Unpacking Second Amendment Challenges: An Analysis of United States v. Rahimi, Garland v. Cargill, and National Rifle Association of America v. Vullo

Introduction

The Supreme Court of the United States has before it three Second Amendment-related cases that we expect rulings on in 2024. This blog will briefly cover the facts of all three cases and the potential outcomes of each. 

These cases cover diverse aspects, from the possession of firearms under domestic violence restraining orders, to the classification of bump-stock devices and the intersection of the First and Second Amendments in the regulatory actions against pro-gun activist groups. Together, they form a tapestry of legal challenges that demand scrutiny not just for their implications but for the methodologies guiding the Supreme Court’s decisions.

United States v. Rahimi

The first case, United States v. Rahimi was heard by the Supreme Court of the United States on November 7, 2023, and is currently under advisement.[1] Thus, it will likely be one of the first cases that will be decided in 2024. The issue in this case is whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face. 

In February 2020, a Texas state court granted a two-year domestic violence restraining order, prohibiting Rahimi from possessing a firearm while the restraining order was in effect. Rahimi then participated in multiple shootings which led police officers to secure a search warrant for his home where they found multiple firearms. Rahimi was then indicted for violating 18 U.S.C. § 922(g)(8).

To trigger § 922(g)(8), a restraining order must satisfy three conditions. First, a court must have issued the order after giving the person subject to it notice and an opportunity to be heard. Second, the order must forbid the person from harassing, stalking, or threatening an “intimate partner,” the person’s child, or an intimate partner’s child. Third, the order must either (1) include a finding that the person poses a “credible threat” to the physical safety of the intimate partner or child, or (2) explicitly prohibit the use, attempted use, or threatened use of physical force against the intimate partner or child. The restraining order in this case satisfied each of those requirements. Rahimi moved to dismiss the indictment, arguing that § 922(g)(8) violates the Second Amendment on its face.

The district court denied Rahimi’s motion and the Fifth Circuit Court of Appeals affirmed the district court’s denial, but withdrew its opinion after New York State Rifle and Pistol Association v. Bruen was decided in June 2022. The court reasoned that Rahimi fell within the scope of the Second Amendment.

To understand where the Supreme Court will come out on this issue, it is important to step back and look at who “the people” are that are referenced in the Second Amendment. The operative clause reads as follows: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The questions the Court likely will address include, “Does ‘the people’ referenced in the Second Amendment include prohibited possessors who have a qualifying domestic violence restraining order against them?” Or, “Is a qualifying domestic violence restraining order something that disqualifies you from being included in the political community of ‘the people’?” Felons, those convicted of domestic violence, and the mentally ill have all (historically) not fallen within the definition of “the people” and thus, have no Second Amendment Rights. 

This will be the Supreme Court’s first take on who “the people” are after Bruen was decided. In addressing whether a person subject to a domestic violence restraining order falls within the definition of “the people” in the Second Amendment, the Court’s decision, though likely narrow, may provide a landmark interpretation, potentially setting the tone for future considerations of who is included or excluded from the constitutional protections afforded by the Second Amendment.

Garland v. Cargill

Garland v. Cargill deals with whether a bump-stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires “automatically more than one shot … by a single function of the trigger.”

Congress first regulated the sale and possession of “machineguns” in the National Firearms Act of 1934. Since 1986, Congress has prohibited the transfer or possession of any new “machinegun.” According to the National Firearms Act, a “machinegun” is any weapon that can automatically shoot more than one shot without manual reloading by a single pull of the trigger. The definition of “machinegun” also encompasses “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.”

After the 2018 mass shooting in Las Vegas was carried out using bump stocks, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published an interpretive rule concluding that bump stocks are machine guns as defined in 26 U.S.C. § 5845(b).

Cargill purchased two bump stocks in April 2018, during the ATF rulemaking process, and after ATF adopted the final rule, Cargill surrendered his bump stocks to ATF and brought this action in the Western District of Texas challenging the rule on various grounds.

The district court agreed with the ATF’s view that the term “single function of the trigger” includes “a single pull of the trigger.” The Fifth Circuit Court of Appeals affirmed the district court’s ruling, but it was later reversed and remanded after rehearing en banc. 

Central to this case is what limits are placed on the ATF’s powers. When the ATF is granted the authority to interpret laws, enforce them, and essentially modify statutes within their administrative code to narrow down the trigger’s function to a specific action, it results in a federal agency possessing the combined powers of all three branches of government under one roof. This is not inherently an issue because federal agencies are allowed to write their own regulations, but those regulations cannot redefine congressional language in laws and statutes. 

The Court’s decision on what classifies as a “single function of the trigger” in Garland v. Cargill will carry ramifications that extend beyond just bump-stocks. The ruling may set precedent for other federal administrative agencies and establish boundaries for interpretative powers on a broader scale.

Oral arguments for Garland occurred on February 28, 2024.

National Rifle Association of America v. Vullo

The last case, National Rifle Association of America v. Vullo, is on its face, a First Amendment case, but it has Second Amendment implications. The key issue in this case is whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if it does business with a controversial speaker as a consequence of the government’s own hostility to the speaker’s viewpoint and a perceived “general backlash” against the speakers advocacy. 

Maria Vullo was the Superintendent of the New York State Department of Financial Services from 2016 to 2019. In her role, she led an agency of 1,400 employees and oversaw the regulation of New York’s financial services industry. It was in this position that Vullo spoke out against the gun industry and pro-gun organizations. After the 2018 school shooting in Parkland, Florida, Vullo made known her desire that the institutions she supervised distance themselves from pro-gun organizations and investigated several insurance companies working with the NRA. Vullo also warned banks and insurance companies that doing business with the NRA could lead to heightened “reputational risks.” Vullo’s warnings and investigations caused banks and insurance companies to dismantle their partnerships with the NRA as they feared losing their New York licenses if they continued business as usual. The NRA brought First Amendment claims against Vullo in her official and individual capacity.

A district court initially found merit in the NRAs claims, suggesting a potential violation of First Amendment rights. However, the Second Circuit Court of Appeals reversed this decision, asserting that Vullo’s actions constituted “government speech.”

The American Civil Liberties Union (ACLU) submitted a brief urging the Supreme Court to apply the precedent established in the 1963 case Bantam Books v. Sullivan. This decision asserted that informal and indirect efforts to suppress or penalize speech are as constitutionally objectionable as direct censorship. 

The First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

In 2023, certain financial institutions attempted to categorize credit card transactions and purchases related to the Second Amendment separately on merchant processing accounts, forming a connection between this First Amendment case and the Second Amendment. This attempt to code these transactions could be seen as not only a financial practice but also as a potential limitation on the freedom of expression and association, as it may impact individuals’ ability to freely engage in constitutionally protected activities. The Supreme Court’s ruling in this case holds broader implications for the balance between government regulation and the constitutional rights of advocacy groups. By clarifying the boundaries of regulatory power in the context of free speech and association, the Court’s decision will shape the landscape for similar cases in the future. 

The Supreme Court’s decision in National Rifle Association of America v. Vullo could have profound implications for the First Amendment, especially in the context of government regulators influencing financial institutions based on controversial speech. The ruling may not only impact the NRA, but could also set precedent for the balance between regulatory actions and the constitutional rights of advocacy groups.

Oral arguments were heard on March 18, 2024. 

Conclusion

The most important takeaway from these three cases will not be what the Court says, but how it got there. 

In June 2022, the Supreme Court, in the case New York State Rifle and Pistol Association v. Bruen, introduced a comprehensive approach for courts to analyze constitutional issues related to Second Amendment regulation. This approach is known as the “history and tradition test.”

Whether this test, or APA administrative procedures will be used remains to be seen. Additionally, what era of American history will dominate the analysis will be equally important-the Early Republic Era up to the 1830s, Post-Civil War Reconstruction in 1868 when the 14th Amendment was passed, the 1960s marked by the enactment of the Gun Control Act, or the 1990’s when the Brady Act was passed. The significance lies in the fact that the determination of the threshold for the “history and tradition test” will shape the constitutionality or unconstitutionality of gun regulation and control laws for decades into the future.

[1] For the audio recording of the oral argument, visit Oyez.org to listen to the proceedings.

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