SCOTUS dropped its opinion on a case called US v Rahimi on 21 June (yesterday at the time writing).
The Background
Zachey Rahimi was involved in a domestic incident with his girlfriend/baby momma in December of 2019. A state court in Tarrant County, Texas, issued a restraining order against him. The order, entered with the consent of both parties, included a finding that Rahimi had committed “family violence.” It also found that this violence was “likely to occur again” and that Rahimi posed “a credible threat” to the “physical safety” of C. M. or A. R. (the minor child). Based on these findings, the order prohibited Rahimi from threatening C. M. or her family for two years or contacting C. M. during that period except to discuss A. R. It also suspended Rahimi’s gun license for two years.
Rahimi was involved in a spate of other shootings – including one where he fired at a bystander who witnessed an altercation with the girlfriend – and threatened another woman while subject to this order. Police executed a search warrant of Rahimi’s residence in connection with the shootings and found a pistol, a rifle, ammunition— and a copy of the restraining order.
Rahimi was then indicted under 18 U. S. C. §922(g)(8) — 922(g)(8) going forward –, a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm. Rahimi’s attorney moved to have the 922(g)(8) indictment quashed on the basis it was a facial 2A violation. Court rules prevented an interlocutory appeal, so he pleaded guilty and appealed to the 5th Circuit raising the same issues.
During the appeals process, SCOTUS issued its decision in Bruen. A new panel of the 5th Circuit ruled that 922(g)(8) as applied was unconstitutional. The Supreme Court granted Cert on 30 June 2023 and oral arguments were held on 7 November.
The Decision
The decision was 8-1 with Justice Thomas dissenting (I’ll get to Thomas’s dissent in a bit. I’m of the opinion he was the only one who got it correct). Chief Justice Roberts wrote the opinion, with all of the Justices filing concurrences. The meat of the decision is that the facial challenge of 922(g)(8) failed. From the filing (internal citations omitted):
Held: 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.
(a) Since the Founding, the Nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms. As applied to the facts here, Section 922(g)(8) fits within this tradition. The right to keep and bear arms is among the “fundamental rights
necessary to our system of ordered liberty.” McDonald v. Chicago. That right, however, “is not unlimited,” District of Columbia v. HellerThe reach of the Second Amendment is not limited only to those arms that were in existence at the
Founding. Heller. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just regulations identical to those existing in 1791.Under our precedent, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation’s regulatory tradition. Bruen. When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen. 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.” Why and how the
regulation burdens the right are central to this inquiry. As Bruen explained, a challenged regulation that does not precisely match its historical precursors “still may be analogous enough to pass constitutional muster.”(b) Section 922(g)(8) survives Rahimi’s challenge.
(1) Rahimi’s facial challenge to Section 922(g)(8) requires him to “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno. Here, Section 922(g)(8) is constitutional as applied to the facts of Rahimi’s own case. Rahimi has been found by a court to pose a credible threat to the physical safety of others, see §922(g)(8)(C)(i), and the Government offers ample evidence that the Second Amendment permits such individuals to be disarmed. . .
The Lone Dissent
Despite what you may be reading in the news, Justice Thomas does not want those subject to domestic violence restraining orders to have access to firearms. His dissent hangs on two points; due process and the complete lack of a historical analogue to 922(g)(8). We’ll look at the lack of analogue first.
In his majority opinion, C.J. Roberts takes great pains to equate the so-called peace bond or surety laws with 922(g). Thomas, correctly, notes that a peace bond does not disarm an individual charged with one. Instead it forces them to put up a sum of money as a guarantee of good behavior. From his dissent:
Although surety laws shared a common justification with §922(g)(8), surety laws imposed a materially different burden. Critically, a surety demand did not alter an individual’s right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime.
By contrast, §922(g)(8) strips an individual of his Second Amendment right. The statute’s breadth cannot be overstated. For one, §922(g) criminalizes nearly all conduct related to covered firearms and ammunition. Most fundamentally, possession is prohibited, except in the rarest of circumstances.
. . .
These sweeping prohibitions are criminally enforced. To violate the statute is a felony, punishable by up to 15 years. That felony conviction, in turn, triggers a permanent, life-long prohibition on exercising the Second Amendment right. See §922(g)(1).
The fact that many domestic violence restraining orders are not judicial findings of fact means 922(g)(6) violates individuals due process rights. As Thomas notes in his dissent (emphasis mine):
Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections. And, §922(g)(8) does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order.
In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders. See §922(g) (“It shall be unlawful for any [qualifying] person [to] possess in or affecting commerce, any firearm or ammunition”). There is no hearing or opportunity to be heard on the statute’s applicability, and a court need not decide whether a person should be disarmed under §922(g)(8). The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order.
Despite §922(g)(8)’s broad scope and lack of process, it carries strong penalties. Any violation of §922(g)(8) is a felony punishable by up to 15 years’ imprisonment. And, a conviction for violating §922(g)(8) itself triggers a permanent, life-long prohibition on possessing firearms and ammunition.
Thomas wraps up his dissent with this:
This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment. Assuming C. M.’s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts.
Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime. It cannot. The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence. The Government has not borne its burden to prove that §922(g)(8) is consistent with the Second Amendment’s text and historical understanding. The Framers and ratifying public understood “that the right to keep and bear arms was essential to the preservation of liberty.” Yet, in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more.
I respectfully dissent.
My Analysis
This case was always going to be difficult. On one hand, you have a truly bad dude, Zachey Rahimi, who should not have access to firearms. On the other, you have – at least in my and Justice Thomas’s opinion – an unconstitutional law, 922(g)(8).
In the specific case of Rahimi, the State had ample opportunity to indict, try and convict him of the offences underlying the RO. The convictions would have stripped him of his rights to own a gun. They did not.
If the State decides that someone shouldn’t be trusted with a gun, they probably shouldn’t be on the streets. There are plenty of laws that meet constitutional muster that can and are used to restrict legal access to firearms. 922(g)(8) is not one of them. The fact that under 922(g)(8) anyone subject to a restraining order is deprived of their rights without due process is ridiculous.