Second Amendment Back at Supreme Court in 2023


The U.S. Supreme Court recently heard oral arguments in its first significant Second Amendment case in two years. The case, United States v. Rahimi, will decide whether a federal law banning the possession of guns by individuals who are subject to domestic violence restraining orders is constitutional. 

Facts of the Case

Between December 2020 and January 2021, Zackey Rahimi was involved in five shootings in and around Arlington, Texas. Officers in the Arlington Police Department eventually identified Rahimi as a suspect in the shootings and obtained a warrant to search his home.

Officers executed the warrant and found a rifle and a pistol. Rahimi admitted that he possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5, 2020, by a Tarrant County state district court after Rahimi’s alleged assault of his ex-girlfriend. The protective order prohibited Rahimi from “[c]ommitting family violence,” “[g]oing to or within 200 yards of the residence or place of employment” of his ex-girlfriend, and “[e]ngaging in conduct . . . including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” either his ex-girlfriend or a member of her family or household. The order also expressly prohibited Rahimi from possessing a firearm.

A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of 18 U.S.C. § 922(g)(8), which provides:

It shall be unlawful for any person[ ] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury…to…possess in or affecting commerce, any firearm or ammunition…

Rahimi moved to dismiss the indictment on the ground that § 922(g)(8)is unconstitutional.

Fifth Circuit’s Decision

The Fifth Circuit initially upheld the conviction, and Rahimi filed a petition for rehearing en banc. While that petition was pending, the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen, which held that “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” The Court further held that the Government bears the burden of “justify[ing] its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

In light of Bruen, the appeals court reversed course and issued a new opinion. “The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the appeals court wrote. “The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, it is not.”

In support of its decision, the Fifth Circuit emphasized that 18 U.S.C. § 922(g)(8) disarms individuals based on civil protective orders, rather than criminal proceedings, for which there is no analogous historical traditionunder Bruen. While the government cited colonial and early state laws disarming categories of individuals legislatures “considered to be dangerous,” the Fifth Circuit distinguished those laws from the statute at issue.

Issues Before the Supreme Court

On appeal, the Government argues that the Fifth Circuit decision threatens the safety of domestic violence victims. In support, it cites that “[g]overnments have long disarmed individuals who pose a threat to the safety of others,” and that the law “falls comfortably within that tradition.”Meanwhile, Rahimi argues that the Fifth Circuit’s decision should be allowed to stand, characterizing it as a “faithful application ofBruen.”

The justices have agreed to decide the following question: “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.”


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