United States v. Rahimi, 602 U.S. __ (Jun. 21, 2024)

In 2020, a Texas restraining order was issued against Zackey Rahimi based on evidence that he assaulted his girlfriend and fired a gun in her general direction as she fled. Rahimi agreed to the entry of the order. Police suspected that Rahimi violated the protective order by attempting to contact his girlfriend; assaulted another woman with a gun; and participated in five other incidents in which he fired a handgun at or near other people. Based on their suspicions, officers obtained a search warrant for Rahimi’s house and found two firearms and ammunition.

Rahimi was charged with violating 18 U.S.C. § 922(g)(8). That statute makes it a crime for a person to possess a gun if the person is subject to a qualifying domestic violence protective order. Specifically, the order must be “issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate”; it must “restrain[] such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or . . . plac[ing] an intimate partner in reasonable fear of bodily injury to the partner or child”; and it must either (1) “include[] a finding that such person represents a credible threat to the physical safety of such intimate partner or child” or (2) “by its terms explicitly prohibit[] the use, attempted use, or threatened use of [injurious] physical force against such intimate partner or child.” The protective order against Rahimi fell within the scope of the statute.

Rahimi moved to dismiss, arguing that Section 922(g)(8) was facially invalid under the Second Amendment. The motion was denied, and he pled guilty and appealed to the Fifth Circuit. A three-judge panel ruled against him. He petitioned for rehearing en banc, and while his petition was pending, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), which adopted a new approach to Second Amendment analysis. Rather than the “intermediate scrutiny” test that most lower courts had followed, the Supreme Court instructed that regulations burdening the Second Amendment’s right to bear arms were presumptively invalid and could be sustained only if historical analogues existed at or near the time of ratification, because that would show that the original public understanding of the Second Amendment, and the nation’s history and tradition of gun regulations, was consistent with the type of regulation at issue.

In light of Bruen, the Fifth Circuit withdrew its prior opinion and assigned the case to a new panel. The new panel ruled for Rahimi, finding that the various historical precedents identified by the government “falter[ed]” as appropriate precursors. The government petitioned for certiorari and the Supreme Court granted review.

Chief Justice Roberts wrote for the majority. He emphasized generally that a historical analogue need not be a “twin” of the challenged regulation and suggested that some lower courts had “misunderstood the methodology” used in Bruen. He explained that the requisite historical inquiry is “not meant to suggest a law trapped in amber” and that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791.”

Turning specifically to Section 922(g)(8), the Chief Justice found that section was sufficiently similar to two historical analogues. The first were so-called surety laws, which “authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed. If the individual did post a bond and then broke the peace, the bond would be forfeit.” These surety laws “could be invoked to prevent all forms of violence, including spousal abuse.” The Chief Justice concluded that they therefore shared a common purpose with Section 922(g)(8).

The second set of analogues were what the Chief Justice described as “going armed” laws, like North Carolina’s law against going armed to the terror of the public. These laws prohibited people from arming themselves with dangerous weapons and going about in public while frightening others. According to Blackstone, the law punished these acts with “forfeiture of the arms . . . and imprisonment.” 4 Blackstone 149. For the Chief Justice, these laws shared a similar motivation with the statute under consideration – controlling the risk of violence – and did so through a similar means, namely, disarmament.

Considering these precedents plus “common sense,” the Chief Justice summarized that:

Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another. That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon. Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi.

The Court therefore rejected Rahimi’s facial challenge and affirmed his conviction. Several Justices wrote concurrences, and Justice Thomas, the author of Bruen, dissented.