Lawfare Archive: Amanda Tyler on Rahimi and Taking Guns Away From Loyalists

Summary

The Lawfare Podcast: Lawfare Archive Episode Summary Episode: Amanda Tyler on Rahimi and Taking Guns Away From Loyalists
Release Date: August 2, 2025

---

Introduction

In this archival episode of The Lawfare Podcast, Mary Ford, an intern at Lawfare, sets the stage by referencing a tragic event that underscores the episode's relevance. On a Monday evening, a gunman named Shane Devin Rahimi committed the deadliest shooting in Midtown Manhattan in 25 years, reigniting urgent debates about gun control laws in the United States.

---

United States v. Rahimi: Case Overview

Time Stamp: [01:50]

Mary Ford introduces the focal case of the episode: United States v. Rahimi. The case centers on whether a federal law, specifically Section 922 of the criminal code, which prohibits individuals under state-imposed domestic violence protective orders from possessing firearms, is constitutional under the Second Amendment.

Key Points:

• Incident Details: Rahimi, possessing firearms during a period of a protective order, committed multiple violent acts before taking his own life.
• Legal Challenge: Rahimi's defense raised a Second Amendment claim, challenging the validity of Section 922.
• Supreme Court Involvement: Following a reversal by the Fifth Circuit Court of Appeals, the case has escalated to the Supreme Court, poised to set a significant precedent.

---

Second Amendment Precedents and Legal Framework

Time Stamp: [07:57]

Amanda Tyler, the Shannon Cecil Turner Professor of Law at UC Berkeley School of Law, delves into the constitutional landscape shaping the Rahimi case. She outlines the pivotal Supreme Court decisions that frame the current legal debate:

1. District of Columbia v. Heller (2008): Affirmed an individual's right to possess firearms for self-defense within the home.
2. McDonald v. Chicago (2010): Extended the Second Amendment protections to the states.
3. New York State Rifle & Pistol Association v. Bruen (2022): Established that evaluating firearm regulations requires identifying "representative historical analogs" from the founding era.

---

Historical Analogs: Disarming Loyalists

Time Stamp: [14:13] - [17:46]

Tyler argues that historical laws disarming Loyalists during the American Revolutionary period serve as crucial analogs for evaluating the constitutionality of modern gun regulations like Section 922. She references specific statutes from Massachusetts and Pennsylvania that mandated the disarmament of individuals supporting the British cause:

• Massachusetts Law: Disarmed those refusing to declare allegiance to the new United Colonies, seizing all arms and ammunition.
• Pennsylvania Law (1779): Empowered militia officers to confiscate weapons from those suspected of disaffection, highlighting the comprehensive nature of these disarmament measures.

Notable Quote:
"These sweeping laws stripped loyalists of every conceivable armament they could hold, and did so through rather perfunctory processes in some cases." – Amanda Tyler ([17:46])

---

Political Community and Legal Rights

Time Stamp: [27:27] - [34:22]

A critical aspect of Tyler's analysis is the status of Loyalists as members of the political community. She counters arguments suggesting Loyalists were outside the protections of domestic law, emphasizing that:

• Allegiance and Protection: Loyalists owed allegiance to the United Colonies and were entitled to the protections of domestic law, including rights under Habeas Corpus.
• Legal Distinctions: While British soldiers held the status of prisoners of war, American Loyalists were treated as traitors within the political community, necessitating suspensions of Habeas rights for their detention.

Notable Quote:
"The fact that we do have all of these laws that are stripping them of these rights, these really important fundamental rights, we know they had rights, and they were within the political community, and they could claim the protection of domestic law." – Amanda Tyler ([34:05])

---

Supreme Court's Analytical Approach and Predictions

Time Stamp: [35:03] - [43:19]

Tyler explores how the Supreme Court's focus on the founding era, particularly the year 1791, impacts the Rahimi case. She posits that:

• Limited Historical Scope: The Court's emphasis on the period surrounding the Second Amendment's ratification may render Loyalist disarmament laws highly relevant as historical analogs.
• Legal Interpretation: If the Court adheres strictly to originalist interpretations, Loyalist laws offer a robust foundation for upholding modern regulations like Section 922.
• Potential Outcome: Tyler cautiously anticipates that the Court may uphold Section 922, supported by these historical precedents, while expressing hope that the Court accurately interprets the Loyalists' status within the political community.

Notable Quote:
"If we are looking exclusively at 1791 and the period leading up to 1791... these laws disarming loyalists as support, as opposed to other laws... very strong support for government's position." – Amanda Tyler ([37:06])

---

Conclusion

The episode concludes with Tyler emphasizing the importance of understanding the historical context of Loyalist disarmament to inform contemporary legal debates on gun control. She underscores that these historical analogs not only support the government's position in Rahimi but also highlight the enduring relevance of foundational laws in shaping modern interpretations of the Second Amendment.

Final Quote:
"There's a real time ruling on this question from the Pennsylvania Supreme Court... their status shows these laws are relevant to the inquiry in Rahimi." – Amanda Tyler ([43:19])

---

Key Takeaways

• Historical Analogues: Laws disarming Loyalists during the Revolutionary era are pivotal in evaluating the constitutionality of current gun control measures.
• Political Community: Understanding the rights and statuses of historical groups within the political community is essential for drawing valid parallels.
• Supreme Court's Role: The upcoming Supreme Court decision in United States v. Rahimi is expected to have far-reaching implications for Second Amendment jurisprudence.

---

This comprehensive discussion by Amanda Tyler provides critical insights into how historical laws influence present-day legal interpretations, particularly concerning firearm regulations and constitutional rights.

Transcript

[Matt Gluck]

The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of [e-mail] lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.

[Hesi Jo]

Ever feel like you're carrying something heavy and don't know where to put it down? Or wonder what on earth you're supposed to do when you just can't seem to cope? I'm Hesi Jo, a licensed therapist with years of experience providing individual and family therapy, and I've teamed up with BetterHelp to create mind if We Talk, a podcast to demystify what therapy's really about. In each episode, you'll hear guests talk about struggles we all face, like living with grief or managing anger. Then we break it all down with a fellow mental health professional to give you actionable tips you can apply to your own life. Follow and listen to Mind if We Talk on Apple Podcasts, Spotify, Amazon Music, or wherever you get your podcasts. And don't forget, your happiness matters it's.

[Mary Ford]

That time of year again, Back to school season, and Instacart knows that the only thing harder than getting back into the swing of things is getting all the back to school supplies, snacks and essentials you need. So so here's your reminder to make your life a little easier this season. Shop favorites from Staples, Best Buy, and Costco, all delivered through Instacart, so that you can get some time back and do whatever it is that you need to get your life back on track. Instacart we're here.

[Hesi Jo]

I'm Mary ford, intern at Lawfare, with an episode for the Lawfare Archive for August 2, 2025. On Monday evening, a gunman entered the lobby of an office building on Park Avenue in midtown Manhattan and opened fire, killing four people and wounding a fifth before fatally shooting himself. The shooting was the city's deadliest in 25 years. The gunman, who has been identified as Shane Devin Tamara, obtained a firearm legally in his home state of Nevada, despite a documented history of mental health struggles, which included being involuntarily committed at least two separate times in the last three years. For today's Archive episode, I selected an episode from December 27, 2023, in which Mac Luck sat down with Amanda Tyler, the Shannon Cecil Turner professor of Law at the University of California, Berkeley School of Law, to discuss ongoing litigation in the case United States vs. Rahimi, including how founding era laws that strip loyalists of their guns relate to the case.

[Matt Gluck]

I'm Matt Gluck, Research Fellow at Lawfare and and this is The Lawfare Podcast. December 27, 2023 the Supreme Court last month heard oral arguments in United States v. Rahimi in which the Court will decide the constitutionality of a federal law that criminalizes the possession of firearms by individuals on whom state courts have imposed domestic violence protective orders. This case came to the court following its June 2022 ruling in New York State Rifle and Pistol association versus Bruin. In that case, the Court determined that whether a law violates the Second Amendment depends on whether there is a representative historical analog for the contemporary law. Amanda Tyler, the Shannon Cecil Turner professor of Law at the University of California, Berkeley School of Law, argued in a recent article in Lawfare that the many laws disarming loyalists that existed at the time of the Founding serve as a set of historical analogues which required by Bruin to demonstrate the constitutionality of the statute at issue in Rahimi, a claim which has been disputed by Rahimi's lawyers. I sat down with Tyler to discuss the Rahimi case, the nature of the Founding era laws that stripped loyalists of their firearms, whether loyalists were members of the American political community. Why that question matters for the Court's ruling in Rahimi and more. It's the LawFair podcast. December 27th Amanda Tyler on Rahimi and taking guns away from Loyalists to get us started, could you tell us who Rahimi is, what are the facts of the case and what is the law in question?

[Amanda Tyler]

Sure, and thanks for having me. There's a really big Second Amendment case in front of the Supreme Court right now, and what the court does in this case will transcend it. I want to make that point at the outset that it's not just this one law that's at issue, and I think a lot of laws and their constitutionality will turn on what the court does in the Rahimi case. But let's back up, as you suggest, and start with Rahimi itself. It's a case that involves the question whether a provision of Federal law, section 922 of the criminal code, is constitutional. Now, what does 922 do? It piggybacks on state court issued protective orders. Usually we're seeing these in the domestic violence context and if someone is issued a protective order against them by a state court and as part of that order they are deemed to be a danger to an intimate partner or they are specifically told they cannot hold a firearm Based on that, then the federal criminal law is triggered and it becomes a federal crime to possess a firearm. During the penance of the protective order, the underlying order, Rahimi committed a whole series of violent acts, many with guns, and posed a threat to an intimate partner who obtained a restraining order against him. And in violation of the terms of that order, he was found to possess firearms in his home. As a result, he was then prosecuted under the federal law 922. And as one of his defenses, unsurprisingly, I will say his public defender raised a Second Amendment defense. And I say unsurprisingly because, as you may know, the Court has been striking down a number of laws in recent decades on Second Amendment grounds. And I think any criminal defense lawyer with a client who's charged with a gun crime is going to raise a Second Amendment argument to try and get the law thrown out at the outset. So the case comes to the supreme court after the Fifth Circuit, the United States Court of Appeals for the Fifth Circuit, that is struck down 922 as violating the Second Amendment. And the government has now sought review in the Supreme Court and is trying to defend the constitutionality of the law on a host of different bases. And as I said at the outset, what the Court does here, I think will have ramifications way beyond Simply the question whether 922 stands at the end of all of this.

[Matt Gluck]

That's a very helpful overview. Thanks. Before we jump into your argument, I want to get on the table the tests the Supreme Court has established to evaluate whether gun regulations like the statute in Rahimi, comport with the Second Amendment. So when did the Court establish that test and what does it prescribe?

[Amanda Tyler]

Well, there are. There are three major Second Amendment precedents at issue. The first is Heller, and then McDonald. And those two really breathed new life, I think we can say, into the Second Amendment and made it now a viable defense for those charged with gun crimes and those who want the ability to have a firearm, for example, at home for self defense. And the latter is what was at issue in 2022 in a case called New York State Rifle and Pistol association versus Bruin. That's the most recent Second Amendment decision from the Court. And it's the one that really changes or purports, I should say, to frame the inquiry in a way and at a level of detail that the earlier Heller and MacDonald decisions had not done. Bruen, therefore, is the crucial benchmark for the Rahimi decision and undoubtedly will frame all that the Court does so Bruin was written by Justice Clarence Thomas. And right away then you can assume that it's going to have a strong originalist bent, which it did. And what he says there is that when we're determining whether a regulation in effect today that regulates firearms, that is violates the Second Amendment is going to turn on whether we can look back and find a what he calls representative historical analog that would show that the modern regulation likely would have been acceptable to the founding generation. Now, obviously that opens a huge can of worms. What is representative? What is an analog? Bruen tells us a little bit. What I think Rahimi is going to do is really get much more into the details of what this means. But to set it up, Bruen tells us that a representative historical analog doesn't have to be a historical twin, so it doesn't have to be presumably nearly identical to the law that we have today. The key inquiry, Thomas said, is whether modern and historical regulations impose a comparable burden on the right of armed self defense and whether that burden is comparably justified. So I think what he's saying is we need to look and see is the burden analogous in terms of what the law is doing, what its target is, what it's stripping somebody of, and then he separately says whether the burden is comparably justified. So I think separately, then you're also looking at what is the justification behind the historical analog and behind the modern law, and are those comparable? Are they analogous? So the Court does seem to be saying we don't want, you know, an absolute perfect twin. What we should be looking more generally at is what is the law framed like, what is it doing and what is the justification for it. But we'll see, that's the test that will be applied presumably in Rahimi. And I think we'll really find out how specific the the analog needs to be, because I assume it goes without saying, but I'll say it anyway. There were no domestic violence laws of any sort that would be even remotely analogous to 922 at the founding. So we need to look for analogs that are born out of similar justifications and sweep in a similar fashion. We're not going to find a domestic violence law disarming abusers.

[Matt Gluck]

Right? So, and we will get into some of those potential analogues. But before we do that, you write in your article that the Court's disposition of Rahimi will turn on two related questions. What are those questions likely to be?

[Amanda Tyler]

Well, those questions really follow from Bruin. I think the first question is going to be where do we look for those historical analogues? And given that the author of Bruen was Clarence Thomas, a very originalist judge, who will likely want to look at 1791 when the Second Amendment was ratified. And given that the Court hasn't turned over since 2022 when it decided Bruen, I think we're going to be looking at 1791, and there we're going to look to see what kind of firearms regulations existed during that period. And then the second inquiry will be whether any of the existing regulations is sufficiently analogous to 922 to support its constitutionality. Now, I want to make two additional points about this. The first is, you know, there are a lot of people who think we shouldn't be interpreting the Second Amendment solely based on what laws were in effect in 1791. And I think this is a case that highlights why that might be. It's a case that involves laws that are generally in place to protect women. Not universally and not exclusively, but overwhelmingly. The impetus for such laws, the protective order laws and their application, tend to protect women who, of course, had no rights in 1791. So looking for an analog, then that's going to be on all fours with 922 is just simply not going to happen. But even accepting the Bruin analysis, and then if we are looking there, the question that latter question is, are we going to find something that under the Bruin test, is comparable enough to be deemed an historical analog? And to answer that question, the second point I would add to this two pronged inquiry is that it's really going to turn on the level of abstraction that the Court applies. How specific, how analogous, how comparable do the historical examples need to be to the law at issue in Rahimi, one.

[Matt Gluck]

Of the categories of potential historical analogues that the government points to are these laws disarming loyalists at the time of the Founding, which is your focus of your piece in Lawfare. How do you suggest those laws should inform how the Court answers the two questions on which you say its analysis is likely to turn?

[Amanda Tyler]

Well, it's really interesting because the government does rely on those laws and says, look, there were a number of laws and there were quite a large number of laws that disarmed loyalists, those who were supportive of the British during the Revolutionary War. And so the government says those are laws that disarmed people believe to be dangerous. And the analogy follows that it's the same idea as here we're taking guns away from people who are deemed to be dangerous in this case have been held to be so through state court proceedings. The government then didn't really respond in turn when Rahimi's lawyer said, oh, those laws don't count, because loyalists were outside protection. And indeed, Rahimi's lawyer, I think it's fair to say, so concerned about these laws that he opened his oral argument by saying, those laws don't count, the laws disarming loyalists. And I think that's wrong. And I think it's wrong for two reasons. I think, first of all, loyalists were not individuals who had zero rights. They were not, quote, unquote, outside the political community, like Rahimi's lawyer says. And we can get into why that is. And then secondly, more in response, direct response, that is, to your question. These are laws from the founding period, from Those critical years, 1776, into and throughout the war, that targeted a group of individuals who were perceived to pose a threat to national security, or more generally, we would say, were perceived to be dangerous to the social order, and they lost any rights that they had to possess firearms because these sweeping laws stripped them of every conceivable armament they could hold, and did so through rather perfunctory processes in some cases. The analogy to today's law at issue in Rahimi is that you have a law that has singled out a group of individuals who are believed to be dangerous to the social order, and for that reason, they are being disarmed. So the question really in Rahimi with respect to these loyalist laws is, do they count? And I would argue very much so. And if so, is that analogy close enough? And there's certainly a strong argument under Bruin that they are, because the justification is the same. We're trying to take arms away from persons who are deemed dangerous to the social order. And the way by which it is happening, if anything, I think is probably under the modern example at issue in Rahimi is giving even more process than the process that was provided at the founding and is taking away sort of similar firearms.

[Matt Gluck]

Could you describe a couple of those representative laws that took guns away from loyalists that you say serve as precedent for the law at issue in Rahimi?

[Amanda Tyler]

Sure. So, you know, a couple of laws that I mentioned in the piece I wrote for Lawfare are out of Massachusetts and out of Pennsylvania. The Massachusetts law, like many reserved, referred, I should say, to individuals who are not fully on board with the cause of independence. And it says, those who neglect or refuse to subscribe a printed or written declaration of their allegiance to the new united colonies shall be disarmed and have taken from them all such arms, ammunitions and warlike implements as by the strictest search can be found in their possession or belonging to them. So that's the Massachusetts law I'm quoting for there. And then later, you know, Pennsylvania passed a number of these laws. One of them that I quote in the piece from 1779 says that any lieutenant or sub lieutenant of the militia is empowered to disarm any person who, similarly to the Massachusetts law, has not taken an oath or affirmation of allegiance to the state and in that case more generally, the cause of independence. And under the Pennsylvania law, if the there has been information on oath given before any justice of the peace that such person is suspected to be disaffected to the independence of the state, then the lieutenant of the militia shall take from every such person any and here the law lists just a whole bucket load, if you will, of weapons that they can be taken out of any building, house or place belonging to such person person. So you know, importantly, I would highlight there this law specifically mentions including guns from their homes, including guns that are presumably in their homes for any number of reasons, including presumably self defense. So these laws again were sweeping. They went after persons who would not take the oath of allegiance, who were suspected to be disaffected to the American cause. They that is Independence and empowered officials to take from such persons all arms of any kind, including from their homes.

[Mary Ford]

The youth mental health crisis is growing and social media is a major driver. Kids are spending up to nine hours a day on screens, often unsupervised, and studies show a direct link to anxiety, depression, and even suicidal thoughts. That's where GAB comes in. GAB offers safe phones and watches with no Internet or social media, just the right tech at the right time. From smart watches for young kids to advanced parent managed phones for teens, GAB keeps kids connected safely. Visit gab.com getgab and use code getgab for a special offer. That's G A B B.com getgab Gab tech in steps independence for them, Peace of mind for parents Is your AI.

[Matt Gluck]

Built for everyone, or is it built to work with the tools your business relies on? IBM's AI agents are tailored to your business and can easily integrate with the tools you're already using so they can work across your business, not just some parts of it. Get started with AI [e-mail] the AIbuilder built for business IBM.

[Mary Ford]

I'm no tech genius, but I knew if I wanted my business to crush it I needed a website now. Thankfully, Bluehost made it easy. I customized, optimized and monetized everything exactly how I wanted with AI. In minutes, my site was up. I couldn't believe it. The search engine tools even helped me get more site visitors. Whatever your passion project is, you can set it up with Bluehost with their 30 day money back guarantee. What have you got to lose? Head to bluehost.com to start now.

[Matt Gluck]

So the court says in Bruin, you need historical analogs for laws today that prevent people from having guns. And we have these laws from the Founding that took guns away from individuals the government viewed as dangerous. But Rahimi says, not so fast. Those people weren't part of the American political community. So even if the government took their guns away, that doesn't affect me because I am part of the American political, political community. So what is Rahimi's basis for his argument that these laws shouldn't count as representative historical analogues?

[Amanda Tyler]

The idea, as I understand it, is this, this argument that the Loyalists fell outside of what we would call protection fell outside, that is the protection of domestic law. They didn't have any rights at all. And that's just not right. That's not correct. As a matter of history. That's what moved me to write the piece for lawfare, because I've written a lot about the Founding period in another context with respect to laws targeting Loyalists or people we might call disaffected to the American cause. It turns out, of course, that allegiance and loyalty were very complicated concepts at the Founding, just as much here as they were in England. But like in England, here we treated all persons. And here I'm going to read from a 1776, a June 1776 declaration of the Continental Congress. All persons abiding within the United Colonies and deriving protections from the laws of the same owe allegiance to said laws. In other words, In June of 1776, the Continental Congress said, if you live here, you owe allegiance, period. And what that meant was not just that you got the protection of domestic law, but that you owed an obligation of loyalty. And it followed that, as the Continental Congress declared in the same provision, if someone who lives here and is therefore deemed to owe allegiance levies war against any of the colonies within the same, or adheres to the King of Great Britain or any other enemies of the colonies, if they give them any aid or comfort, etcetera, they are guilty of treason. And treason had a really specific meaning at the Founding. It meant that if you fell within protection and you could claim the protection of domestic law, and at the same time, you owed allegiance. If you violated that allegiance by helping the enemy, you were subject to the laws of treason, the strictest laws, and you could lose your head. As we know from the Founding, that's typically how treason was punished. So what happens during the founding period is that the Continental Congress declares all of these things and then says to the states, you need to pass treason laws to deal with Loyalists, specifically to deal with those who are, quote, disaffected to the American cause. And what happens is a wave of states then pass treason laws, and they target, in particular those who help the British, those who are passing information to the British, those who are fighting with the British but live here, those who are supporting the British in any number of ways, engaging in sabotage, housing, spies, expensive, etc. Trading with the British. All of these things were deemed to be treason under these laws that were adopted by all the states. I cite the North Carolina law in the piece from 1777, which says, Everybody now inhabiting or residing within the limits of the state of North Carolina, or who shall voluntarily come into the same, prisoners of war excepted. And that had a very specific meaning. That was referring to the British redcoats who would be taken in arms and treated as soldiers of an enemy country and a foreign country. They would be treated differently as prisoners of war under the international law of nations. But everyone else who inhabited or resided within the limits of North Carolina, they were subject to the law of treason. And if they did any of these things, if they supported the British in any way, then they could be punished as traitors. The. The other thing that I've written a lot about, and this again is why I felt compelled to engage with this part of Rahimi, is that if you look at a number of the states during the Revolutionary War, a number of them, I think it was six, enacted suspensions of habeas, and they did this specifically to target the disaffected, I.e. the loyalists, and to legalize their detention outside the criminal process. The point of all of this, the treason laws and the suspension laws, all of which were targeting the disaffected, the Loyalists, is that you wouldn't need any of these laws if these people were outside the political community. You wouldn't need a suspension of habeas rights for persons who could be treated as prisoners of war who were outside the political community. You have to enact a suspension to detain someone outside the criminal process if they're within the political community. And that was how the Founding generation conceived of those who were disaffected to the American cause.

[Matt Gluck]

That's fascinating. Could you describe in a bit more detail some of these treason laws and how the Founding era states drew this distinction between the Loyalists and the Redcoats and how that sheds light on who was part of. Part of the political community.

[Amanda Tyler]

Right. So I think a good way to draw out that distinction is to. To draw a contrast between the British and the Americans. So the British perceived the Americans as rebels. They were deemed to owe allegiance. They were not viewed as an independent country. And so when American soldiers were taken prisoner, and particularly when they were taken prisoner and held on British soil, on English soil, where the English Habeas Corpus act applied and where Lord Mansfield had said, it applies to Americans who are on English soil because they still owe allegiance, they are not independent. That's how American soldiers were treated. They were treated as rebels and they had rights under the English Habeas Corpus act, and in particular, the right to force their tribe trial, even as suspected traitors. By its terms, the English Habeas Corpus act applied to traitors and said, if you're not tried within two terms, you can no longer be held, even in military custody, if you have the rights. So Lord Mansfield had said, that's right, it applies to Americans. And for that reason, the British passed a suspension of habeas corpus to enable, by its terms, the detention of American rebels on English soil where the Habeas Corpus act applied. Otherwise they'd have to be tried or released. Now, in introducing that act, Lord north said, we need this law so that we can treat the American rebels, quote, like other prisoners of war. So the idea is, the framework is you have those within protection who owe allegiance, rebels, traitors, whatever you want to call them. Disaffected is another term. They have rights and they can't be held without criminal charges. In the absence of a suspension, then you have prisoners of war. And during the Revolutionary War, the British treated the French who were captured as prisoners of war because they were enemies in the service of a foreign enemy, a foreign independent country. The Americans, in the British view, did not fall into that category. Now, switch over to here. The Americans viewed soldiers fighting formally as redcoats for the British army, as prisoners of war, because they were soldiers in the service of a foreign enemy, unlike those who lived here in the colonies and were from 1776 on, declared to owe allegiance to the united colonies, to the upstart United States, they were within protection. They were not foreign soldiers like the Red Coats and Therefore, they couldn't be treated as prisoners of war, and they were distinct from prisoners of war.

[Matt Gluck]

So why do these declarations of treason and suspensions of habeas represent the sentiment that these people were part of the political community rather than their exclusion from it?

[Amanda Tyler]

Well, it all turns on that historical understanding that we derive from English and then British law, of drawing a distinction between those who owe allegiance and can claim the protection of domestic law and those who by definition fall outside of the domestic law framework and should take their protection from the law of nations, from international law, and can be treated under international law as prisoners of war in the declared state of war. That is to say, if the disaffected. If those who lived here who were passing intelligence to the British, to take one example, if they could be treated as prisoners of war, then they could just be rounded up and detained for the duration of the war without charges. There's no need to have a suspension of the rights associated with the English Habeas Corpus act, which all the new states had adopted either legislatively or through common law decisions or constitutionally, as in the case of Massachusetts and Georgia, for example. Just as an aside to give an example, Georgia's 1777 constitution has as its Habeas clause a provision that says, the provisions of the English Habeas Corpus act are hereby adopted. And then, you know, in its first circulation, they appended a copy of the English Habeas Corpus act of 1679 to make very clear what the terms were that they were embracing and constitutionalizing. So it's that act and its promise of a timely trial, even to traitors, that is getting constitutionalized and adopted in all the early states, and that then has to be suspended so that there isn't an obligation to try those Loyalists who are supporting the British, passing them intelligence, trading with them, et cetera. Without suspensions, those individuals can't just be held during the war. They can force their trial under the Habeas Corpus act and the rights associated with it. That's why you need the suspensions. That's why they tell us that these are individuals who fell within protection. A more simplistic way of putting it would be to borrow from Thomas Paine, who wrote about this line of distinction, as he calls it in his famous pamphlet Common Sense. He said, there a line of distinction should be drawn between English soldiers taken in battle and American inhabitants taken in arms. The first are prisoners, but the latter are traitors. The one forfeits his liberty. In other words, he can be detained. The other is Head, that is to say, traitors can be prosecuted and punished and they can force their trial, is the point, I would add, under the Habeas Corpus act, unless there's a suspension of its terms.

[Matt Gluck]

So is it fair to say that if these people didn't have these criminal process rights to begin with, there would have been no need to strip them of those rights?

[Amanda Tyler]

Exactly. Exactly. And so the fact that we do have all of these laws that are stripping them of these rights, these really important fundamental rights, we know they had rights, and they were within the political community, and they could claim the protection of domestic law.

[Matt Gluck]

Okay, so this seems pretty straightforward. I think it seems straightforward because you've done a good job laying it out.

[Amanda Tyler]

But I hope that's true. Thank you.

[Matt Gluck]

It seems straightforward to me. So. So zooming out a bit, the government didn't address Rahimi's argument that loyalists were not part of the political community, either in its reply brief to Rahimi or in oral argument. Do you have any sense of why that was? Because it seems to me that if the court takes seriously Rahimi's assertion that loyalists were not part of the political community, that would undermine much of the historical support the government cites for this law.

[Amanda Tyler]

I think it's really hard to say why the government didn't engage with this. Maybe they believed correctly. I would add, that this really was a throwaway point. It was a point that couldn't and shouldn't stick that Rahimi's lawyer was making. I don't know. But I certainly think it's important to disabuse anyone confused by the point that Rahimi's lawyer is making, because it's simply not accurate. It's not an accurate description of the status of loyalists at the time of the founding. The government points to other laws as well, but a lot of the laws come into effect a little bit later in American history. And that's another reason why I think it's important to clear up any confusion about the status of loyalists so as to ensure that these laws are part of the conversation. That is to say, the laws disarming loyalists during the Revolutionary War are part of the conversation, because that's quite significant insofar as they do have an analogous target of disarming individuals who are believed, again, to be dangerous to the social order, just like I think it could Fairly be said, 922 is trying to do.

[Matt Gluck]

And we heard some of this during the oral arguments. Rahimi's lawyer mentioned that much of the government's support Many of the laws the government points to come from later periods, which the Court may be less enthusiastic about, using those laws that come from the Civil War period and later on as historical analogs, because the Court wants to look to 1791. So could you. Could you describe precisely why it's so important that we look to. We have these laws disarming loyalists as support, as opposed to other laws that came later on, for example, those that disarmed people with mental health disabilities?

[Amanda Tyler]

Yes. It's all going to depend on the way the Court frames the inquiry and whether it looks exclusively at 1791 and the period leading up to 1791, when the Second Amendment was ratified. Now, it's not obvious that that is how the inquiry should unfold. Not everyone subscribes to an originalist approach to constitutional interpretation, and it's not even clear that an originalist approach stops in 1791. You know, I'm reminded here of James Madison, who talked about how the meaning of the Constitution would be liquidated over time as it's applied. So I think that's a way of thinking about how the Constitution's meaning comes into being that is not necessarily fixated on one particular moment in time. But if the Court does effectively stop looking after 1791, these laws suddenly become enormously significant. And that's why the status of loyalists is really important, because to the extent that one could say they're outside protection, they're not part of the political community, then these laws would not necessarily be analogous to 922. But of course, as I've been trying to say, that's wrong. And I think given that that's wrong, there is a very strong analogy between the loyalist disarmament laws and the law at issue in Rahimi.

[Matt Gluck]

It seemed to me during oral arguments that the lawyer for Rahimi, Solicitor General Prelogar, and the Justices, or at least most of the Justices, were pretty focused on 1791 and the period surrounding it. Is that a fair read of the oral arguments?

[Amanda Tyler]

That was my impression as well, yes. That they were focusing on the founding period and not talking very much, if at all, about periods that followed.

[Matt Gluck]

Okay, so how do you think the Court will address what seems like based on your article and our conversation. Right. Rahimi's very flawed argument in its decision. Do you have a prediction or are you not in that business?

[Amanda Tyler]

Prediction is. Those are hard to make. I, you know, I teach a Supreme Court seminar, and we read a lot of the current cases, and the students always ask for my predictions and I'm always nervous about it because I worry that if I predict something, it'll. And then I'm wrong. Everybody will, you know, hang it over my head. But I do think given Bruin, given who is generally in the majority of constitutional cases on this Supreme Court, we're likely to see a decision that will overwhelmingly focus on the Founding period. My hope is that in so doing they will look at these Loyalist disarmament laws. Because there were so many of them. They are very sweeping. And to the extent that the Court meant what it said in Bruen, that we don't need an historical twin, we need something that is comparable in its justification and how it was carried out. If all of that is true, I think these laws are very strong support for government's the position. And further, I hope that the Court is not misled to misunderstand the status, the political status that is of Loyalists at the Founding. Because that would be really unfortunate. Really unfortunate. You know, one story that I haven't told is the story of the Quakers. And I'm not the only one to write about this. There's a lot of literature out there on the status of Quakers. During the Founding, the Continental Congress declared that certain Quakers were disaffected to the American cause. And in response to that, Pennsylvania rounded up a bunch of Quaker leaders. During the war, the Quakers, as people often did at the time when arrested without charges, petitioned for their freedom through habeas petitions. And the government in those cases argued to the Pennsylvania Supreme Court that the Quakers, because they failed to take oaths of allegiance, because they were supporting the British, they were disaffected to the American cause. The government of Pennsylvania argued the Quakers had renounced all the privileges of citizenship. The Pennsylvania Supreme Court said no. So there's actually a real time ruling on this question from the Pennsylvania Supreme Court. And in correspondence between that court's Chief Justice Thomas McKean and John Adams, he describes all of these proceedings. McKean does to Adams and he says, no, the Quakers enjoyed the full rights of citizenship and therefore they could not be held without charges. They could not be detained without charges. That is unlawful under the Habeas Corpus act in the absence of a suspension. And all of that is what triggers the Pennsylvania suspension. So more importantly than the details of the suspension is the fact that there's a Pennsylvania Supreme Court decision on point saying that the Quakers who had been deemed disaffected had been called Loyalists. They were full citizens with full rights. So it's just really important. Important that anyone analyzing this period and the laws. The disarmed loyalists understand their political status at the time, and I think the import of all of that is that their status shows these laws are relevant to the inquiry in Rahimi. The only question is whether they're close enough as an analogy to 922 to uphold it.

[Matt Gluck]

Amanda, we will have to leave it there. Thank you very much for joining us on the Lawfair podcast.

[Amanda Tyler]

Thanks so much for having me.

[Matt Gluck]

The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other lawfare podcasts by becoming a Lawfare material supporter through our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for other podcasts including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written [e-mail] the podcast was edited by Jen Perfect, Pati Howell and your audio engineer. This episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thanks for listening.

[Amanda Tyler]

If you work as a manufacturing facilities engineer, installing a new piece of equipment can be as complex as the machinery itself. From prep work to alignment and testing, it's your team's job to put it all together.

[Matt Gluck]

That's why it's good to have Granger on your side.

[Amanda Tyler]

With industrial grade products and next day delivery, Granger helps ensure you have everything you need close at hand through every step of the installation. Call 1-800-granger clickgranger.com or just stop by Granger for the ones who get it done.