Decision Alert: Supreme Court Upholds Bar on Gun Possession Under Domestic-Violence Restraining Orders

On June 21, 2024, in United States v. Rahimi, the Supreme Court held that an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. Chief Justice Roberts authored the opinion for the Court. Several Justices wrote concurring opinions. Justice Thomas was the lone dissenter.

As summarized in Dykema’s December 2023 edition, a court issued a domestic violence restraining order against Zackey Rahimi after he assaulted his then-girlfriend. While subject to the order, which barred him from possessing firearms, he was part of five shootings. Rahimi was indicted for violating 18 U.S.C. § 922(g)(8), which prohibits individuals subject to domestic violence restraining orders from possessing firearms. Rahimi argued that Section 922(g)(8) violates the Second Amendment. The district court disagreed, as did the Fifth Circuit initially. But the Court of Appeals withdrew its opinion and reversed, applying the Supreme Court’s 2022 decision in NYSRPA v. Bruen and holding that Section 922(g)(8) violates the Second Amendment.

The Supreme Court reversed the Fifth Circuit. The Court concluded that when a court issuing a restraining order finds that an individual poses a credible threat to the physical safety of another, that individual may, consistent with the Second Amendment, be banned from possessing guns while the order is in effect. The Court found that Section 922(g)(8) “fits comfortably within” the country’s tradition of gun laws preventing individuals who threaten physical harm to others from misusing guns. The Court analogized the statute to surety laws, which authorized judges to require individuals suspected of future misbehavior to post a bond (or be jailed), and the bond would be forfeited if the individual broke the peace. Noting that “some courts have misunderstood the methodology of [the Court’s] recent Second Amendment cases,” including Bruen, the Court emphasized that for a gun regulation to withstand a constitutional challenge, there need be only a “historical analog”—not a “dead ringer” or “historical twin”—in the country’s regulatory tradition. And the surety laws were close enough of a historical analog.

Five of the seven Justices who joined the majority opinion wrote a separate concurrence. Justice Sotomayor (joined by Justice Kagan) stated that she continues to believe Bruen was wrongly decided and that she “remains troubled by Bruen’s myopic focus on history and tradition.” Still, she joined the Court’s opinion applying Bruen to uphold Section 922(g)(8) and argued that the dissent’s reading of Bruen “would make the historical inquiry so exacting as to be useless.” In his own concurrence, Justice Gorsuch emphasized that courts must proceed with care in comparing challenged laws to historical gun regulations, “or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.” Justice Kavanaugh’s concurrence focused on the proper roles of text, pre-ratification and post-ratification history, and precedent in constitutional interpretation. Justice Barrett’s concurrence cautions against overemphasis on “tradition” unmoored from the original meaning of the constitutional text because “scattered cases or regulations pulled from history may have little bearing on the meaning of the text.” Justice Jackson, who stated that she would have joined the Bruen dissent had she been on the Court, wrote about confusion plaguing the lower courts as they try to apply Bruen’s history-and-tradition framework.

Justice Thomas would have stricken down Section 922(g)(8) because no “single historical regulation justifies” it. His dissent stated that surety laws “imposed a far less onerous burden” on the right to bear arms than Section 922(g)(8) and that the Government failed to show that the statute’s “more severe approach” fits within our nation’s historical tradition of firearm regulation. Thomas, who wrote the majority opinion in Bruen, argued that the majority here did not faithfully apply Bruen.

Takeaways:

• Section 922(g)(8) survives Rahimi’s facial constitutional challenge, and the Government may continue to enforce the statute.
• The case was much anticipated for the clarity it might provide for courts applying the Bruen But other than the identification of at least one gun law that can survive the Bruen constitutional inquiry, not much clarity came. Even among the Justices who were in the majority both here and in Bruen, there doesn’t appear to be a consensus for how to apply the history-and-tradition framework

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, or A. Joseph Duffy, IV.