U.S. v. Rahimi: Prohibiting persons with domestic violence restraining orders from possessing guns doesn’t violate Second Amendment
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
The federal statute which prohibits people subject to domestic violence restraining orders from possessing a firearm if they are a “credible threat” to the safety of their partner or child doesn’t violate the Second Amendment, the U.S. Supreme Court held June 21 in United States v. Rahimi.
Zackey Rahimi’s girlfriend obtained a domestic violence restraining order against him after he had shot a gun during an altercation.
The order found Rahimi posed a “credible threat” to the “physical safety” of the girlfriend and their child. The order prohibited Rahimi from contacting the girlfriend for two years, except to discuss matters involving their child.
Rahimi violated the order by contacting the girlfriend.
He also threatened a different woman with a gun, and was a suspect in at least five additional shootings.
Police obtained a warrant to search Rahimi’s residence and found a gun and ammunition.
Rahimi was charged with possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. Sec. 922(g)(8). That statute prohibits people subject to a restraining order from possessing a gun if the order found they were a “credible threat to the physical safety” of their intimate partner or partner’s child.
Rahimi moved to dismiss the charge on grounds the statute violated the Second Amendment on its face.
The District Court denied the motion.
But the Fifth Circuit, applying the Supreme Court’s decision in Bruen, from 2022, ruled the statute violated the Second Amendment because it did not fit within the nation’s tradition of firearms regulation.
Holding
The Supreme Court reversed, in an 8-1 opinion by Chief Justice Roberts, with most justices writing separate concurrences.
“In Bruen, we directed courts to examine our ‘historical tradition of firearm regulation’ to help delineate the contours” of the right to bear arms, the Court said.
“We explained that if a challenged regulation fits with that tradition, it is lawful under the Second Amendment”, the Court said. “We also clarified that when the Government regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it bears the burden to justify its regulation.”
“Nevertheless, some courts have misunderstood the methodology” of Bruen, the Court said. Second Amendment law is not “trapped in amber.”
The Fifth Circuit’s error was to require a “historical twin” rather than a “historical analogue” in determining whether a regulation is valid, the Court said.
“[T]he Second Amendment permits more than just those regulations that could be found in 1791”, the Court said.
“[T]he appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition”, the Court said. “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”
“Why and how the regulation burdens the right are central to his inquiry”, the Court said. “For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons” are permissible.
At the time of the founding, various State surety laws allowed magistrates to require that people who were suspected of future misbehavior with guns to post a bond, the Court said. If a person failed to post the bond, they would be jailed; if they posted the bond, and broke the peace, they would forfeit the bond.
The surety laws show a historical tradition that when a person poses a threat of physical violence, they can be disarmed, the Court said.
“Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be”, the Court said. “Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly withing the tradition”.
“Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi”, the Court said. It only applied during the two years he was subject to the restraining order.
Concurring Opinions
Justice Sotomayor, in a concurring opinion joined by Justice Kagan, wrote that although she believes Bruen was “wrongly decided,” she believes the Court’s “interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day”.
The opinion “clarifies an important methodological point that bears repeating”, she said. “Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should ‘conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition’”.
Justice Gorsuch concurred, but noted there are many questions not resolved by the Court’s opinion. “So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a ‘credible threat’ to another”.
“We do not determine whether the government may disarm an individual permanently”, Gorsuch said.
“We do not determine whether Sec. 922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense”, Gorsuch said. He noted the surety laws cited in the opinion allowed persons to obtain guns for self-defense.
“Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, ‘not responsible’”, he said.
Justice Kavanaugh wrote separately to state his belief that courts should not determine individual rights “by looking to policy.”
Proponents of a “policy-based approach” to constitutional interpretation do so using a “balancing approach variously known” as “means-end scrutiny”, “heightened scrutiny”, “rational basis”, or “strict or intermediate scrutiny”, he said.
“Whatever the label of the day, that balancing approach is policy by another name”, he said. “It requires judges to weigh the benefits against the burdens of a law and to uphold the law as constitutional if, in the judge’s view, the law is sufficiently reasonable or important.”
That balancing approach “departs from what Framers” intended, and conflicts with judges’ roles as “umpires”, Kavanaugh said.
“The historical approach is not perfect”, he said. “But the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution writing, but whether it is the best means available in an imperfect world.”
Justice Barrett concurred, but emphasized that historical regulations “reveal a principle, not a mold.”
“To be sure, a court must be careful not to read a principle at such a high level of generality that it waters down the right”, she said. “Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.”
Justice Jackson wrote separately to emphasize that Bruen’s methodology has proven difficult or unworkable for judges to apply.
The Court’s opinion “is a tacit admission that lower courts are struggling”, Jackson said. “In my view, the blame may lie with us, not with them.”
Lower court judges report “there is little method to Bruen’s madness”.
“No one seems to question that [h]istory has a role to play in Second Amendment analysis”, Jackson said. “But, per Bruen, courts evaluating a Second Amendment challenge must consider history to the exclusion of all else.”
“This means legislators must locate and produce – and courts must sift through – troves of centuries-old documentation looking for supportive historical evidence”, she said.
Jackson said the Court should be “mindful of how its legal standards are actually playing out in real life.”
Dissent
Justice Thomas dissented.
“Not a single historical regulation justifies the statute at issue”, he said.
He noted that surety laws “did not alter an individual’s right to keep and bear arms.” The only penalty a person or his surety had for breach of peace was to pay money.
“To disarm him, the Government would have to take some other action such as imprisoning him for a crime,” Thomas said. “By contrast, Sec. 922(g) strips an individual of his Second Amendment right.”
Thomas noted that the prohibition on possessing a firearm is effectively permanent, since once a person is convicted of violating Sec. 922(g), they are a felon who can no longer possess a gun for life.
Thomas noted that no member of the Court adopted the Government’s argument that it can disarm anyone who is not “responsible” or “law-abiding.”
“The plain text of the Second Amendment quashes this argument”, Thomas said. “The Amendment recognizes ‘the right of the people to keep and bear Arms.’”
“In reality, the ‘law-abiding, dangerous citizen’ test is the Government’s own creation designed to justify every one of its existing regulations”, Thomas said. “It has no doctrinal or constitutional mooring.”
“States have a ready mechanism for disarming anyone who uses a firearm to threaten violence: criminal prosecution”, Thomas said.
The Government should not be permitted to strip a person of their Second Amendment rights for being subject to a protective order, “even if he has never been accused or convicted of a crime,” Thomas concluded.