The United States has petitioned the Supreme Court to reverse a lower court’s invalidation of a law prohibiting firearms possession by individuals subject to a domestic-violence restraining order. The Fifth Circuit Court of Appeals held the law violated the Second Amendment right to bear arms.
The appeal stems from the conviction of Zackey Rahimi for possession of a firearm in his home. A family court judge in Texas had previously issued a protective order against Rahimi after giving him notice and an opportunity for a hearing. The order included a finding “Rahimi had ‘committed family violence’ and such violence was ‘likely to occur again in the future.'”
The order “prohibited Rahimi from committing family violence and from threatening, harassing, or approaching [the recipient of the order] or her family” and “suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that possessing a firearm while the order remained in effect may be a federal felony” under the challenged law.
The challenged law, 18 U.S.C. § 922(g)(8), provides that
(g) 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 . . . .
* * *
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
For Rahimi’s violation of § 922(g)(8), “[t]he [district] court sentenced him to 73 months of imprisonment, to be followed by three years of supervised release.” Rahimi then challenged the constitutionality of § 922(g)(8) before the Fifth Circuit Court of Appeals.
The appeals court initially ruled against Rahimi, relying on its 2020 decision affirming the constitutionality of § 922(g)(8). The Supreme Court later issued its 2022 landmark decision, New York State Rifle & Pistol Association v. Bruen, which announced a new standard for evaluating gun laws.
In Bruen, the Supreme Court held that when conduct—such as possession of a firearm commonly used for self-defense—falls within the scope of the Second Amendment, the government bears the burden of showing any restraint on that conduct “is consistent with this Nation’s historical tradition of firearm regulation.”
In light of Bruen, the appeals court reheard Rahimi’s claim and struck down § 922(g)(8) because the court found no historical analogs to the contested statute, despite the government offering historical laws disarming classes of individuals “considered to be dangerous” and “laws under which a person who was found to pose a threat to someone else could bear arms only if he posted a surety.”
The appeals court distinguished those purported analogs on the basis that the former were categorical, not individualized, deprivations and that the latter were only a “‘partial restriction’ on the right to keep and bear arms, while Section 922(g)(8) ‘works an absolute deprivation of the right.'”
The Solicitor General’s petition takes issue with the appeals court’s analysis of the purported analogs, noting that Bruen held that “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”
Rahimi’s brief in response to the Solicitor General’s petition argues that the purported analogs are so dissimilar from § 922(g)(8) as to disqualify them under the Bruen framework. Rahimi’s brief argues the purported analogs “did not disarm individuals entitled to the full benefits of citizenship,” nor did those laws “disarm individuals to avoid private violence.”
Rahimi’s brief also challenges the basis for § 922(g)(8) under Congress’s power to regulate commerce. The brief argues “§ 922(g)(8) conflicts with the original understanding of the Constitution” because “Congress has no enumerated power allowing it to forbid and punish the possession of durable goods like firearms within the home merely because the items moved across state lines at some point in the past.”
In support of this argument, Rahimi’s brief points to the legislative record, which shows “Congress was initially uncertain that it had the power, ‘under the Constitution, [to] deny a man the right to keep a gun in his home.'”
The Solicitor General’s petition for a hearing by the Supreme Court:
Rahimi’s brief in opposition to a hearing by the Supreme Court:
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