The U.S. Supreme Court handed down a landmark Second Amendment decision this morning in a case that pitted the Second Amendment against the interests of domestic violence victims.
The Court held 8–1 in United States v. Rahimi that a law temporarily disarming a person subject to a domestic violence restraining order does not violate the Second Amendment in an opinion written by the Chief Justice.
“When an individual has been found by a court to pose a credible threat to the physical safety of another,” the Court held, “that individual may be temporarily disarmed consistent with the Second Amendment.”
Justices Sotomayor, Gorsuch, Kavanaugh, Barrett, and Jackson wrote concurring opinions. Only Justice Thomas dissented.
Legal Insurrection covered the lower court’s decision and Rahimi’s appeal to the Supreme Court.
The case originated in the Fifth Circuit, invalidating a law prohibiting firearms possession by individuals subject to an order. The lower court found this law violated the Second Amendment right to bear arms.
A family court judge in Texas issued the order against Rahimi and included a finding that “Rahimi had ‘committed family violence,’ and such violence was ‘likely to occur again in the future.'”
The United States, which petitioned the Court to review the Fifth Circuit’s decision, described the circumstances leading to the order:
In December 2019, Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault. (citations omitted)
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 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.
Fifth Circuit Background
Rahimi violated § 922(g)(8) by possessing a firearm, and “[t]he [district] court sentenced him to 73 months of imprisonment, to be followed by three years of supervised release.” Rahimi challenged his conviction, arguing the law violated the Second Amendment.
The Fifth Circuit, which previously upheld § 922(g)(8), ruled against Rahimi, who asked the court to reconsider its decision in light of the landmark Supreme Court decision New York State Rifle & Pistol Association, Inc. v. Bruen, which announced a new standard for evaluating gun laws:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.
On rehearing Rahimi’s claim, the Fifth Circuit ruled in his favor and struck down § 922(g)(8) after finding no historical analogs to the contested law. The court reached this conclusion 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.”
MORE TO FOLLOW
The majority found a tradition of disarming individuals ‘who threatened physical harm’
The Chief Justice’s opinion held that from “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.”
The majority found historical analogs to the challenged law in surety and “going armed” laws that coexisted with the Second Amendment since its ratification.
“[T]he surety laws could be invoked to prevent all forms of violence, including spousal abuse,” and required posting of a bond that the subject would forfeit if he engaged in violence.
“Importantly for this case, the surety laws also targeted the misuse of firearms,” the majority opinion reads.
“Going armed” laws “prohibited ‘riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land'” and could subject a violator to “forfeiture of their arms and imprisonment.”
These laws, taken together, established a tradition of disarming individuals “pos[ing] a clear threat of physical violence to another” and were analogous to the challenged law, according to the majority.
Five justices wrote concurrences expounding on their views
Sotomayor’s concurrence, which Justice Kagan joined, challenged Thomas’s dissenting views as threatening “to make the 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.”
Gorsuch wrote to reiterate his view that the Second Amendment “codified a pre-existing right” whose scope today remains the same as it did when the amendment was ratified.
Kavanaugh devoted his concurrence to expounding on “the proper roles of text, history, and precedent in constitutional interpretation.”
Barrett, echoing Gorsuch, stated that “the Second Amendment is not absolute. It codified a pre-existing right, and preexisting limits on that right are part and parcel of it.”
Jackson began by expressing her disagreement with the Court’s Bruen holding, noting that she “would have joined the dissent had [she] been a Member of the Court at that time,” but nonetheless affirming that “Bruen is now binding law.” Jackson then praised the Court’s Rahimi decision for “fairly appl[ying] that precedent.”
Thomas wrote a lengthy dissent criticizing the Court’s finding of historical analogs
“Not a single historical regulation justifies the statute at issue,” Thomas’s dissent begins before moving on to criticize the court for “cobbl[ing] together” two historical laws to find an analogous purpose (preventing domestic violence) and an analogous means (forfeiture of firearms and imprisonment).
“Neither the Court nor the Government identifies a single historical regulation with a comparable burden and justification as §922(g)(8),” Thomas wrote.
Thomas also chastised the majority for relying on “going armed” laws, which governed public conduct, to support the challenged law, which also encompasses firearms possession in the home.
Rahimi opinion:
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