Does 18 U.S.C. § 922(g)(8), which prohibits people under domestic-violence restraining orders from possessing firearms, violate the Second Amendment?
This case asks the Supreme Court to decide whether 18 U.S.C. 922(g)(8), which bans firearm possession for someone under a civil protective order due to domestic violence, violates the Second Amendment on its face. Petitioner United States argues that the ban does not violate the Second Amendment because the history and tradition of firearm regulations in the United States allow Congress to disarm individuals who are not law-abiding, responsible citizens, such as those subject to civil protective orders. In opposition, Respondent Zackey Rahimi contends that § 922(g)(8) violates the Second Amendment on its face because the Second Amendment protects the firearm rights of all United States citizens and § 922(g)(8) bears no resemblance to any firearm regulations in American history. The outcome of this case will affect the constitutionality of laws that address domestic violence, as well as how future gun regulations will be analyzed.
Questions as Framed for the Court by the Parties
Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
Between December 2020 and January 2021, Respondent Zackey Rahimi was involved in five shootings. United States v. Rahimi at 2. On December 1, Rahimi sold drugs to a buyer and, when the buyer talked badly about him, fired multiple shots into the buyer’s residence with an AR-15 rifle. Brief for Petitioner, United States at 3. The next day, Rahimi collided with a car and shot at the other driver. United States v. Rahimi at 2. He initially fled, then came back and fired more shots at the other driver’s car. Id. On December 22, a truck flashed its headlights at Rahimi when Rahimi sped past it on a highway; in response, Rahimi fired multiple shots at the other car. Brief for Petitioner at 3. On January 7, Rahimi fired several shots in the air after a failed attempt to pay with his friend’s credit card in a burger shop. Rahimi at 2. During this time, Rahimi was subject to a civil protective order entered by a Tarrant County district judge after his alleged assault of his ex-girlfriend. Id. at 3. The order expressly prohibited Rahimi from possessing a firearm. Id.
After identifying Rahimi as a suspect, Arlington police officers obtained a search warrant and searched Rahimi’s house, finding a .45-caliber pistol, a .308-caliber rifle, magazines, and ammunition. Brief for Petitioner at 3–4. Rahimi admitted that he possessed the firearms. Rahimi at 3.
Following these events, a federal grand jury in the United States District Court for the Northern District of Texas indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of 18 U.S.C. § 922(g)(8). Rahimi at 3. This federal statute disarms individuals found to pose a specific threat of domestic violence who are subject to a protective order. Id. To trigger the application of § 922(g)(8), several conditions must be met: (i) the court must have issued the order after notice and a hearing in which the person had an opportunity to participate, (ii) the order must prohibit the person from harassing, stalking, or threatening an “intimate partner” or a child, and (iii) the order must include a finding that the person poses a threat to the physical safety of the partner or child, or it must explicitly prohibit the person’s use of physical force against the partner or child. Brief for Petitioner at 4.
In the district court, Rahimi argued that §922(g)(8) was unconstitutional under the Second Amendment. Rahimi at 4. The district court ruled that his argument was invalid under a Fifth Circuit decision, United States v. McGinnis. Id. Rahimi acknowledged that McGinnis forecloses his case and pled guilty. Id. Rahimi appealed to the United States Court of Appeals for the Fifth Circuit and argued again that § 922(g)(8) was unconstitutional. Id. The Fifth Circuit affirmed the district court’s decision on June 8, 2022. Brief for Petitioner at 5. On June 23, 2022, however, the Supreme Court decided in the Second Amendment case N.Y. Rifle & Pistol Association, v. Bruen that there is a presumption of a Second Amendment protection and the government bears the burden of justifying regulations inconsistent with such protection. Id. at 5-6. In the wake of the new decision, the Fifth Circuit withdrew its June 8th opinion, ordered supplemental briefing, and heard oral argument before another panel. Id. at 5. In the new oral argument, Rahimi argued that §922(g)(8) was unconstitutional under Bruen. Id. On March 2, 2023, the Fifth Circuit accepted Rahimi’s argument and reversed the district court’s decision. Id. On June 30, 2023, the United States Supreme Court granted certiorari.
THE INTERPRETATION OF THE SECOND AMENDMENT
The United States argues that Congress may enact statutes disarming individuals who are not considered “law-abiding, responsible citizens” because Second Amendment protection is confined to “law-abiding, responsible citizens.” Brief for Petitioner United States at 11. The United States asserts that Supreme Court precedents have consistently described the right to keep and bear arms as “the rights of law-abiding citizens.” Id. The United States also points out that many legal doctrines, such as ones that determine “histories of a gun law” or “weapon’s dangerousness,” have been built on the assumption that the Second Amendment only applies to law-abiding citizens. Id. at 12. The United States argues that both facts reflect the Supreme Court’s understanding that the Second Amendment protection does not extend to people who are not law-abiding, responsible citizens. Id. at 13.
In contrast, Rahimi asserts that the Second Amendment protects all right-retaining U.S. citizens, not just those who belong to specific sub-categories. Brief for Respondent Rahimi at 9. He argues that, similar to other constitutional rights, the term “the people” in the Second Amendment was originally intended to encompass all citizens who hold civil and political rights such as the right to vote, hold office, own property, or testify in court. Id. Rahimi further argues that, since there is no textual indication in the Constitution to suggest that the Second Amendment right has a distinct meaning from other constitutional rights, the protection afforded by the Second Amendment should extend to all U.S. citizens, just as other rights are. Id. at 9.
HISTORY AND TRADITION OF US GUN REGULATION
The United States contends that the historical tradition in the country of Congress has disarmed individuals who do not fall under the definition of “law-abiding, responsible citizens.” Brief for Petitioner at 22. The United States provides examples from various historical periods in support. Id. These examples include the disarmament of untrustworthy individuals by pre-founding governments, early versions of the Second Amendment that permitted firearms only for peacekeeping citizens, and the understanding by scholars and officials that the Second Amendment right was reserved only for those who acted “peaceably.” Id. at 16–19. Id. at 21. According to the United States, these historical examples illustrate that the government can constitutionally disarm individuals who are not law-abiding and responsible. Id. at 22.
The United States thus formulates a principle for determining the responsibility of a citizen regarding firearm possession: a person is irresponsible if their possession of a firearm poses “a danger of harm to themselves or others.” Id. at 27. The United States argues that this principle aligns with American legal history. Id. at 28. For instance, the United States notes, Revolutionary War laws disarmed loyalists perceived as a danger due to their refusal to pledge allegiance to the Republic, and during the 1830s, Massachusetts required gun owners to post a surety, or bond, if their actions created fear of potential harm or injury. Id. at 22–24, 28.
The United States asserts that § 922(g)(8) complies with the Second Amendment because the statute only disarms individuals deemed “irresponsible.” Id. at 29. The United States asserts that those who fall under the purview of domestic-violence protective orders are “irresponsible” due to the potential danger they pose to others. Id. Consequently, the United States concludes that § 922(g)(8) is in harmony with the Second Amendment Id.
The United States also maintains that the Fifth Circuit applied the wrong standard of review in applying the Bruen analysis. Id. at 41. The United States argues that the Bruen analysis requires the government to find a “historical analogue” to § 922(g)(8), a statute imposing similar burdens imposed for similar reasons, not a “historical twin.” Id. at 41–42. According to the United States, historical laws imposed the same type of burden as § 922(g)(8) and disqualified individuals from possessing firearms for the same reason - their lack of responsibility or ability to be trusted with firearms. Id. at 42.
Rahimi, on the other hand, argues that the government fails to demonstrate that §922(g)(8) aligns with the historical tradition of firearm regulation. Brief for Respondent at 12. Rahimi contends that the pre-20th-century laws cited by the government are not similar to §922(g)(8) because these laws did not pertain to rights retained by citizens or the possession of firearms at home. Id. For instance, Rahimi maintains that laws targeting loyalists during the Revolutionary era were not limits on “people” under the Second Amendment because traitors do not hold political rights. Id. at 24. Rahimi adds that, unlike §922(g)(8), these laws offered a way to restore the fundamental right to armed self-defense by pledging loyalty to the new government. Id. at 25.
Furthermore, Rahimi counters that surety laws did not burden the right to keep arms at home for self-defense. Brief for Respondent at 29. These laws simply required an accused defendant to either prove that they had reasonable cause to fear an attack or post a bond. Id. Rahimi claims that late-19th-century laws, which restricted minors, not adults who retained political rights like Rahimi, are not suitable analogues for modern-day laws. Id. at 30. Moreover, Rahimi notes that these laws are too recent to provide insights into the original meaning of the Second Amendment, as are the 20th-century laws cited by the government. Id. Rahimi contends that laws enacted since the 20th century are irrelevant because they fall outside the attention of Bruen’s history test. Id.
Rahimi argues that the post-ratification comments and debates cited by the United States are taken out of context. Id. at 19. For instance, Rahimi notes that evidence from debates and discussions supports the conclusion that America rejected broad disarmament powers for legislatures. Id. at 40. Rahimi asserts that “hodgepodge” of the laws cited by the government fails to prove that there was a law in the U.S. tradition that completely banned or restricted rights-retaining citizen’s possession of firearms in the home. Id. at 19.
Thus, Rahimi argues, the United States fails to present a single tradition that is analogous to § 922(g)(8), failing to rebut the presumption that § 922(g)(8) is unconstitutional. Brief for Respondent at 12.
NARROW TAILORING AND RISK OF JUDICIAL ERROR
The United States argues that § 922(g)(8) is narrowly tailored so that its stringent requirements for protective orders limit the statute to violent domestic abusers and safeguard law-abiding, responsible citizens from being inadvertently disarmed. Brief for Petitioner at 32–33. For instance, the United States points out that protective orders trigger gun restriction only if procedural safeguards such as notice and opportunity to be heard are provided. Id. at 34. The United States also compares the principle forbidding disarming “law-abiding, responsible citizens” to other well-established Second Amendment doctrines. It argues that, like these doctrines, the principle sufficiently limits government power. Id. The United States maintains that adopting the “law-abiding” principle would not give Congress discretion to disarm any group it chooses, because history and tradition would only allow Congress to disarm criminals or individuals who are a danger to themselves or others without violating the Second Amendment. Id. at 37.
In contrast, Rahimi argues that narrow tailoring is irrelevant because fundamental rights under the Second Amendment cannot be balanced against other interests. Brief for Respondent at 45. He also asserts that § 922(g)(8) is not narrowly tailored because any abuse within an intimate partner relationship can trigger it, even when the accuser acknowledges the defendant has never been violent. Id. Rahimi also maintains that the statute’s procedural safeguards, such as notice and opportunity to be heard, may not be sufficient to protect gun rights because the government has the power to interpret these safeguards overly broadly. Id. at 46–47. Moreover, Rahimi claims that § 922(g)(8) lacks a limiting principle. Id. at 35. Rahimi argues § 922(g)(8) grants the government the unchecked power to label any group as “dangerous” because virtually anyone’s possession of a firearm carries some risk of harm. Id. Additionally, Rahimi states, the text of the statute does not provide tools to discern why orders are issued, and whether they are truly motivated by the dangerousness of the defendant. Id. at 48.
NATIONAL DOMESTIC VIOLENCE CONCERNS
In support of the United States, Prosecutor and Law Enforcement Associations (“Law Enforcement Associations”) argue that domestic abusers pose a significant threat to many individuals. Brief of Amici Curiae Prosecutor and Law Enforcement Associations, et al., in Support of Petitioner at 7. Law Enforcement Associates cite statistics that almost half of all homicides of women in the United States are caused by intimate partners and that two-thirds of intimate partner homicides are caused by firearms. Id. Law Enforcement Associations further argue that when domestic violence perpetrators own firearms, the risk of harm to other parties, including children, friends, bystanders, and police officers drastically increases. Id. at 9–10. Additionally, Texas Advocacy Project cites a study that shows restricting firearm access for the duration of a civil protective order results in 14% fewer firearm-related domestic violence homicides. Brief of Amici Curiae Texas Advocacy Project, et al., in Support of Petitioner at 27.
Professor William English and the Citizens Committee for the Right to Keep and Bear Arms (“English and CCRKBA”), in support of Rahimi, counter that guns save lives and that citizens who are falsely deprived of their Second Amendment rights are put in danger. Brief of Amici Curiae William English, Ph.D., and Citizens Committee for the Right to Keep and Bear Arms, in Support of Respondent at 4. They cite statistics that state 31.1% of firearm owners have successfully defended themselves or their property, which, they argue, equates to 1.67 million defensive gun uses per year. Id. Law Enforcement Groups and Firearms Rights Groups, also in support of Rahimi, assert that general criminal statutes already address assault, homicides, and other violent crimes, so § 922(g)(8) does not add to the existing scheme. Brief of Amici Curiae Law Enforcement Groups and Firearm Rights Groups, in Support of Respondent at 24.
THE CIVIL PROTECTIVE ORDER SYSTEM
In support of the United States, Law Enforcement Associations argue that civil protective orders are necessary for the criminal prosecution of domestic violence. Brief of Law Enforcement Associations at 22. They contend that civil protective orders provide timely protection against violence, can persuade victims to cooperate with prosecutors, and reduce the likelihood of intimidation during a trial. Id. at 23–27. Law Enforcement Associations also assert that civil protective orders are an appropriate basis for assessing dangerousness because the requirements for a civil protective order are rigorous. Id. at 17. They note that a civil protective order requires a showing of a real risk of violence, and that the perpetrator must receive due process. Id.
The California Rifle & Pistol Association and Gun Owners of California (“CRPA and GOC”), in support of Rahimi, counter that the civil protective order system can remove guns from innocent citizens. Brief of Amicus Curiae California Rifle & Pistol Association, Inc. and Gun Owners of California, in Support of Respondent at 19. They explain that civil protective orders influence decisions in divorce proceedings, such as child support, custody, and visitation, and incentivize people to abuse the system. Id. at 20. CRPA and GOC also argue that the civil protective order threshold for revoking Second Amendment rights is very low. Id. at 18. Specifically, they assert that the courts apply very broad definitions for “domestic violence,” enabling them to issue orders even in the absence of any violence-related accusations. Id. at 17–18. In addition, the Bronx Defenders Union and National Association of Criminal Defense Lawyers assert the lack of meaningful opportunities to contest a civil protective order. Brief of Amici Curiae The Bronx Defenders Union and National Association of Federal Defenders, in Support of Respondent at 6. The lack of opportunities, they argue, results in immediate deprivation of fundamental rights without recourse. Id.
INCONSISTENT APPLICATION OF THE RULES
California Governor Gavin Newsom (“Newsom”), in support of the United States, argues that ruling for Rahimi would hinder public officials’ efforts to address gun violence. Brief of Amicus Curiae California Governor Gavin Newsom, in Support of Petitioner at 17. He explains that the standard applied in Bruen does not provide enough guidance for officials trying to pass regulations. Id. Governor Newsom asserts that this may completely prevent officials from attempting to pass gun regulations because the officials cannot predict if the courts will allow their regulations. Id.
In support of Rahimi, Alameda County Public Defenders argue that the standard offered by the United States is unworkable. Brief of Amici Curiae Alameda County Public Defenders, et al., at 12. Specifically, they argue that the terms “law-abiding” and “responsible” do not have a specific or working definition. Id. at 14. This problem, they argue, would mean cases would be determined based on the sitting judge’s moral code instead of a uniform rule. Id. at 15. They assert that this subjective standard would undermine the objectivity of the American legal system. Id.
- Betsy Woodruff Swan, Supreme Court will decide whether domestic abusers can have guns, Politico (June 30, 2023).
- John Kruzel, US Supreme Court to Weigh Legality of Domestic-Violence Gun Curbs, Reuters (June 30, 2023).
- Marco Poggio, Justices Eye Intersection of Domestic Violence, Gun Rights, Law360 (July 7, 2023).