OSD 243: Sympathy for the devil

On unsympathetic defendants.

On November 7, the Supreme Court is going to hear oral argument in United States v. Rahimi. The case concerns a man named Zackey Rahimi. Here’s what happened:

• On February 5, 2020, a Texas court granted Rahimi’s girlfriend a restraining order against him, after she testified that he assaulted her.

• Later, local police identified Rahimi as a suspect in an unrelated series of shootings between December 2020 and January 2021. A Texas prosecutor describes those crimes like so: “shooting into the residence of an individual to whom [Rahimi] had sold narcotics; shooting at another driver after a wreck, fleeing, returning in a different vehicle, and shooting again at the other driver’s car; shooting at a constable’s car; and shooting into the air after his friend’s credit card was declined at Whataburger (I am not making that last one up).”

• Police executed a search warrant at Rahimi’s house while investigating the shootings, and they found a rifle and a pistol.

• They arrested him for committing the federal crime of possessing firearms while under a domestic violence restraining order.

• Rahimi was convicted, and then sued to strike down that federal law as unconstitutional.

• The Fifth Circuit agreed with Rahimi and found the law unconstitutional.

• The federal government appealed that ruling. The Supreme Court agreed to hear the appeal and will make a final ruling on the case.

The law Rahimi was convicted under, 18 USC § 922(g)(8), reads like so:

It shall be unlawful for any person … who is subject to a court order that—

1. was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

2. restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

3. 1. includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

   2. by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

… to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

There are a few things in this case to consider all at once:

1. It’s a good idea to disarm someone who is being criminally violent.

2. Gun rights are a constitutional right on par with the right to free speech or the right to be free from unreasonable searches.

3. Rahimi is exactly the sort of person you’d want disarmed, especially if you were his girlfriend.

4. There’s an open question about whether 922(g)(8) is overly broad. The Cato Institute’s amicus brief goes into that, as does this thread from Clark Neily. The summary is that they describe some procedural steps which are normally present in court hearings that strip constitutional rights but are missing in 922(g)(8)-approved hearings (e.g. the right of the defendant to be represented by a lawyer). So Cato’s pitch is to keep the spirit of the law, but update it to include the procedural safeguards that are common in other domains.

Most of the press on the case is focused on #4, but let’s talk about #3. Rahimi is an unsympathetic defendant — all indications are that he’s a violent criminal. In law there’s an idea called “bad facts”. That’s when a case might have some academically interesting angle to it which may or may not be correct, but then you can’t even reach that question because the case is dominated by some ugly or inconvenient facts. It doesn’t even have to be an unsympathetic defendant. It could just be that the case has a complex procedural history, standing issues, or a million other things. Anything that distracts from the core question.

Conversely, you could have “good facts”. Sometimes those cases are even deliberately engineered. The original DC v. Heller case was engineered, with Dick Heller hand-picked by the Cato Institute from the very beginning. Rosa Parks’s protest was not engineered, but after her arrest the NAACP saw that her case teed up the core question of bus segregation nicely and they put their institutional muscle behind her.

Rahimi is … not Rosa Parks. And while he may be right that 922(g)(8) needs an update, it’s a lot simpler to just have tidy, sympathetic cases in the first place. There’s even an idea that it might be smarter to strategically moot Rahimi’s case in order to avoid a Supreme Court ruling that’s skewed by the bad facts here.

It’s impossible for the gun rights community to control who goes to court, and in any case, a lot of criminal defendants will by definition be unsympathetic (even when, unlike Rahimi, they are wrongfully accused). So it’s no use wishing that away. Instead the thing we can do is make the gun rights community itself more sympathetic, so that unsympathetic folks are seen as obvious exceptions rather than potential poster children. Be normal and friendly people that newbies want to learn more from.

We put it like this in “OSD 92: Gotta be friendly to make friends”:

From world history, US history, and even recent US history, there’s a stark lesson in this: unpopular minorities do not survive. You can be unpopular. You can be in the minority. But you can’t be both — at least not for long.

Gun rights folks sometimes fall into the trap of whining about the way things should be, but reality deals in the way things are. The way things are is that in order to thrive, we have to be popular, grow our numbers, or both. The good news is that both of those are happening. Gun rights have been getting almost monotonically more popular for 30 years and counting. This year, more people bought guns than in any year in history — about 4% of the total number of guns in the US were bought this year. These are positive trends for people’s gun rights. But keep your eye on the ball and remember that there is no escaping the power of these trends. If they point up, we’re set. If they point down, we’re not, no matter what else we do.

So keep them pointed in the right direction. That means building bridges and continuing to grow the community. And as ever, take newbies out to the range. See you out there.

See you out there.

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This week’s links

Fudd Busters on guns and credit card processors

Why banking is hard for the gun industry.

Woman killed in explosion at Hornady plant

One woman died and two men were injured Friday morning in an explosion at a Hornady Manufacturing plant west of Grand Island.

Hall County Attorney Marty Klein said the explosion happened in a chemical compound building at the Hornady plant at 8350 West Old Potash Highway, a Wood River address.

An essay on watching videos of people dying

CCTV footage. Body cam footage. He shouldn’t have run. He should have run. Why’d he walk left? He should have walked right. He should have concealed carry. But then he’d be in jail. No city is safe. The country isn’t safe either. And so on.

Personally, I think watching snuff clips takes a little bit of our soul, individually but also culturally. I think it shifts us toward some sort of naturalism, maybe one could even call it a kind of paganism, which treats humans as just another animal.

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Gun apparel you’ll want to wear out of the house.

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