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SCOTUS tempers pro-gun 2nd Amendment precedent; holds States may disarm a citizen who poses “a clear threat of physical violence to another”

United States of America v. Rahimi, USSC No. 22-915, 6/21/2024, reversing United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023); Scotusblog page (with links to briefs and commentary)

In a much-anticipated Second Amendment decision, SCOTUS tries to clarify its turbulent precedent regarding firearm restrictions and offers a limited holding upholding a federal statute disarming persons subject to domestic abuse restraining orders so long as specific statutory elements are met.

(Our post on the cert grant is available here).

Rahimi’s girlfriend obtained a restraining order issued under a Texas statute following an incident in which Rahimi battered her and fired a gun at her as she fled. (p.2). The order granting the restraining order including findings that Rahimi had committed “family violence,” that this violence was “likely to occur again” and that Rahimi posed a “credible threat” of violence to his girlfriend. (Id.). The order had the effect of suspending Rahimi’s gun license for 2 years. (Id.). After a spate of new criminal conduct, Rahimi was ultimately found to be in possession of a firearm, in contravention of the restraining order. (p.3). He was therefore indicted under 18 U.S.C. § 922(g)(8), which criminalizes the possession of a firearm while subject to a domestic violence restraining order. (Id.).

That statute has three elements: (1) “the defendant must have received actual notice and an opportunity to be heard before the order was entered”; (2) the order must prohibit the defendant from either ‘harassing, stalking or threatening’ his ‘intimate partner’ or his or his partner’s child, or ‘engaging in other conduct that would place [the] partner in reasonable fear of bodily injury’ to the partner or child” and (3) “the order must either contain a finding that the defendant ‘represents a credible threat to the physical safety of his intimate partner or his or his partner’s child’ […] or ‘by its terms explicitly prohibit[] the use,’ attempted use or threatened use of ‘physical force’ against those individuals.” (p.3-4).

While Rahimi did not dispute that his conduct satisfied the legal elements, he argued that the prosecution was nonetheless unlawful, as it was barred by the Second Amendment. (p.4). Ultimately, the Fifth Circuit agreed with Rahimi, resulting in this well-publicized case reaching SCOTUS.

Although some predicted that SCOTUS would have a difficult time, post-Bruen, in formulating a way to neatly forbid an egregiously dangerous person like Rahimi from possessing a firearm while also respecting its only recently-broadened Second Amendment jurisprudence, the case is actually a surprising 8-1 win for the government. SCOTUS holds:

When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may–consistent with the Second Amendment–be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.


To get there, Chief Justice Roberts, writing for the majority, works hard at softening the extreme textualist position the Court previously set forth in Bruenreminding readers that while that analytical framework remains the law (the government must prove a challenged prohibition fits within the “historical tradition of firearm regulation”), “these precedents were not meant to suggest a law trapped in amber.” (p.7). Courts need not require exacting historical “twins;” rather the question is “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” (Id.).

Assessing the relevant historical record, as Bruen mandates, SCOTUS is satisfied that the existence of ancient “surety” and “affray” laws “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” (p.13). Or, as SCOTUS states its holding at the conclusion of the opinion, “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.” (p.17).

In a short section especially relevant for litigators currently pursuing Second Amendment challenges, SCOTUS therefore criticizes two aspects of the Fifth Circuit’s reasoning. First, it faults the lower court for pursuing too exacting of a Bruen analysis, requiring a “historical twin” instead of a “historical analogue.” (p.16). Second, it believes the Fifth Circuit failed to properly respect the case law regarding facial challenges, as a reviewing court’s task is to “seek harmony, not to manufacture conflict.” (Id.).

Justice Sotomayor, joined by Justice Kagan, files a concurring decision, which reads the majority interpretation as permitting “a historical inquiry calibrated to reveal something useful and transferable to the present day” while rejecting Justice Thomas’s insistence on a “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.” (p.23). Justice Sotomayor therefore perceives the majority opinion, with its focus on the “principles” which underpin our regulatory tradition, as slightly broadening the scope of the Bruen analysis (which she continues to view as mistaken). (p.24).

Justice Gorsuch concurs to clarify some points of originalist theory, while also making clear that he believes the holding at issue to be a narrow one, thereby expressly reserving judgment on the constitutionality of “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.” (p.34).

Justice Kavanaugh also concurs with a lengthy treatise on originalism seeking to place Antonin Scalia within the rank of James Madison and John Marshall as a source of constitutional understanding. Justice Barrett, meanwhile, offers her own paean to originalist thought, while also joining fully the Chief Justice’s insistence on using a “wider lens” in conducting a historical analysis, one that searches for “a principle, not a mold.” (p.63). Like Justice Gorsuch, she too leaves broader categories of regulation for another day. (p.64).

Justice Jackson, meanwhile, concurs while also sounding alarm bells about the viability of the Bruen test, having not been convinced that the Court’s attempt at clarification will resolve a chaotic state of the law seemingly created by what she views as a fallacious model of historical judging. Finally, Justice Thomas files a lengthy dissent, one that essentially faults the Court for engaging in a too-general level of historical analysis and for not fully respecting the mandates of Bruen.

Just a few concluding points:

  1. Litigators eagerly pursuing Bruen challenges must now recalibrate their arguments post-Rahimi. Although claiming to faithfully apply that test, the conflict between Justice Thomas and Chief Justice Roberts proves that the Court has tried to, ever-so slightly, moderate the hard-line position famously taken by Thomas in Bruen. Its criticism of the Fifth Circuit is obviously meant to tamp down those defense wins which have made Second Amendment litigation so dynamic. Whether Courts can, in fact, rise above what Justice Jackson pessimistically labels as a state of legal chaos remains to be seen, however.
  2. The majority opinion does contain at least one other notable holding for pro-gun arguments, however, as it expressly rejects the oft-invoked claim that the Second Amendment permits disarmament of those deemed “not responsible,” as that criterion is simply too generic and not reliably derived from SCOTUS precedent.
  3. The decision also leaves open a broader question currently dividing lower courts–what about felon disenfranchisement? While Justice Roberts repeats the usual bromide that such prohibitions are “presumptively lawful” at one point in his opinion, he also takes pains to emphasize the limited scope of SCOTUS’s holding, one that is applicable only to persons who actually pose a “credible threat” of violence. Justices Gorsuch and Barrett remind the reader that this question is still up in the air, while Justice Thomas reiterates his continued desire to drive a luxury RV sized hole through almost any firearm regulation.
  4. Finally, readers might be wondering about the applicability of this case to Wisconsin law. § 941.29(1m)(f) makes it unlawful for a person to possess a firearm while subject to a domestic abuse restraining order issued under § 813.12. Notably, the Wisconsin statute and the federal law at issue don’t exactly match up and it would appear that Wisconsin’s firearm prohibition is therefore somewhat broader than the federal law at issue in Rahimi  as it does not contain the explicit “credible threat” finding central to majority’s analysis here. Viewed broadly, our statute probably satisfies the requirements of Rahimi; yet, we leave it as a question for another day whether some ingenious litigator can derive a meritorious challenge in this new era of potential post-Bruen retrenchment. (With a reminder that this case merely concerns a facial challenge; whether individual as-applied challenges are still possible is also an open question).



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