American Journal of Trial Advocacy

Photo Credit: Paige Pfleger, The Supreme Court Will Decide if Domestic Abuse Orders Can Bar People From Having Guns. Lives Could Be at Stake., ProPublica (Nov. 3, 2023, 6:00 AM), https://www.propublica.org/article/us-vs-rahimi-gun-rights-domestic-violence-converge-supreme-court-case

Authored by: Anna L. Dozier

United States v. Rahimi is a significant Supreme Court case decided 8-1 regarding the rights and protections of the Second Amendment concerning domestic violence.[1] The Second Amendment provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[2] The question raised in Rahimi is whether a federal statute prohibiting an individual at the mercy of a restraining order due to domestic violence from being in possession of a firearm is consistent with the Second Amendment.[3] 18 U.S.C. § 922 (g)(8) prevents any person subject to a domestic violence restraining order from possessing a firearm, punishable by up to 15 years in prison, if three requirements are met: (1) before the order is entered, the defendant must receive actual notice and must have an opportunity to contest or be heard, (2) the order must include a prohibition of the defendant from “harassing, stalking, or threatening an intimate partner . . . or child of such intimate partner” or acting in such a way to put either of them in “reasonable fear of bodily injury,” and (3) the order finds that the defendant poses a “credible threat to the physical safety of such intimate partner or child” or “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force . . . that would reasonably be expected to cause bodily injury.”[4]

At the center of this case is Zackey Rahimi, charged with violating 18 U.S.C. § 922. Rahimi challenged the prima facie constitutionality of this statute, arguing that it violated the Second Amendment on its face.[5] In 2019, Rahimi began arguing with his girlfriend, the mother of his child, in a park where he dragged her to his car and shoved her in, causing an injury to her head while an onlooker watched.[6] Upon noticing the individual, Rahimi reached to pull out his gun from the car, giving his girlfriend an opportunity to run; however, he then fired his gun, unclear if it was aimed either towards her or the onlooker.[7] His girlfriend then sought a restraining order even after Rahimi threatened to shoot her if she reported the incident.[8] After Rahimi declined to contest, a restraining order was placed on him, finding that his violence was “likely to occur again” and he was a “credible threat” to the “physical safety” of his girlfriend, an intimate partner.[9] This triggered the suspension of his gun license for two years, the duration of the restraining order.[10] A few months later, Rahimi approached his girlfriend’s house and tried to contact her through social media multiple times in violation of the restraining order.[11] A few months after that, he threatened a different woman with a gun.[12] While being arrested for this assault, the police found he was involved in several more shootings in Texas, including ones from a drug deal and road rage.[13] While conducting a lawful search of Rahimi’s house, the police found weapons, ammunition, and a copy of the restraining order.[14]

Rahimi was then charged with unlawful firearm possession under the statute, and the district court subsequently denied Rahimi’s motion to dismiss the indictment on his argument that the statute violated the Second Amendment.[15] Consequently, he plead guilty while appealing with the same facial challenge.[16] After his appeal was denied, Rahimi petitioned for a rehearing en banc.[17] While awaiting a decision on his appeal, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen,[18] where the Court ruled that federal restrictions on firearms must be “consistent with the Nation’s historical tradition of firearm regulation.”[19] As a result, Rahimi was granted a new panel to hear the arguments, and the court reversed its decision, finding that 18 U.S.C. § 922 (g)(8) “does not fit within our tradition of firearm regulation.”[20] Subsequently, the Supreme Court granted certiorari.[21]

Writing for the majority opinion, Chief Justice John Roberts upheld 18 U.S.C. § 922 (g)(8), concluding that it does not, on its face, violate the Second Amendment, noting that our Nation’s history is not unfamiliar with restricting firearm use for violent individuals.[22] The right to keep and bear arms under the Second Amendment is a fundamental right that ensures Americans’ means of self-defense, however, this right is not without limits.[23] The most recent test for the constitutionality of Second Amendment restrictions is found in Bruen, where the Supreme Court instructed lower courts to base their decisions on the “historical tradition of firearm regulation.”[24] Unfortunately, lower courts have interpreted this to exclude the evolution of legislation that restricts only the use of “muskets and sabers,” a suggestion that the Court denies in Rahimi.[25] The Supreme Court in District of Columbia v. Heller[26] clarified that the Second Amendment extends beyond just the weapons that existed at our Nation’s founding, and it permits updated legislation to apply protections of our modern weapons that were not in existence at our Nation’s founding.[27]

Clarifying Bruen, the Supreme Court reiterates that in considering whether a regulation aligns with our nation’s history, the courts must decide if the regulation is “relevantly similar,”[28] not a “historical twin,”[29] to the traditional permits of our laws.[30] In doing so, the courts should faithfully discern the balance between our nation’s founding principles and the modern circumstances we currently face.[31] In a facial challenge like Rahimi’s, a defendant must “establish that no set of circumstances exists under which the Act would be valid,”[32] meaning the Government must only demonstrate that the Act is constitutional in any set of circumstances.[33] The statute is constitutional as applied to the circumstances in Rahimi.[34]

The majority opinion examines the history of early English law and American common law regarding restrictions on arms for violent individuals to determine whether 18 U.S.C. § 922 (g)(8) is relevantly similar to founding traditions and, therefore, constitutional on its face.[35] The Court uses two examples from English law that were incorporated into American common law: surety laws and going armed laws.[36] Surety laws were preventative measures allowing a judge to order an individual, including a spouse, to post a bond if the individual was suspected of committing future violence and misusing firearms.[37] While surety laws aimed to protect against future misconduct by violent individuals, going armed laws worked to punish those individuals for affrays.[38] The prohibition on affrays could require those who armed themselves to instill terror in others to forfeit their arms.[39] Drawing from these historical traditions, the Supreme Court in Rahimi finds that it is “common sense” that an individual may be disarmed if they pose a “clear threat of physical violence to another.”[40] 18 U.S.C. § 922 (g)(8) is not identical, but still relevantly similar to the surety and going armed laws, as all work to restrict firearms in the context of threats of physical violence.[41] Thus, this federal statute does not violate the Second Amendment when a court temporarily disarms an individual who poses a credible threat of physical violence.[42]

Justice Clarence Thomas respectfully dissents, arguing that 18 U.S.C. § 922 (g)(8) targets the core of the Second Amendment, and the majority failed to identify any historical traditions or laws that support or are relevantly similar to the statute.[43] He critiques the majority for upholding this statute, as it automatically strips individuals of a right without proper due process.[44] Justice Thomas asserts that the Government cannot remove the right to keep and bear arms from those subject to a restraining order if the individual has never been convicted of a crime.[45] He does not dispute that Bruen requires firearm regulations to align with our Nation’s traditions.[46] Still, he finds the majority’s reliance on the early traditions of surety laws and going armed laws undermines the purpose of the Second Amendment, as those traditions feed the dangerous idea that Congress can disarm those deemed dangerous or unfit.[47] He warns of a future where the Rahimi decision will “risk the Second Amendment rights of many more.”[48]

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[1] 602 U.S. 680 (2024).

[2] U.S. Const. amend II.

[3] Rahimi, 602 U.S. at 684-86.

[4] 18 U.S.C. § 922 (g)(8)(A-C).

[5] Rahimi, 602 U.S. at 689.

[6] Id. at 686.

[7] Id.

[8] Id.

[9] Id. at 686-87.

[10] Id. at 687.

[11] Rahimi, 602 U.S. at 687.

[12] Id.

[13] Id.

[14] Id. at 688.

[15] Id. at 68-89.

[16] Id. at 689.

[17] Rahimi, 602 U.S. at 689.

[18] 597 U.S. 1 (2022).

[19] Rahimi, 602 U.S. at 689; Bruen, 597 U.S. at 24.

[20] Rahimi, 602 U.S. at 689.

[21] Id.

[22] Id.

[23] District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

[24] Bruen, 597 U.S. at 17.

[25] Rahimi, 602 U.S. at 691-92.

[26] 554 U.S. at 570.

[27] Rahimi, 602 U.S. at 691-62.

[28] Bruen, 597 U.S. at 29.

[29] Id. at 30.

[30] Rahimi, 602 U.S. at 692 (emphasis added).

[31] Bruen, 597 U.S. at 29; Rahimi, 602 U.S. at 692.

[32] United States v. Salerno, 481 U.S. 739, 745 (1987).

[33] Rahimi, 602 U.S. at 693.

[34] Id.

[35] Id. at 693-94.

[36] Id. at 693, 697.

[37] Id. at 695-97.

[38] Id. at 697.

[39] Rahimi, 602 U.S. at 697.

[40] Id. at 698.

[41] Id. at 699.

[42] Id.

[43] Id. at 751.

[44] Id. at 748.

[45] Rahimi, 602 U.S. at 777.

[46] Id. at 750.

[47] Id. at 774.

[48] Id. at 777.