Rahimi and Applying the Second Amendment Bruen Standard

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A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In 2022, the Supreme Court addressed the proper standard for analyzing Second Amendment challenges to firearms regulations in New York State Rifle & Pistol Association v. Bruen concluding that the standard is rooted solely in text and history.1 The Court stated the test as follows:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.2

On June 21, 2024, in an 8-1 decision, the Supreme Court applied Bruen for the first time in United States v. Rahimi, holding that “[a]n 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.” 3

In Rahimi, a Texas state court granted a restraining order in a civil proceeding against Zackey Rahimi after finding that he had “committed family violence” and that such violence was “likely to occur again in the future.” 4 Among other things, the order prohibited Rahimi from possessing a firearm and suspended his handgun license.5 Later, the police located guns in Rahimi’s residence after he was identified as a suspect in a series of shootings and a grand jury indicted him for violating 18 United States Code, section 922(g)(8), which, among other things, prohibits persons subject to a domestic-violence restraining orders from possessing firearms.6 Rahimi filed a motion to have the charges dismissed on the grounds that 18 United States Code, section 922(g)(8) violated his Second Amendment rights.7 The District Court rejected Rahimi’s motion, citing Fifth Circuit precedent.8 Consequently, Rahimi pleaded guilty to violating 18 United States Code, section 922(g)(8) and was sentenced to 73 months of imprisonment and three years of supervised release.9 Rahimi appealed, among other things, the District Court’s decision that 18 United States Code, section 922(g)(8) did not violate the Second Amendment but “acknowledge[d] that it is foreclosed by [the Fifth Circuit’s] binding precedent.” 10 While the Fifth Circuit initially affirmed the District Court,11 after the Supreme Court’s Bruen decision, the Fifth Circuit withdrew its opinion12 and issued a new opinion reversing the District Court based on the intervening change of law caused by Bruen.13 In its new opinion, the Fifth Circuit found that none of the government’s proposed analogues fit within the nation’s historical tradition of firearm regulation. Accordingly, the Fifth Circuit concluded that 18 United States Code, section 922(g)(8) was unconstitutional.14 The government appealed to the Supreme Court on the grounds, among others, that the Fifth Circuit had misapplied Bruen by “treat[ing] even minor and immaterial distinctions between historical laws and their modern counterparts as a sufficient reason to find the modern laws unconstitutional.” 15

In Rahimi, the Court clarified how the Bruen standard was to be applied. Noting that “‘the right secured by the Second Amendment is not unlimited,’” 16 the Court observed that the Bruen analysis requires a challenged firearms regulation to be consistent with the Nation’s “regulatory tradition” and that the Bruen standard requires a “relevantly similar” 17 law rather than a “‘dead ringer’” or a “‘historical twin.’” 18 The Court observed that surety laws had been used to prevent spousal abuse at the common law19 as well as misuse of firearms.20 Looking at “going armed” laws, the Court noted that such laws were part of American jurisprudence21 and that in conjunction with the surety laws, they showed that individuals posing a danger of physical violence to another could be disarmed.22 In reaching its decision, the Court stressed that the Fifth Circuit had misapplied Bruen by reading it to require a historical twin rather than a historical analogue.23 The Court further noted that when statutes “brush up against” the Constitution, the court’s task “is to seek harmony, not to manufacture conflict.” 24

The Court’s decision prompted five concurring opinions and one dissent. Justice Sotomayor, joined by Justice Kagan, noted that she continued to “think that the means-end approach to Second Amendment anaylsis is the right one.” 25 Justice Gorsuch’s separate concurrence noted that the majority opinion “reinforces the focus on text, history, and tradition.” 26 Justice Kavanaugh authored a concurrence emphasizing that constitutional interpretation must take “account of text, pre-ratification and post-ratification history, and precedent.” 27 Justice Barrett authored a concurrence that stressed the challenge of applying legal principles derived from historical examples at the right level of generality.28 Justice Jackson concurred but wrote separately to express caution about the difficulty in applying the Bruen standard. Justice Thomas dissented, noting that Rahimi had never been accused or convicted of a crime.29

1: New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).
2: Id. at 17 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961).
3: United States v. Rahimi, No. 22-915, slip op. at 17 (U.S. June 21, 2024).
4: Petition for a Writ of Certiorari at 2, United States v. Rahimi, No. 22-915 (U.S. Mar. 17, 2023).
5: Id.
6: Id. at 3.
7: United States v. Rahimi, No. 4:21-cr-0083-P (N.D. Tex. 2021) (citing United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020)).
8: Id.
9: United States v. Rahimi, No. 21-11001 (5th Cir. June 8, 2022), withdrawn and superseded, 61 F.4th 443 (2023).
10: Id. at 2 and note 1.
11: Id.
12: United States v. Rahimi, No 21-11001 (5th Cir. July 7, 2022).
13: United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023).
14: Id. at 460 (internal quotations omitted).
15: Petition for a Writ of Certiorari at 16, United States v. Rahimi, No. 22-915 (U.S. Mar. 17, 2023).
16: Id. at 6 (quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008)).
17: Id. at 7. The Court further stated: “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. (quoting New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 29 & n.7 (2022)).
18: Id. at 8 (quoting Bruen, 597 U.S. at 30).
19: Id. at 11.
20: Id.
21: Id. at 12-13.
22: Id. at 13.
23: Id. at 16.
24: Id. (internal quotations omitted).
25: Id. at 6 (Sotomayor, J. concurring).
26: Id. at 7 (Gorsuch J. concurring).
27: Id. at 24 (Kavanaugh, J. concurring).
28: Id. at 4 (Barrett, J. concurring).
29: Id. at 32 (Thomas, J. dissenting).