In an 8-1 opinion by Chief Justice Roberts, the Supreme Court in United States v. Rahimi upheld the constitutionality of 18 U.S.C. § 922 (g)(8), a federal statute that prohibits gun possession for individuals who are subject to certain types of domestic violence restraining orders. It did so on narrow grounds, its holding essentially limited to a determination “that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.” The statute survived the Respondent’s facial challenge because, at least as applied to the facts of this particular case, § 922(g)(8) fits within a national tradition of gun regulations that stop individuals who threaten physical harms to others from misusing firearms.
For the Government, it’s a victory so small and hollow that it might feel more like an 8-1 tie.
Arguably, Rahimi offered the Government its best conceivable opportunity to throw a stick into the wheel of the Court’s Second Amendment jurisprudence, particularly with respect to Bruen’s historical analogue test.
Where previous landmark Second Amendment cases involved sympathetic plaintiffs challenging broadly applicable laws that severely restricted the rights of ordinary, peaceable citizens, Rahimi almost dared the Court to defend a made-for-Hollywood villain. And unlike Heller, McDonald, and Bruen, the statute at issue targeted (at least in theory) only those individuals who pose credible threats of domestic violence, a criterion undeniably met by Zackey Rahimi himself.
It’s little wonder that the Government declined to seek rehearing en banc after a Fifth Circuit panel ruled in Rahimi’s favor, choosing instead to push this case before the Supreme Court as quickly as possible. If any set of circumstances could cause the Court to grow weak-kneed over strict applications of Bruen’s historical analogy test, it would surely be this one.
And yet, even under these most ideal conditions, the Government could muster little more than a limited victory—one that’s likely to prove hollow, if not altogether pyrrhic, in the long run.
Yes, Rahimi adopts a level of generality for Bruen’s historical analogy test that, at the very least, gives the Government more breathing room in defending modern gun laws than it would have received under the most restrictive of possible applications.
And yes, the Court in Rahimi once again punted on the question of whether and to what extent Reconstruction-era history may be used to establish historical practice informing the meaning of the Second Amendment and the scope of its protections. So, at least for now, the Government may continue leaning heavily on late-19th century restrictions for its historical analogues.
But the holding itself is quite narrow, with the Court leaving the door wide open for future as-applied challenges, as well as for facial challenges to disarmament under § 922(g)(8)(C)(ii), which does not require individualized findings of dangerousness.
Even to the extent Rahimi rejects the Fifth Circuit’s analysis as inappropriately “requiring a historical twin” for the modern statute, this concession offers the Government little in the way of additional practical benefits. Many state and lower federal courts in the post-Bruen world have been happy to take as broad a view of the historical analogue test as necessary to uphold all manner of gun control restrictions.
At the same time, other parts of Rahimi critically undermine common Government arguments and may prove rather painful in ongoing litigation.
Perhaps most damaging for the Government is Rahimi’s express rejection of the theory that it can disarm anyone whom it deems “irresponsible,” because the Second Amendment protects only those are both “law-abiding and responsible.” This popular post-Bruen argument has been wielded (at times, quite successfully) to justify a number of status-based gun laws and, most recently, subjective character-based tests for concealed carry permit applicants. After Rahimi, this argument won’t be in the Government’s arsenal.
In a similar vein, the Court in Rahimi emphasized that restraining-order-based disarmament is valid only while the order is in place—a significant blow for states like California as they defend laws that prohibit individuals subjected to restraining orders from obtaining public carry permits even after the orders expire or are dissolved.
Finally, far from signaling an interest in rolling back or watering down its Second Amendment jurisprudence, the Court seemingly went out of its way to defend and even double down on the core principles of Heller, McDonald, and Bruen. The majority opinion, for example, reiterated that focused regulations like surety laws are not historical analogues for broad prohibitory schemes affecting ordinary, non-violent citizens. And in rebuking the Fifth Circuit, the Court also reaffirmed Heller’s premise that the Second Amendment’s reach extends, prima facie, to all bearable arms and not just those in existence at the time of the Founding.
The Government swung for the fences on the best pitch it will see all game. Instead of a homerun, it blooped a single into right field. None of this bodes particularly well for the future of gun control at the Supreme Court—even if it did ruin an otherwise perfect game for gun rights advocates.
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