Opinion
It has long been said that “hard cases make bad law,” and nowhere could this be truer for the Second Amendment than in U.S. v. Rahimi.
The issue at hand is the constitutionality of federal law 18 U.S.C. Section 922(g)(8), which disarms those Americans who have a domestic violence restraining order entered against them, even when they have never been found to be physically dangerous.
Attorney General Merrick Garland rushed to bring the Rahimi case to the U.S. Supreme Court, and that’s because the facts in that case could not be more unsavory. As alleged in court filings, Zackey Rahimi had a restraining order entered against him for beating up his girlfriend. He was subsequently involved in several shootings. Because the allegations in the case are so odious, the government is asking the Supreme Court to ignore the rule of law, that is, the text-and-history methodology made explicit by last year’s Bruen decision, and to reverse the Fifth Circuit Court of Appeals, which found 922(g)(8) to be unconstitutional.
After the victory in Bruen, a decision in Rahimi that rewrites or cuts back Bruen’s originalist methodology could return Second Amendment jurisprudence to the not-so-long-ago days of interest balancing, which was rightly rejected by the Court.
Should Second Amendment advocates wave the white flag and declare an early defeat in Rahimi? Hardly.
There is a procedural avenue that virtually no one is talking about, which is to render the case moot. Strategic mootness is a tool long familiar to the Left and one that pro-Second Amendment advocates should consider employing in Rahimi. If hard cases make bad law, then it is better to have no case at all.
This is where the legal doctrine of “mootness” comes into play. Under Article III of the U.S. Constitution, a federal court, including the Supreme Court, may not hear a case unless there is an actual dispute—known as a “case or controversy.” If a case becomes moot, meaning that any existing dispute between the parties ceases to exist, then there is no longer a “case or controversy,” which in almost all situations results in the lawsuit being dismissed on “mootness” grounds.
In the rarified world of Supreme Court litigation, strategic mootness is not an unprecedented strategy. It has been used by the Left on multiple occasions to postpone what would have been major losses for them. One example arose in 1997 in the affirmative action case Piscataway v. Taxman. There, a school district sought to preserve the job of a black teacher and, as a result, laid off a white teacher. After years of litigation, the Supreme Court finally agreed to hear the case. In fear of the Supreme Court gutting affirmative action and racial quotas, civil rights groups intervened and managed to settle the case out-of-court with a large payment to the white teacher.
Upon the settlement payment, the white teacher dismissed her case, thereby eliminating the opportunity for the Court to declare reverse-race discrimination to be illegal. By mooting the case, the NAACP preserved racial preferences for another twenty-five years.
A more recent example in the Second Amendment space is Bruen’s predecessor, NYSRPA v. City of New York.
After the elevation of Justice Brett Kavanaugh, the Supreme Court granted certiorari in that case in 2019. But New York City (and all anti-gunners) feared that the Court might issue a strong, pro-Second Amendment decision. So, New York City revised the law being challenged before the Supreme Court could decide the case. In doing so, the Left prevented the Court from issuing a decision on the Second Amendment that likely would have reaffirmed and expanded the protection of our right to keep and bear arms.
It’s time for the Second Amendment community to take a page from the Left’s playbook.
The best way to moot the Rahimi case would be to reach a plea agreement with Rahimi, and the one person in America who can take the lead and help preserve the Second Amendment (while punishing Zackey Ramini) is Phil Sorrells, the Tarrant County (Texas) Criminal District Attorney.
Mr. Sorrells ran as a strong conservative, and the proper role of a conservative in this thorny situation is to strike a balance between the twin goals of justice and the preservation of rights. While Mr. Rahimi seems to be deserving of significant jail time, allowing his Supreme Court case to proceed could be dangerous to the right to bear arms.
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Now, what would a plea agreement in Rahimi look like? There are multiple ways this might work. But the essence of a plea deal would be:
First, Mr. Rahimi would waive any and all defenses to his conviction under 18 U.S.C. 922(g)(8) and agree to serve his full federal prison sentence of approximately six years. As part of the waiver of his federal defenses, which would include waiving his Second Amendment defense pending before the Supreme Court, Rahimi would file a motion to dismiss his defense to the Supreme Court and ask the Court to order his successful appeal in the Fifth Circuit to be vacated and his federal conviction under Section 922(g)(8) to be reinstated.
Second, in exchange for agreeing to serve out his full federal prison sentence, Mr. Rahimi would receive a lesser sentence for the Texas state crimes that he is alleged to have committed. Thus, for example, if the current pending state charges would result in a potential 15 years in a Texas state prison, then perhaps the District Attorney would agree to recommend a 5-year sentence, which Mr. Rahimi could begin to serve after the completion of his federal prison sentence or perhaps the state sentence would run concurrently with his federal sentence.
A plea agreement like this could reasonably satisfy the demands of justice while also serving the fundamental interest of protecting (and preserving) our Second Amendment rights. Any such plea agreement might be attractive to Mr. Rahimi, who faces a very real risk that the Supreme Court could rule against him (thus reinstating his federal conviction), which in turn could result in him having to serve out his entire federal sentence AND also a maximum sentence in a Texas state prison.
Of course, this is a conceptual solution, and the feasibility and specifics would have to be worked out by the lawyers, Mr. Rahimi himself, and others concerned.
But by rendering this case moot by reaching a plea agreement, District Attorney Sorrells would be winning for justice on two fronts. Mr. Rahimi would serve lengthy prison sentences, first in federal prison and probably later in a Texas state prison. So, Mr. Rahimi would be punished appropriately for any crimes he may have committed. And, of course, Mr. Sorrells would become an instant hero throughout the United States for helping to preserve the Second Amendment by safeguarding the Bruen decision.
It is rare for an individual to be placed into a situation of being a true Second Amendment superhero. District Attorney Sorrells, this is a singular, shining opportunity for you. District Attorney Sorrels, seize the moment!
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith hosts the Four Boxes Diner Second Amendment channel on Youtube; is a member of the U.S. Supreme Court Bar; and his Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.
His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.
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