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Judge Ho Apparently Didn't Bother To Read The Cases He Cited In Domestic Abuser Gun Opinion

Context matters!

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Judge James Ho Jim Ho

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In United States v. Rahimi, the Fifth Circuit ruled that a guy who voluntarily agreed to a court order — entered to resolve a domestic violence claim — barring him from owning guns cannot be criminally convicted for violating a court order prohibiting him from owning guns because of the Second Amendment. In doing so, the court reasoned — as we’ve seen before — that since domestic violence existed in the 18th century and the Framers didn’t punish abusers for having guns then, it can never pass a law to do it now.

No, seriously, that’s the logic. See Rahimi at 11.

But there’s a lot being written about the majority opinion. Let’s focus on the concurrence because that’s where Judge James Ho shines. And by “shines,” we mean turns in shoddy research that would get a first-year associate fired.

As a recap, here are the facts of the case:

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.

That’s not a fact-pattern, that’s 15 minutes in GTA Online.

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The spree resulted in law enforcement searching his home and finding firearms. However, Rahimi had voluntarily agreed to a court order barring him from possessing firearms to settle a domestic violence claim lodged by his ex-girlfriend. Having been found with guns despite a court order (again, an order that he agreed to) prohibiting him from having guns, a grand jury indicted Rahimi under 18 U.S.C. § 922(g)(8). He would then plead guilty because he was, you know, guilty. Then he realized that he lived within the Fifth Circuit and launched a broadside against the constitutionality of his conviction, which the court approved.

Now to the concurrence.

Judge James Ho, thirsty as a lost wanderer in the Mojave for any opportunity to ingratiate himself to any future Republican administration that might elevate him to the Supreme Court, writes separately:

The right to keep and bear arms has long been recognized as a fundamental civil right. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the “civil-rights Amendments”); Konigsberg v. State Bar of Cal., 366 U.S. 36, 49–50 n.10 (1961).

It’s always difficult for conservative judges to find support for their “deeply historical” analysis of the Second Amendment since it doesn’t exist. Even the majority opinion explicitly notes that, “In Emerson, we held that the Second Amendment guarantees an individual right to keep and bear arms—the first circuit expressly to do so.” Since Emerson was decided in 2001, this is just letting pride get in the way of Originalist gaslighting. Come on, Fifth Circuit! You can’t go around admitting that the individual right to gun possession is barely old enough to drink.

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So kudos to Judge Ho for trying to build a historical case! Unfortunately, neither of these cited opinions have much to do with the Second Amendment.

And they both… prove the opposite of what he’s arguing.

Eisentrager is about federal jurisdiction over Nazi war criminals. The Second Amendment does come up, but in a very particular way. Eisentrager concludes that war criminals held in Germany, who have never been inside the US, do not have access to US constitutional rights. By way of analogy, Justice Jackson explains that extending rights in this way would justify giving guerrilla fighters unchecked access to guns.

If the Fifth Amendment confers it rights on all the world except Americans engaged in defending it, the same must be true of the companion civil rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that, during military occupation, irreconcilable enemy elements, guerrilla fighters, and “were-wolves” could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against “unreasonable” searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

The Court’s point here is to highlight the absurdity of extending these rights to foreign combatants to prevent the military from blanket disarming enemy troops. It’s a stretch to extend this to support the claim that the Court thought that the Second Amendment doesn’t countenance regulations that would bar criminals from having guns within the United States. Indeed, several of the justices on this opinion were on the Miller opinion that directly laid out that this was not the meaning of the Second Amendment.

But as bad as that citation may be, Konigsberg is somehow worse.

Konigsberg is about swearing that you aren’t a communist to get admitted to the bar (maybe that’s what we need to deal with all these woke Biglaw lawyers!). But the funny part of this citation is that the specific footnote Ho points to… reaches the opposite conclusion. While the case is about the First Amendment, Justice Harlan ends this footnote with the sentence, “In this connection, also compare the equally unqualified command of the Second Amendment: ‘the right of the people to keep and bear arms shall not be infringed.'” This ignores the whole “well regulated” part, which is dictionary definition of a qualification, but set that aside.

Judge Ho appears to have seen “unqualified command of the Second Amendment” and called it a day. EXCEPT that’s the antithesis of the whole footnote.

The sentence attached to the footnote is: “At the outset, we reject the view that freedom of speech and association, as protected by the First and Fourteenth Amendments, are ‘absolutes,’ not only in the undoubted sense that, where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.” Footnote 10 in full:

That view, which, of course, cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. . . .” But as Mr. Justice Holmes once said:

“[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.”

Gompers v. United States, 233 U. S. 604, 233 U. S. 610. In this connection, also compare the equally unqualified command of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” And see United States v. Miller, 307 U. S. 174.

Justice Harlan contends here that just because the First Amendment reads as “unqualified,” it doesn’t mean that the law treats it as such. He then throws in the Second Amendment specifically for the purpose of underscoring this point. It’s included to convey: “See, this is written to be unqualified too and literally no one is stupid enough to think the Constitution intends to create an unfettered individual right to guns.”

How did something so sloppy end up in an appellate opinion? Obviously, there’s a dearth of historical precedent for the proposition that the Second Amendment affords an individual right to gun ownership, but armed with AI-facilitated caselaw search tools all he could come up with for pre-2001 support is an opinion from 1961 that concludes the opposite way?!?!

This guy needs to stop boycotting elite law school clerks, because he needs some serious research help.

Earlier: Court Rules That Since The Framers Didn’t Care Much About Domestic Abuse, Abusers Get To Have All The Guns They Want!
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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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