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Saturday, June 22, 2024

Rahimi: Still Clear as Mud

Con Law specialists will have much to say about the content of Rahimi, but I have a further observation from an advocacy perspective.  Chief Justice Roberts's majority opinion describes the holdings in Heller and Bruen, and then says:

Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases.

First, note the grammar choice. Use of the present perfect continuous tense indicates that the misunderstandings occurred in the past and are still ongoing, which makes them more serious that the simple past or past perfect.

Then note the conjunction "nevertheless." Not, "unfortunately," and certainly not "predictably." In other words, despite SCOTUS's explanations, lower courts got it wrong.

Now the advocacy point: As I taught my students for fifty years: If someone misunderstands you -- especially a judge or juror -- it's your fault, not theirs.

Let me repeat that. It is the lawyer's job to speak or write with clarity. If there is a misunderstanding, it is the lawyer's mistake, not the readers' or the listeners'.

Roberts, however, takes no responsibility for the misunderstanding, in the passages that immediately follow his acknowledgement:

As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. 597 U. S., at 26–31. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. 

So you see, SCOTUS already explained everything, and the dense lower court judges just failed to follow instructions. There was nothing wrong with Bruen, as anyone should have been able to see. After all,

Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” Id., at 28. 

To paraphrase Erich Segal, being Chief Justice means never having to say you're sorry.

Posted by Steve Lubet on June 22, 2024 at 01:29 PM | Permalink


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