Decision alert: Supreme Court upholds ban on gun ownership in domestic violence restraining orders

On 21 June 2024 in United States v. RahimiThe Supreme Court ruled that a person who, in the opinion of a court, poses a credible threat to the physical integrity of another person may be temporarily disarmed under the Second Amendment. Chief Justice Roberts wrote the opinion for the court. Several justices wrote concurring opinions. Justice Thomas was the only one to dissent.

As summarized in Dykema’s December 2023 issue, a court issued a domestic violence restraining order against Zackey Rahimi after he attacked his then-girlfriend. Although he was covered by the order prohibiting him from owning firearms, he was involved in five shootings. Rahimi was charged with violating 18 USC § 922(g)(8), which prohibits persons subject to a domestic violence restraining order from owning firearms. Rahimi argued that § 922(g)(8) violates the Second Amendment. The district court disagreed, as did the Fifth Circuit at first. But the appeals court withdrew its opinion and overturned the ruling, reversing the Supreme Court’s 2022 decision in NYSRPA vs. Bruen and declare that Section 922(g)(8) violates the Second Amendment.

The Supreme Court reversed the Fifth Circuit’s ruling. The court concluded that if a court issuing a restraining order finds that a person poses a credible threat to the physical integrity of another person, that person can be prohibited from possessing guns under the Second Amendment while the order is in effect. The court found that Section 922(g)(8) “fits well within the nation’s tradition of gun laws that prevent persons who threaten others with physical violence from misusing weapons.” The court compared the law to bail laws that authorize judges to require bail (or jail) from persons suspected of future wrongdoing, and the bail is forfeited if the person breaks the peace. It noted that “some courts have misunderstood the methodology of (the court’s) recent Second Amendment cases,” including BruenThe court emphasized that for a gun regulation to be constitutionally challenged, there must be only a “historical analogue” – not a “semi-image” or “historical twin” – in the country’s regulatory tradition. And the safety laws were pretty close to a historical analogue.

Five of the seven Justices who joined the majority opinion wrote a separate concurrence. Justice Sotomayor (joined by Justice Kagan) stated that she continued to hold that Bruen wrong decision and that she “remains concerned about Bruen‘s short-sighted focus on history and tradition.” Nevertheless, she agreed with the court’s opinion, Bruen § 922(g)(8) and argued that the interpretation of the Bruen “would make the historical inquiry so demanding as to be useless.” In his own concurrence, Justice Gorsuch emphasized that courts must proceed with caution when comparing challenged laws to historical gun laws, “or risk squandering an individual right that the people have expressly reserved for themselves in the text of the Constitution.” Justice Kavanaugh’s concurrence focused on the proper role of text, history before and after ratification, and precedent in interpreting the Constitution. Justice Barrett’s concurrence cautions against an overemphasis on “tradition” divorced from the original meaning of the text of the Constitution, since “isolated cases or laws drawn from history may have little bearing on the meaning of the text.” Justice Jackson, who stated that she would have Bruen Dissenters, had she been on the court, wrote about the confusion that plagued the lower courts when they tried to Bruen‘s history and tradition framework.

Justice Thomas would have struck down Section 922(g)(8) because there is no “single historical rule that justifies it.” In his dissent, he explained that bail laws “impose a far lesser burden” on the right to bear arms than Section 922(g)(8) and that the government failed to demonstrate that the law’s “stricter approach” fits with our nation’s historical tradition of gun regulation. Thomas, who wrote the majority opinion in Bruenargued that the majority had not faithfully applied Bruen.

Findings:

• Section 922(g)(8) survives Rahimi’s constitutional challenge and the government can proceed with enforcement of the law.
• The case was eagerly awaited as it presented the courts with the Bruen But apart from identifying at least one gun law that Bruen The constitutional investigation did not provide much clarity. Even among the judges who both here and in BruenThere seems to be no consensus on how to apply the history and tradition framework.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monica Harris, Puja Valeraor A. Joseph Duffy, IV.