Rahimi Reversed: SCOTUS Seeks to Provide Guidance on the Bruen Quagmire
It did not take long after the Supreme Court’s decision in New York State Rifle & Pistol Ass'n Inc. v. Bruen, 597 U.S. 1 (2022) for the lower courts to struggle with implementing the Court’s new Second Amendment test in real life cases. In the two years since Bruen, district and appellate courts across the country have been decisively split on how the Bruen test affects the constitutionality of federal statutes prohibiting the possession of firearms.
Various courts have since held different subdivisions of 18 U.S.C. § 922(g) unconstitutional in as-applied or facial challenges. These cases include the prohibition of firearms by: convicted, felons, noncitizens, unlawful drug users; and individuals under restraining orders. The last category, which falls under 18 U.S.C. § 922(g)(8), was ruled unconstitutional by the United States Court of Appeals for the Fifth Circuit in United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). The Supreme Court granted certiorari in June last year, United States v. Rahimi, 143 S.Ct. 2688 (2023), and heard oral argument last November.
Rahimi in the Fifth Circuit
The Fifth Circuit had concluded that the prohibition of the possession of firearms by someone subject to a domestic violence restraining order was unconstitutional after applying the analysis set forth in Bruen. Under Bruen, “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Bruen, 597 U.S. at 17. In such instances, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. The Fifth Circuit held that Rahimi was among “the people” protected by the Second Amendment; thus, the burden shifted to the government to provide a historical analogue for the prohibition. Rahimi, 61 F.4th at 425–55.
The government offered three historical analogues to § 922(g)(8): “(1) English and American laws . . . providing for disarmament of ‘dangerous people,’ (2) English and American ‘going armed’ laws, and (3) colonial and early state surety laws.” Id. at 456. The Fifth Circuit rejected each category as not “relevantly similar” to § 922(g)(8). Id. In sum, the Fifth Circuit held that “[t]hrough the lens” of Bruen, § 922(g)(8) was unconstitutional and Rahimi’s conviction was vacated. Id. at 461.
Rahimi Reversed
Chief Justice Roberts, writing for the Court, disagreed with the Fifth Circuit’s historical analysis and held that the surety and going armed laws provided historical analogues to the prohibition under § 922(g)(8). United States v. Rahimi, 602 U.S. __, at 2–3 (2024). Conceding that these historic laws are by no means identical to the current statute, the Court found under Bruen, “prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent.” Id. at 3.
Against this backdrop, the Court held:
[W]e have no trouble concluding that Section 922(g)(8) survives Rahimi’s facial challenge. Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others. Section 922(g)(8) can be applied lawfully to Rahimi.
Id. at 4.
The Court determined that the Fifth Circuit made two errors in ruling in Rahimi’s favor. First, it read Bruen to require a “historical twin” instead of a “historical analogue.” Id. Second, the Court found the Fifth Circuit did not apply proper precedent governing facial challenges to the constitutionality of a statute. Id.
Notably, the Court rejected the government’s argument that Rahimi could be disarmed simply because he was not “responsible.” Id. at 5. The Court noted the ambiguity of the term “responsible” to describe a class of ordinary citizens with Second Amendment rights.
In conclusion, the Supreme Court made clear:
[W]e conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.
Id. Judgment of the Fifth Circuit was reversed and remanded for further proceedings.
Concurring Opinions of the Court
Justice Sotomayor, joined by Justice Kagan, wrote separately joining the Court’s opinion upholding 18 U.S.C. § 922(g)(8), but continuing to maintain that Bruen itself was wrongly decided. However, Justice Sotomayor believes that the decision in Rahimi “offers a more helpful model than the dissent for lower courts struggling to apply Bruen.”
Justice Gorsuch noted in his concurrence that “Our resolution of Mr. Rahimi’s facial challenge to §922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in ‘particular circumstances.’”
[T]he case before us does not pose the question whether the challenged statute is always lawfully applied, or whether other statutes might be permissible, but only whether this one has any lawful scope. Nor should future litigants and courts read any more into our decision than that.
Justice Kavanaugh spends the majority of his concurrence defending the use of history and traditions test to analyzing constitutional issues (without discussing this case until page 23 of his concurrence).
Justice Barrett expressed reservations in Bruen and other recent cases (including Rahimi) about the Court’s reliance on history and tradition. “[S]cattered cases or regulations pulled from history may have little bearing on the meaning of the text.” She further acknowledges that “Courts have struggled with this use of history in the wake of Bruen.” However, Justice Barrett finds that the Rahimi Court has essentially taken the Goldilocks approach and “settles on just the right level of generality[.]”
Justice Jackson’s concurrence disagrees with the methodology of the decision behind Bruen, and criticizes the Court’s lack of a workable test two years after the Bruen decision. “Today’s efforts to clear up misunderstandings is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.” [cleaned up]
Finally, Justice Thomas, the author of the majority opinion in Bruen, is the lone dissenter. Under Bruen’s framework, Justice Thomas would hold that 18 U.S.C. § 922(g)(8) has no historical regulation that justifies its prohibition and is therefore unconstitutional.
Future 18 U.S.C. § 922(g) Cases Post-Rahimi
No one can predict the future with certainty. While the Rahimi decision was no surprise for the legal community, many questions remain to be answered now that the Court has broadened its Bruen standard and weighed in on the constitutionality of one subsection of 922(g).
Notably, the Justices concur that the holding in this case is limited only to the conclusion that “[a]n individual found by a court to pose a credible threat to physical safety of another may be temporarily disarmed consistent with the Second Amendment.” As Justice Gorsuch points out, the opinion still leaves open the possibility of an as-applied constitutional challenge to § 922(g)(8) under different factual circumstances.
It is also worth noting that the various subsections of 922(g) differ substantially from one to another. While the rationale in Rahimi could be applied in future 922(g) cases, nothing is set in stone (except that 922(g)(8) is facially constitutional).
But there is another very important factor that came from Rahimi, the Court expressly rejected a popular argument advanced by the government in almost all 922(g)-Bruen cases: an individual cannot be disarmed because he is not “responsible.” The Court used this term in Heller and Bruen to describe a class of citizens who have a Second Amendment right. However, those decisions are not definite enough to deny Second Amendment protection based on the “responsibility” of a citizen.
Experienced Federal Criminal Defense Attorneys
The decision in Rahimi is sure to send shockwaves affecting many cases prosecuted under 18 U.S.C. § 922(g). It is essential to have experienced federal criminal defense attorneys who are up to date and experienced in these matters. If you or a loved one have a federal firearms case and are interested in speaking with a federal criminal defense attorney, call us at (303) 948-1489, or email us at info@newlandlegal.com.
