United States v. Rahimi
On June 21, 2024, the Supreme Court handed down its decision in United States v. Rahimi. Rahimi took a step back from the implications of the Supreme Court’s 2022 decision in New York State Rifle & Pistol Assn., Inc. v. Bruen. While there was only one dissent in Rahimi, five of the eight justices in the majority wrote their own opinion. The Rahimi opinion does little to clarify how courts should address other Second Amendment restrictions.
Background of the Case
The facts giving rise to the Rahimi decision arise right here in Tarrant County. On February 5, 2020, Zackery Rahimi agreed to a protective order issued by the 324th District Court in Tarrant County. The order, which lasted for two years, acknowledged that family violence had occurred and was likely to recur. It also prohibited Rahimi from possessing firearms during its term.
State Authority to Issue Domestic Violence Protective Orders Restricting Second Amendment Rights
Under Chapter 85 of the Texas Family Code, a court has the authority to issue a protective order to safeguard victims of family violence. When issuing a protective order, the court can either approve an agreed order or adjudicate a contested one. An agreed protective order arises when all parties consent to the terms without requiring a judicial determination of family violence, streamlining the process and avoiding litigation. Conversely, a contested protective order necessitates a court hearing where evidence is presented, and the judge must find that family violence has occurred and is likely to occur in the future.
To issue a protective order under the Texas Family Code, the court must make two key findings:
Family Violence Has Occurred: The court must determine that family violence has occurred. This involves reviewing evidence or testimony to conclude that an act of violence, abuse, or threat of violence has been committed by a family or household member against another.
Family Violence Is Likely to Occur in the Future: The court must also find that there is a likelihood of family violence occurring in the future. This assessment considers the history of violence, the behavior of the respondent, and any other relevant factors indicating the potential for future harm.
Protective orders like this are enforceable both civilly and criminally.
Firearm Prohibition for Individuals Subject to Domestic Violence Protective Orders – 18 USC 922(g)(8)
Federal law under 18 USC 922(g)(8) makes it unlawful for individuals under such orders to possess firearms.
“It shall be unlawful for any person—
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.”
Initiation of Federal Charges Against Rahimi
On January 14, 2021, Rahimi was found in possession of firearms, violating the protective order and leading to his indictment under federal law.
Rahimi challenged the indictment, arguing that 18 USC 922(g)(8) violated his Second Amendment rights. While the District Court initially denied his motion to dismiss, the U.S. Court of Appeals for the Fifth Circuit later reversed this decision, citing the Supreme Court’s ruling in Bruen.
Supreme Court’s Decision
The Supreme Court reversed the Fifth Circuit’s decision on June 21, 2024. Chief Justice Roberts, writing for the majority, clarified that while historical analogues are essential in Second Amendment cases, courts should not require an exact historical match. Instead, they should determine if the modern regulation is “relevantly similar” to historical practices.
Roberts emphasized that the Second Amendment is not confined to the types of arms or regulations that existed in 1791. He noted that the right extends to all bearable arms and permits regulations that address modern needs while being consistent with historical principles. Roberts pointed out that early English and American laws often allowed disarming individuals who posed a threat to public safety, such as through surety laws and “going armed” laws.
Historical Context
The Court’s analysis included a review of historical firearm regulations:
- Surety Laws: These laws allowed magistrates to require individuals suspected of future misbehavior to post a bond, effectively preventing violence before it occurred.
- Going Armed Laws: These laws punished individuals who menaced others with firearms, often resulting in the forfeiture of arms and imprisonment.
Roberts concluded that these historical laws are analogous to modern regulations like 18 USC 922(g)(8), which aim to prevent individuals who pose a credible threat from possessing firearms.
| Chief Justice Roberts (majority opinion): The Second Amendment allows for temporary disarmament of individuals found by a court to pose a credible threat to others’ physical safety, so 18 U.S.C. §922(g)(8) is constitutional as applied to Rahimi. |
| Justice Sotomayor (concurring): While still disagreeing with Bruen, she joins the majority opinion as it correctly applies Bruen’s test and provides helpful guidance to lower courts. |
| Justice Gorsuch (concurring): He agrees with the majority that Rahimi’s facial challenge fails, as the law can be constitutionally applied in at least some circumstances. |
| Justice Kavanaugh (concurring): He emphasizes that constitutional interpretation should rely on text, history, and precedent rather than policy preferences or balancing tests. |
| Justice Barrett (concurring): She clarifies that historical analogues need not be exact matches, but should reveal principles consistent with the challenged law. |
| Justice Jackson (concurring): While joining the majority, she expresses concern about the difficulties lower courts face in applying Bruen’s history-focused test. |
| Justice Kagan: Did not write a separate opinion, but joined Justice Sotomayor’s concurrence. |
| Justice Alito: Did not write a separate opinion, but joined the majority opinion. |
| Justice Thomas (dissenting): He argues that §922(g)(8) violates the Second Amendment because there is no historical analogue imposing a comparable burden for comparable reasons. |
Problems with Application and Interpretation
Despite the Supreme Court’s ruling in Rahimi, significant confusion remains in lower courts about how to apply the principles from Bruen. The decision in Bruen set a high bar for justifying gun regulations, requiring that any gun law be consistent with the Nation’s historical tradition of firearm regulation. This vague and stringent standard has left lower courts struggling to determine what qualifies as a “relevantly similar” historical analogue.
Justice Clarence Thomas, in his dissent, argued that Bruen compelled the Fifth Circuit to rule that domestic abusers have a Second Amendment right to own a gun. He contended that Rahimi essentially carves out an exception to Bruen large enough to disarm Rahimi, a notably violent individual, but does little else to provide meaningful guidance. The decision offers no substantial framework for lower courts to navigate the complex historical tradition test, leaving them to interpret what “relevantly similar” means in practice.
The Burden of Historical Tradition
Bruen placed an enormous burden on government lawyers to prove the constitutionality of any gun law by pointing to analogous regulations from the time the Constitution was framed. This requirement is particularly challenging when addressing general societal problems that have persisted since the 18th century. For instance, Roberts writes that a court must ascertain whether a new law is “relevantly similar” to laws that tradition permits, considering both the law’s purpose and the burden it places on the Second Amendment right. He caveats that even if a law addresses a permissible reason, it may not be compatible with the right if it imposes a burden beyond what was done at the founding.
Chief Justice Roberts’s Reasoning
Roberts claims that modern laws prohibiting individuals like Zackey Rahimi from owning guns are constitutional because of the existence of historical surety laws. These laws required individuals suspected of future misbehavior to post a bond, which could be invoked to prevent various forms of violence, including spousal abuse. According to Roberts, these surety laws are “relevantly similar” enough to justify modern prohibitions on firearm possession by domestic abusers.
Conclusion
The Supreme Court’s ruling in United States v. Rahimi reaffirms the constitutionality of disarming individuals subject to protective orders under specific conditions. However, the decision leaves many questions unanswered for lower courts struggling to apply the vague “historical tradition” test from Bruen. This ambiguity highlights the ongoing challenges in interpreting and enforcing firearm regulations in a way that both respects constitutional rights and protects public safety.
