Old Judges, Older Laws

By John R. Byrne

Justice Ruth Bader Ginsburg upset a lot of Democrats when she declined to retire during President Obama's presidency. She ultimately died in office in 2020, allowing President Trump to nominate her successor, Justice Amy Coney Barrett.

Now, Republicans have a bone to pick with Justices Clarence Thomas and Samuel Alito. Both are getting up there in age (78 and 76, respectively), and had they retired at the beginning of President Trump's second term, he almost certainly could have appointed two younger conservatives to the Court. But with Democrats winning control of the Senate in last night's elections, that's going to be considerably more difficult.

I don't know what it is about judges, but they sure seem to have a difficult time retiring. I guess the job is really that good. 

In more local news, Judge Ruiz issued what appears to be the first ruling of its kind in the Eleventh Circuit addressing a Second Amendment challenge to 18 U.S.C. § 922(g)(8)(C)(ii).

Here's the background. Federal law prohibits individuals subject to certain domestic violence restraining orders from possessing firearms. In 2024, the Supreme Court upheld that prohibition in United States v. Rahimi, but only where the restraining order included an express judicial finding that the individual posed a credible threat of violence. The Court left open whether the prohibition was constitutional when the order merely prohibited violent conduct, without an express finding of dangerousness.

Enter United States v. Schiller. A Broward County judge had entered a domestic violence injunction against Schiller but expressly declined to make any findings that he had committed or threatened violence. When federal agents later discovered a firearm in Schiller's home, he was indicted and challenged the law's constitutionality.

Judge Ruiz rejected his challenge. Relying in part on 19th-century "surety laws," which required individuals posing threats of violence to post bonds to keep the peace, Judge Ruiz concluded that Florida's injunction process provided sufficient safeguards. Even without an express finding of dangerousness, the issuance of the injunction necessarily implied that the state judge had determined Schiller posed a credible threat. So, the prosecution could proceed under subsection (C)(ii). 

You can read the opinion here.