations through either an approach of a chainsaw or a scalpel. I mean, they took the chainsaw. That is what this opinion was.

00:22:15.310 --> 00:22:17.160
April Marie Zeoli: Thank you so much. I enjoyed it.
Overview of Courts Treatment of Challenges to Protective Order Firearm Prohibition

00:22:25.580 --> 00:22:28.020
stop audio
Kelly Roskam (she/her/hers): what what is domestic violence.
Resume audio 00:23:32.000 --> 00:23:35.910
April Marie Zeoli: Intimate partner. Violence is when one partner wants to dominate control, have power over the other partner and takes steps to do so.

00:22:51.380 --> 00:22:53.369
Kelly Roskam (she/her/hers): And I think it's I. I mean that that

00:22:53.450 --> 00:22:55.480
Kelly Roskam (she/her/hers): that historical twinness that they seem to be looking for is particularly illustrated in the narrow reading of the purpose of these historical laws. This idea that, like preservation of social order, that the deaths and injuries of women have no impact on social order. And so the Federal Government in this case didn't even bother petitioning for every hearing. Before the entire panel of the fifth circuit. They petitioned straight to the Supreme Court. And in a somewhat, you know, rare circumstance. The Supreme Court agreed to hear the case.

00:22:55.480 --> 00:23:34.210
Tim Carey: Now we're in a position where or arguments have ended. It's been several months. The opinion on Rahimi could drop literally any day. Now, hopefully, after this episode, airs. And we've had a lot of time to think about what potential outcomes could be and based on what we heard during oral argument. It seems to us that the court will likely facially uphold the Federal prohibition, preventing people subject to domestic violence, protective orders from possessing firearms. but the real question is the scope of their opinion. How much will the court clarify Bruen’s test, if at all? If this is a narrow opinion that just upholds the law issue in the Supreme Court is going to see many more comparably absurd. Second Amendment cases come their way.

00:23:34.210 --> 00:23:37.810
Tim Carey: Which leads us to our next portion, where this case is heard by

00:23:37.850 --> 00:23:40.369
Tim Carey: the highest court in all the nation.
Rahimi Oral Argument

00:23:43.560 --> 00:23:49.540
April Marie Zeoli: Those steps can involve physical violence, they can involve sexual violence. More often or more frequently they involve things like psychological and emotional, be emotional abuse or financial abuse.

00:23:49.540 --> 00:23:59.160
Kelly Roskam (she/her/hers): And another thing that I'm gonna be looking for in the opinion when it's issued is whether and how many of the justices signal that they're open to these as applied or collateral challenges to the Federal law.

00:23:59.160 --> 00:24:09.869
April Marie Zeoli: What's important to understand is that this is a pattern of events. This is a pattern of strategies and tactics used daily.

00:24:10.490 --> 00:24:12.940
April Marie Zeoli: It isn't that, you know.

00:24:12.970 --> 00:24:16.929
April Marie Zeoli: Someone slaps you on Friday, and then

00:24:17.000 --> 00:24:42.357
April Marie Zeoli: they slap you every single day afterwards. Right? It's more, you know. There might be some physical violence on Friday, and then you know, Saturday and Sunday and Monday. There's more emotional abuse. So telling the victimized partner that they're worthless, that they will amount to nothing, that they're no good. You may be telling them what they can and can't wear, who they can and can't speak to.

00:24:42.730 --> 00:24:51.187
April Marie Zeoli: Isolation is used quite often, isolating people from their friends and family, so that they don't feel like they have someone to turn to

00:24:51.540 --> 00:25:04.280
stop audio
April Marie Zeoli: When things get really bad. That happens as well, and that just serves the abusive partners purpose of making the victim rely on them.
Resume audio 00:04:04.800 --> 00:04:12.640
April Marie Zeoli: Now, I've painted a really dire picture because intimate partner violence is severe and dire. But

01:13:22.000 --> 01:13:39.000
JUSTICE JACKSON: But we have a history and traditions test. I -- I guess I -- I'm a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts. So what do we do with that? Isn't that a flaw with respect to the test?

01:17:04.000 --> 01:18:00.000
JUSTICE KAGAN: I'll tell you the honest truth, Mr. Wright. I feel like you're running away from your argument, you know, because the implications of your argument are just so untenable that you have to say no, that's not really my argument.
I mean, it just seems to me that your argument applies to a wide variety of disarming actions, bans, what have you, that -- that we take for granted now because it's -- it's so obvious that people who have guns pose a great danger to others and you don't give guns to people who have the kind of history of domestic violence that your client has or to the mentally ill or what have you.
So I guess -- you know, I guess I'm asking you to clarify your argument because you seem to be running away from it because you can't stand what the consequences of it are.