At long last, the Supreme Court last week issued its eagerly-anticipated decision in United States v. Rahimi, involving a post-Bruen Second Amendment challenge to 18 U.S.C. § 922(g)(8), which criminalizes possession of a firearm while one is subject to a domestic violence restraining order. Unsurprisingly to anyone who listened to the oral argument, the Court, in a majority opinion authored by Chief Justice Roberts, voted 8-1 to uphold the criminal ban.
Justice Thomas dissented. Justice Sotomayor issued a concurring opinion, joined by Justice Kagan. And Justices Gorsuch, Kavanaugh, Barrett, and Jackson each penned separate concurrences. So there’s lots to review in the 100+ page opinion, more than can be done in this blog post. However, the top-level takeaways from the (relatively brief) majority opinion are as follows:
Clarification of the Bruen test: “relevantly similar” wins the day. Over the last two years, many lawyers (and judges) have read Bruen to set forth two different tests for analyzing whether a firearm regulation is consistent with the national, founding-era historical tradition. (In a nutshell, “distinctly similar” as to longstanding societal problems vs. “relevantly similar” for modern problems). Rahimi rejects this, dryly noting, “some courts have misunderstood the methodology of our recent Second Amendment cases.” Majority Op. at 7.
The proper test is: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” Id. The next paragraph in the opinion, describing this inquiry, will probably engender much future litigation as advocates jostle over the appropriate level of generality/granularity in comparing historical traditions:
“Why and how the regulation burdens the right are central to this inquiry. For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding. And when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’ The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.'”
Id. at 7-8 (citations to Bruen omitted). Never fear, dear reader. This analysis is a “commonplace task for any lawyer or judge.” Id. at 7.
Individuals who pose a “clear threat of physical violence to another” may be disarmed: Using this analysis, the majority held that § 922(g)(8) is “relevantly similar” to (1) “surety” laws, authorizing a form of “preventive justice” in which someone “suspected of future misbehavior” would be required to post a bond, and (2) “going armed” laws, a “mechanism for punishing those who had menaced others with firearms.” Id. at 10-13. Rahimi’s top-line holding flows from this: “Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Id.
Maybe only temporarily? One of the reasons 922(g)(8) “matches” the historical tradition of firearm regulation is because a person is only banned from possessing firearms while the restraining order is in effect, similar to how surety laws were of “temporary duration.” Id. at 14.
Judicial finding is crucial. Another reason the majority finds a match is because both involve a judicial finding that someone posed, or will pose, a danger to another person. Id. These two caveats almost certainly will come up in future Second Amendment challenges to criminal statutes.
Uphill battle for facial Second Amendment challenges. Although the Court does not address this at length, it does fault the Fifth Circuit’s analysis of facial challenges and reaffirms Salerno’s holding that a facial challenge will only succeed when a law is invalid in all of its applications. Id. at 16-17.
What about § 922(g)(1)? What about other criminal statutes? What’s next? Unclear! At one point, the majority echoes its dicta in Heller and Bruen, writing, “we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse,” citing Heller. Majority Op. at 14. On the other hand, Justice Gorsuch’s concurrence takes great pains to note what Rahimi does not decide, including: permanent vs. temporary bans; bans without a judicial finding; constitutional challenges when someone is acting in self-defense (suggesting that an as-applied challenge could succeed); and, interestingly, notes, “we [do not] purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’” Concurrence at 6.
One thing to watch will be the fate of the pending Second Amendment cert petitions, most notably the Third Circuit felon-in-possession case finding 922(g)(1) unconstitutional as-applied, Range v. Attorney General.
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