On June 21, the Supreme Court decided a highly-anticipated Second Amendment case. In United States v. Rahimi, 602 U.S. __ (2024), the Court considered a facial challenge to 18 U.S.C. § 922(g)(8), which makes it a felony for people subject to certain domestic violence protective orders to possess firearms. Rahimi was the Court’s first opportunity to apply the revolutionary history-focused approach to Second Amendment analysis it announced in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). In an 8-1 decision, with Chief Justice Roberts writing for the majority, the Court upheld the challenged statute. Several Justices wrote significant concurrences while Justice Thomas, the author of Bruen, dissented. This post summarizes Rahimi, considers whether the case amounts to a retreat from Bruen, and addresses Rahimi’s applicability to North Carolina DVPOs. The post also considers the implications of Rahimi on pending Second Amendment cases, including those challenging felon disqualification.
Rahimi in a nutshell. In 2020, a Texas restraining order was issued against Zackey Rahimi based on evidence that he assaulted his girlfriend and fired a gun in her general direction as she fled. Rahimi agreed to the entry of the order. Police suspected that Rahimi violated the protective order by attempting to contact his girlfriend; assaulted another woman with a gun; and participated in five other incidents in which he fired a handgun at or near other people. Based on their suspicions, officers obtained a search warrant for Rahimi’s house and found two firearms and ammunition.
Rahimi was charged with violating 18 U.S.C. § 922(g)(8). That statute makes it a crime for a person to possess a gun if the person is subject to a qualifying domestic violence protective order. Specifically, the order must be “issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate”; it must “restrain[] such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or . . . plac[ing] an intimate partner in reasonable fear of bodily injury to the partner or child”; and it must either (1) “include[] a finding that such person represents a credible threat to the physical safety of such intimate partner or child” or (2) “by its terms explicitly prohibit[] the use, attempted use, or threatened use of [injurious] physical force against such intimate partner or child.” The protective order against Rahimi fell within the scope of the statute.
Rahimi moved to dismiss, arguing that Section 922(g)(8) was facially invalid under the Second Amendment. The motion was denied, and he pled guilty and appealed to the Fifth Circuit. A three-judge panel ruled against him. He petitioned for rehearing en banc, and while his petition was pending, the Supreme Court decided Bruen, which adopted a new approach to Second Amendment analysis. Rather than the “intermediate scrutiny” test that most lower courts had followed, the Supreme Court instructed that regulations burdening the Second Amendment’s right to bear arms were presumptively invalid and could be sustained only if historical analogues existed at or near the time of ratification, because that would show that the original public understanding of the Second Amendment, and the nation’s history and tradition of gun regulations, was consistent with the type of regulation at issue.
In light of Bruen, the Fifth Circuit withdrew its prior opinion and assigned the case to a new panel. The new panel ruled for Rahimi, finding that the various historical precedents identified by the government “falter[ed]” as appropriate precursors. The government petitioned for certiorari and the Supreme Court granted review.
Majority opinion. Chief Justice Roberts wrote for the majority. He emphasized generally that a historical analogue need not be a “twin” of the challenged regulation, and suggested that some lower courts had “misunderstood the methodology” used in Bruen. He explained that the requisite historical inquiry is “not meant to suggest a law trapped in amber” and that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.”
Turning specifically to Section 922(g)(8), the Chief Justice found that section was sufficiently similar to two historical analogues. The first were so-called surety laws, which “authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed. If the individual did post a bond and then broke the peace, the bond would be forfeit.” These surety laws “could be invoked to prevent all forms of violence, including spousal abuse.” The Chief Justice concluded that they therefore shared a common purpose with Section 922(g)(8).
The second set of analogues were what the Chief Justice described as “going armed” laws, like North Carolina’s law against going armed to the terror of the public. These laws prohibited people from arming themselves with dangerous weapons and going about in public while frightening others. According to Blackstone, the law punished these acts with “forfeiture of the arms . . . and imprisonment.” 4 Blackstone 149. For the Chief Justice, these laws shared a similar motivation with the statute under consideration – controlling the risk of violence – and did so through a similar means, namely, disarmament.
Considering these precedents plus “common sense,” the Chief Justice summarized that:
Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another. That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon. Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi.
The Court therefore rejected Rahimi’s facial challenge and affirmed his conviction.
Extras in the majority opinion. Beyond the Court’s principal holding, the majority opinion contained two other points that may be noteworthy:
- First, the Court rejected the government’s argument that Rahimi was not part of the set of “responsible” citizens to whom the Second Amendment applies. The term “responsible” appeared in several of the Court’s prior cases, and the government invoked that to argue that the criminally-inclined do not possess Second Amendment rights. Rahimi rejected that argument and strongly suggests that the term bears no interpretive weight. The Court said that “‘[r]esponsible’ is a vague term” and that it was used simply “to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right.”
- Second, the Court – as it had done in Bruen – declined to clarify whether historical analogues should come from circa 1791, when the Second Amendment was ratified, or circa 1868, when the Fourteenth Amendment (which later was interpreted as incorporating the Second Amendment against the states) was ratified. In a footnote, the majority noted the ongoing scholarly debate about that issue but found it unnecessary to resolve this case.
A retreat from Bruen? Bruen was controversial when it was decided and has sparked an enormous amount of Second Amendment litigation. Although the majority opinion in Rahimi is couched as a faithful application of Bruen, it is not hard to argue that Rahimi backs away from the bold strokes of Bruen. Indeed, it is clear from Justice Thomas’s dissent that the author of Bruen views Rahimi that way. Justice Thomas would have found that the government failed to bring forward appropriate historical analogues establishing that Section 922(g)(8) is “consistent with the Nation’s historical tradition of firearm regulation.”
As to surety laws, Justice Thomas notes that these laws “did not alter an individual’s right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private.” Thus, they did not impose a comparable burden on the right to bear arms as the challenged statute.
As to “going armed” laws, Justice Thomas points out that these laws “were defined by their public nature and effect.” Far from targeting domestic violence – which often takes place in the home – these laws addressed “only conduct affecting the broader public.” Further, these laws “did not prohibit carrying firearms at home or even public carry generally,” but rather “targeted only public carry that was [likely to] terrify the people.”
Finally, Justice Thomas argues against the idea that the sum of several somewhat-similar laws could do the necessary historical work: “The question before us is whether a single historical law has both a comparable burden and justification as §922(g)(8), not whether several laws can be cobbled together to qualify.”
For Justice Thomas, Rahimi is a step down a slippery slope of accepting historical antecedents that share only vague similarities – like a basis in concerns about public safety – with current regulations. He worries that the Court has accepted analogues that are “far too general” and that “elid[e] material differences between historical and modern laws” in a way that undercuts the Second Amendment.
Future cases may better calibrate how similar historical parallels must be in order to support the constitutionality of a current measure.
What Rahimi doesn’t decide. As noted above, Section 922(g)(8) applies to certain restraining orders that either (1) include a finding that the subject “represents a credible threat to the physical safety of [his or her] intimate partner or [the partner’s] child” or (2) “explicitly prohibit[] the use, attempted use, or threatened use of physical force against such intimate partner or child.” The order against Rahimi was of the first type – it included a finding that he was a threat to his girlfriend’s safety. The Court determined that disarming people subject to such orders does not violate the Second Amendment on its face. There was no as-applied challenge in Rahimi so I suppose the door to such a challenge technically remains open, though I see nothing in the majority opinion that suggests an appetite for such a challenge.
By contrast, the Court was clear that it was not deciding whether disarming people subject to the second type of order – which merely prohibits the use of physical force, without necessarily finding an elevated risk of the same – is constitutional. As Justice Gorsuch wrote in his concurrence, “we do not decide today whether the government may disarm a person without a judicial finding that he poses a ‘credible threat’ to another’s physical safety.”
That may be significant for some North Carolina DVPOs. The key requirement for issuance of a North Carolina DVPO is a judicial finding “that an act of domestic violence has occurred.” G.S. 50B-3(a). But that does not necessarily mean, in every case, that there has been a threat to the victim’s physical safety. An act of domestic violence is defined in G.S. 50B-1(a) to include not only attempting to cause bodily injury or to create an imminent fear of injury, but also putting a victim in fear of “continued harassment . . . that rises to such a level as to inflict substantial emotional distress.” Fear of continued harassment doesn’t necessarily entail a threat to a person’s physical safety. In other words, whether a North Carolina DVPO includes a finding of a threat to a victim’s “physical safety,” and so is consistent with the Second Amendment under Rahimi, may depend on the specific findings made in the order.
Future cases: reading the tea leaves. By far the most important criminal law issue implicated by the Second Amendment is the constitutionality of state and federal laws that prohibit felons from possessing guns. As I discussed here, some courts, now including two federal courts of appeals, have held that such laws are unconstitutional as applied to at least some felons – for example, those whose convictions do not suggest a propensity for violence. See Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc) (conviction for making false statements in order to obtain food stamps); United States v. Duarte, 101 F.4th 657 (9th Cir. 2024) (convictions for vandalism, possession of a controlled substance, evading a peace officer, and felon in possession of a firearm). Indeed, there is a petition for certiorari pending in the Range case. Does Rahimi say anything about the likely outcome of that litigation?
In the immediate term, I expect the Court to GVR Range – that is, to grant the petition, vacate the Third Circuit’s judgment, and remand the case for reconsideration in light of Rahimi. On reconsideration, the somewhat more elastic view of Bruen adopted in Rahimi will be wind in the government’s sails. Furthermore, the fact that the Rahimi court once again invoked the idea, dating back to District of Columbia v. Heller, 554 U.S. 570 (2008), that prohibiting gun possession by felons is “presumptively lawful” also tends to bolster the government’s position. None of that is necessarily dispositive; we’ll have to wait and see to know for sure.
All the other opinions. Rahimi spawned all sorts of concurring opinions, many of which are essentially position statements on constitutional interpretation. They would be fantastic assigned texts for a law school class about constitutional law. For those interested, here’s a brief summary, in the order in which the opinions appear (which seems to be based on seniority).
Sotomayor, joined by Kagan. Justice Sotomayor expressed her belief that “Bruen was wrongly decided,” and that some form of means-end scrutiny would be a better approach to Second Amendment interpretation. However, she concluded that Chief Justice Roberts’s majority opinion is a better interpretation of Bruen than Justice Thomas’s dissent. In her view, the dissent “would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”
Gorsuch. Riffing on a phrase used by the Chief Justice, Justice Gorsuch opined that the whole point of the Constitution is to make some rights “trapped in amber” and limited by the original meaning of the document:
Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.) Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule.
Kavanaugh. Justice Kavanaugh’s lengthy concurrence expressed a view of constitutional interpretation similar to Justice Gorsuch’s, arguing that relying “on history when construing vague constitutional text” is appropriate because history can shed light on the text’s meaning and “is far less subjective than policy.” Justice Kavanaugh provided an exposition of how he interprets the text of the Constitution, including by consulting pre- and post-ratification history, as well as the role of precedent.
Barrett. Justice Barrett’s concurrence reached similar themes. One unique point of her opinion is her expression of caution regarding the use of post-ratification history, particularly if such history consists only of scattered examples or of examples far later than ratification.
Jackson. Justice Jackson expressed the view that the majority opinion is a fair application of Bruen, but also that the case itself shows the problems with the interpretive approach adopted in Bruen:
When this Court adopts a new legal standard . . . [t]he tests we establish bind lower court judges, who then apply those legal standards to the cases before them. In my view, as this Court thinks of, and speaks about, history’s relevance to the interpretation of constitutional provisions, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention. The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness. It isn’t just that Bruen’s history-and-tradition test is burdensome . . . . The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them.
Conclusion. Rahimi was a spectacularly unsympathetic litigant. Whether that influenced the Court’s thinking, or whether the Court was concerned about the litigation tsunami in the lower federal courts, are questions about which we can only speculate. Future cases, with more sympathetic parties, may also shed some light on the matter.
