Crime and Punishment in the 21st Century

Show me the man and I will find you a crime.

To no one’s surprise, the Supreme Court in U.S. v. Rahimi has upheld a law forbidding people under domestic-violence restraining orders from obtaining firearms.

Legally this was a bit iffy:  Under the rule announced in the Bruen case from two years ago, only firearms restrictions that were part of American history and tradition could be upheld under the Second Amendment.  Domestic violence restraining orders, and laws banning firearms ownership under them, are not part of that history and tradition, since they are quite new.

The Court got around this issue – which had led the U.S. Court of Appeals for the Fifth Circuit to find the law unconstitutional – by analogizing to old laws that required individuals who had threatened others to post a “surety bond” before being allowed to carry arms, and by looking at laws that in general forbade going armed in public in a fashion calculated to terrify the citizenry.

Never mind that those laws, unlike the law in question in Rahimi, didn’t ban possessing guns, just carrying them outside the home.  This was good enough for a majority of the Court to uphold the domestic violence law, thus avoiding the political explosion that would have come from overturning it.  When an individual poses a “clear threat of physical violence to another,” the Court held, the Second Amendment allows that individual’s right to arms to be infringed.

But the Court’s violence rationale introduces new problems.  A related federal statute bans everyone convicted of a felony, whether violent or nonviolent, from possessing a firearm.  But look at Hunter Biden and Donald Trump, both recently convicted of nonviolent felonies that were, essentially, paperwork violations.  

Neither did anything violent.  Hunter Biden lied on a form when he bought a pistol.  Donald Trump, er, well, did something that even the prosecution and Democratic pundits have had trouble making clear, but whatever it was, it involved paperwork and not violence.

A case currently on the Supreme Court’s docket, U.S. v. Range, raises the question of whether a nonviolent offender can be stripped of his or her right to arms.  The U.S. Court of Appeals for the Third Circuit said no.  (Range had a 1995 conviction for misstating his income on a food stamp application, not exactly Dillinger stuff.)  The Third Circuit said that banning firearms possession by nonviolent offenders was a recent twist, with history and tradition supporting only bans on gun ownership by violent felons.  

The Supreme Court may resolve that, or, more likely, it will kick Range back to the Third Circuit for reconsideration in light of Rahimi, the judicial version of a punt.

But it will have to address that question someday.  And lying behind that is an even bigger question:  Is the proliferation of felonies in American law – often for highly technical “regulatory crimes” that no ordinary person would be aware of – constitutional?

Police charged with violating the law are given “qualified immunity,” meaning that they are shielded from liability unless the law is clearly established.  The justification is that laws and constitutional principles governing police behavior are too complex to expect them to understand everything.

But ordinary citizens are “presumed” to know the law in its entirety, even though nobody thinks they really do.  Pick up an eagle feather lying on the ground in a national park?  Drive your snowmobile across a wilderness barrier?  You’re a felon.

There are tens of thousands of federal regulatory crimes – nobody is sure how many – based not even on laws passed by congress but on regulations adopted by federal agencies under vague delegations by Congress.  To demand people understand laws they aren’t aware of and don’t understand – quite possibly laws that nobody understands – is to demand the impossible, which is surely a violation of due process.

In addition, placing lifetime disabilities on people for nonviolent violations of regulatory provisions seems like cruel and unusual punishment.  Lose your right to vote and own a gun for a lifetime just because you overstepped some bureaucratic diktat?  What would the Framers have said about that?

Worse yet it empowers prosecutors to target people they don’t like.  Columbia Law Professor Tim Wu recounts a game they played in the U.S. Attorney’s office for the Southern District of New York:  Pick a famous person – say, Mother Teresa or John Lennon – and explain how you’d get them.  There was always a federal crime that would support an indictment.  Injuring a mailbag?  False pretenses on the high seas?  Mail fraud?  Something could always be found.

Our criminal law is due for some serious pruning.  This is a good opportunity to start.