The Court’s decision in U.S. v. Rahimi empowers the government to limit the gun rights of violent people, but dodges questions about due process of law.
The Court’s decision in U.S. v. Rahimi empowers the government to limit the gun rights of violent people, but dodges questions about due process of law.
T he Supreme Court has spent the 16 years since District of Columbia v. Heller (2008) defining the rights protected by the Second Amendment: the individual nature of the right to keep and bear arms, its applicability to the states, what kind of guns are “arms,” and what it means to “bear” them in public. All along, the Court has observed that the government always had the power to keep arms out of the hands of certain dangerous people. Today, in United States v. Rahimi, the Court began defining who those dangerous people are, and how the government may prove they are dangerous.
The Court ruled 8–1, in an opinion by Chief Justice John Roberts, that “when a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may — consistent with the Second Amendment — be banned from possessing firearms while the order is in effect.” The Court thus found that the federal law criminalizing gun ownership by someone under a domestic-violence-protection order, 18 U. S. C. § 922(g)(8), had been constitutionally applied to the defendant in this case. Only Justice Clarence Thomas dissented, arguing that Section 922(g)(8) went further than Founding-era laws: “the Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence” without a criminal conviction. The case nonetheless spawned five separate concurring opinions filled with lively debates about how courts use history. And it brushed aside, at least for now, serious questions about whether the protective-order system provides adequate due process of law.
Bad Men and Due Process
The underlying facts in Rahimi were extreme. Zackey Rahimi, a drug dealer, fired his gun in public five times at five different people in the span of five weeks. He assaulted his girlfriend and fired his gun as she ran away. He violated an order of protection to stay away from her. He threatened a witness. He ended up getting arrested for using a gun to assault a different woman. The most Texas part of the saga is that one of the incidents involved Rahimi firing his gun in a line at Whataburger after a friend’s credit card was declined. It’s hard to imagine any American who thinks Rahimi should be walking the streets armed.
But what’s legally relevant isn’t the facts that came out later in the prosecution of Rahmi, but what sort of judicial process was used to impose the order of protection in the first place — because that’s the basis upon which his gun rights were restricted. Again, Rahimi presented an unsympathetic challenger, because he consented to the original court order and didn’t contest its findings of dangerousness. That limited Rahimi to claiming that Section 922(g)(8) was unconstitutional on its face (i.e., in all situations), rather than making a case that his particular rights were violated. It didn’t fly. As Roberts summarized, the law does provide some guarantees of due process:
A prosecution under Section922(g)(8) may proceed only if three criteria are met. First, the defendant must have received actual notice and an opportunity to be heard before the order was entered. Second, the order must prohibit the defendant from either “harassing, stalking, or threatening” his “intimate partner” or his or his partner’s child, or “engaging in other conduct that would place the partner in reasonable fear of bodily injury” to the partner or child. . . . Third . . . the order must either contain a finding that the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child, or “by its terms explicitly prohibit the use,” attempted use, or threatened use of “physical force” against those individuals.
Rahimi’s restraining order met all three criteria. First, Rahimi had received notice and an opportunity to be heard before the order was entered. Second, the order prohibited him from communicating with or threatening [his girlfriend] C. M. Third, the order met the requirements of Section 922(g)(8)(C)(i), because it included a finding that Rahimi represented “a credible threat to the physical safety” of C. M. or her family. [Citations and alterations omitted.]
One of the historical analogues cited by the majority was Founding-era “surety” laws (discussed below). As the Court noted:
These laws often offered the accused significant procedural protections. Before the accused could be compelled to post a bond for “going armed,” a complaint had to be made to a judge or justice of the peace by “any person having reasonable cause to fear” that the accused would do him harm or breach the peace. The magistrate would take evidence, and — if he determined that cause existed for the charge — summon the accused, who could respond to the allegations. Bonds could not be required for more than six months at a time, and an individual could obtain an exception if he needed his arms for self-defense or some other legitimate reason. [Citations and alterations omitted.]
The due-process question is less about Rahimi’s own case than about the protective-order system. Judge James Ho’s concurring opinion in the Fifth Circuit, for example, complained that restraining orders and findings of dangerousness are often “boilerplate” in family courts, and do not involve the kind of contested factfinding that we typically associate with depriving a citizen of his or her constitutional liberties. One court struck down New York’s red-flag law on the theory that it did not provide an adequate psychiatric evaluation requirement. But the Court found that “we need not address any due process concern here because this challenge was not litigated as a due process challenge.”
No Categorical Bans
Outside the context of people judicially found to be dangerous, the majority cautioned that “we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse” without a court finding. Roberts additionally rejected the government’s argument that people who are not “responsible” can be disarmed:
“Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In [prior cases], we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” [Citations omitted.]
Expect these passage to appear in challenges to other parts of Section 922(g), such as the ban on gun ownership by habitual drug users that was used to convict Hunter Biden. Justice Neil Gorsuch cautioned that there were many issues even in the application of Section 922(g)(8) that were not resolved in Rahimi because the Court was limited to ruling on the facts of Rahimi’s case.
Twins, Cousins, and Principles
Setting aside the due-process issues, on the question of what kinds of dangerousness can justify stripping a citizen of the right to bear arms if that dangerousness is properly proven in court, the big question was how to apply the test of New York State Rifle & Pistol Assn., Inc. v. Bruen, (2022), under which restrictions on the right to bear arms must be “consistent with the Nation’s historical tradition of firearm regulation.” Justice Thomas’s opinion in Bruen, a master class in originalist analysis, required the government to show that the restrictions it proposed were an analogue to something done historically – but stressed that such precedents need not be a “dead ringer” or a “historical twin.”
The dividing line in Rahimi was partly about how to phrase that standard, but more about how to apply it. Roberts complained that the Fifth Circuit, in ruling for Rahimi, “read Bruen to require a ‘historical twin’ rather than a ‘historical analogue.’” He added, “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”
The concurring opinions all took their own swings at the proper methodology and standard for interpreting the Second Amendment historical analogues. Justice Sonia Sotomayor’s concurrence argued that a “shared principle is sufficient.” Justice Ketanji Brown Jackson, criticizing the whole Bruen framework, asked, “How many analogues add up to a tradition?” Justice Amy Coney Barrett complained that Bruen’s test was too hard to apply as written (“Must the government produce a founding-era relative of the challenged regulation — if not a twin, a cousin?”) but emphasized that courts need to be rigorous in how they draw analogies:
Historical regulations reveal a principle, not a mold. . . . A court must be careful not to read a principle at such a high level of generality that it waters down the right. Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be. [Citations and alterations omitted.]
Gorsuch warned that “Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text.” Yet historical tradition, he cautioned, remained the only legitimate way for the courts to handle the collision between democratic lawmaking and constitutional rights. Justice Brett Kavanaugh added a lengthy disquisition on methods to warn that the Court’s frequent resort to “balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking,” and that the “tiers of scrutiny have no basis in the text or original meaning of the Constitution.” (Citation omitted.) The justices dodged the additional question of whether to look only at precedents from 1791 (when the Second Amendment was ratified) or also from 1868 (when the 14th Amendment, applying it to the states, was ratified).
Thomas, displeased that the Court was (in his view) misapplying his own opinion in Bruen, argued for a two-pronged inquiry:
When considering whether a modern regulation is consistent with historical regulations and thus overcomes the presumption against firearms restrictions, our precedents point toward at least two metrics of comparison: how and why the regulations burden a law-abiding citizen’s right to armed self-defense. A historical law must satisfy both considerations to serve as a comparator.
When a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. [Emphasis added; citations and alterations omitted.]
And yet, this is not very different from how the majority framed the Bruen inquiry:
Why and how the regulation burdens the right are central to this inquiry. For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding. [Emphasis added; citations omitted.]
The real clash between Thomas and the majority was in how this test was applied.
History and Tradition
Looking to history, Roberts identified two lines of historical legal restrictions that, in the majority’s view, provide an analogue to both why and how courts today could strip the right to bear arms from someone under an order of protection, on the principle that, “when an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed” after that threat is “found by a court.”
One analogue was surety laws under which “the law authorized magistrates to require individuals suspected of future misbehavior to post a bond” or be jailed. Roberts cited Blackstone to show that surety laws could be invoked by wives against violent husbands, and cited laws that applied surety rules to those who threatened the peace with weapons.
The majority’s other, less persuasive analogue is affray laws, which punished people for having used arms in public to terrify others. That seems a poor comparison to the typical domestic abuser, although it’s much more comparable to Rahimi’s particular track record of public trigger-happiness. There’s no constitutional right to shoot at Whataburger.
Thomas took particular exception to the analogy of surety laws, arguing that they used different means than Section 922(g)(8) because they didn’t preemptively disarm anyone; they just put their rights on a kind of probation by demanding that they post a bond if they were found to be dangerous. By contrast, “affray laws were criminal statutes that penalized past behavior, whereas §922(g)(8) is triggered by a civil restraining order that seeks to prevent future behavior. Accordingly, an affray’s burden was vastly harder to impose. To imprison a person, a State had to prove that he committed the crime of affray beyond a reasonable doubt.” As a result, “the Court’s argument requires combining aspects of surety and affray laws to justify §922(g)(8). This piecemeal approach is not what the Second Amendment or our precedents countenance. . . . The Court’s . . . approach of mixing and matching historical laws — relying on one law’s burden and another law’s justification — defeats the purpose of a historical inquiry altogether.”
There’s a fair dispute here; this was a close case. I’m inclined to think the majority was right that the Founders saw dangerousness as the touchstone of the limits on the right to bear arms, and that the Founding-era precedent of the surety laws is close enough to show that a civil process for finding dangerousness can be used to restrict the right to bear arms — although, as Gorsuch observed, that leaves open not only the due-process questions but also the duration of those orders.
Thomas closed with a reminder of what our system really gets wrong about domestic violence, which is why we are often stuck with half measures and patchwork fixes in coping with the wife-beaters who walk amongst us:
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.
Until we start treating domestic violence as a real crime, we’re going to keep having these arguments.