Restriction of Firearm Possession in the Post-Bruen Era

Facts of the Case

In December 2019, Zackey Rahimi fought with his girlfriend, C.M., in a parking lot. C.M. tried to flee, but Mr. Rahimi grabbed her arm and dragged her to the car. He noticed a bystander observing the scene and went to retrieve a gun from the car, during which time C.M. escaped. Mr. Rahimi fired the gun as she ran, although it was “unclear whether he was aiming at C.M. or the witness” (Rahimi, p 685). In February 2020, a Texas state court granted C.M. a protective order against Mr. Rahimi, finding that he “posed a credible threat” to C.M.’s “physical safety.” This order forbade him from communicating with C.M. and suspended his gun license for two years (Rahimi, p 681).

Mr. Rahimi violated the order’s terms numerous times in the following months. He approached C.M.’s home in the middle of the night and was arrested, and he was involved “in at least five additional shootings” between December 2020 and January 2021 (Rahimi, p 685). After identifying him as a suspect in the shootings, police searched Mr. Rahimi’s house and discovered “a pistol, a rifle, ammunition, and a copy of the restraining order” (Rahimi, p 686). Mr. Rahimi was then indicted under 18. U.S.C § 922(g)(8), which prohibits an individual subject to civil restraining orders from possessing firearms or ammunition if the restraining order meets certain statutory criteria. One of these pertains to an individual who represents a threat to the physical safety of an intimate partner or child.

Mr. Rahimi moved to dismiss the indictment, arguing that § 922(g)(8) violated his Second Amendment rights. The district court denied his motion. While the case was on appeal, the U.S. Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), ruling that regulations impinging on the right to bear arms must be embedded in this country’s “historical tradition.” Considering Bruen, the Fifth Circuit Court of Appeals reversed the lower court’s decision, determining that Mr. Rahimi was entitled to his Second Amendment rights. The U.S. Supreme Court granted a writ of certiorari.

Ruling and Reasoning

The U.S. Supreme Court reversed the Fifth Circuit’s decision in an 8-1 majority. Chief Justice John Roberts delivered the opinion, centering the analysis on the constitutionality of § 922(g)(8). Although the Bruen decision directed lower courts to consider the historical traditional of firearm regulation in “delineat[ing] the contours” of Second Amendment rights, he wrote, the methodology applied in Bruen was “not meant to suggest a law trapped in amber” (Rahimi, p 689–690). The Court said that “a modern regulation must comport with the principles underlying the Second Amendment…but it need not be a dead ringer or a historical twin” (Rahimi, p 691).

The U.S. Supreme Court identified regulations from the 1700s and early 1800s as historical analogs to § 922(g)(8). The first category of regulations, surety laws, allowed magistrates to collect bonds from people who were deemed to pose high risk for future misconduct. These laws served as a form of “preventive justice.” One who failed to post a bond would be jailed. If he posted the bond, but subsequently “broke the peace,” he would be forced to surrender the money (Rahimi, p 694). The surety laws were used to “prevent all forms of violence, including spousal abuse,” and they also “targeted the misuse of firearms” (Rahimi, p 694). Like § 922(g)(8), the surety laws not only offered “significant procedural protections” to the accused, but they were also time limited (Rahimi, p 695). According to these laws, before a person could be forced to post 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” (Rahimi, p 695, citing Mass. Gen. Laws ch. 134, §§ 1, 16 (2012)). If a magistrate reviewing the evidence deemed it sufficient to warrant the charge, the accused would be invited to respond to the indictments. Bonds could not be demanded for greater than six months at a time.

Although the American surety laws of previous centuries attempted to prevent violence, a second category of historical regulations, the “going armed” laws, were enacted to penalize those who threatened others with firearms. Going armed laws forbade “riding or going armed with dangerous or unusual weapons to terrify the good people of the land,” and they punished those who violated this prohibition with “forfeiture of the arms…and imprisonment” (Rahimi, p 696, citing from W. Blackstone, Commentaries on the Laws of England (10^th ed. 1787), p 149).

When “taken together, the surety and going armed laws confirm what common sense suggests: when an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed” (Rahimi, p 696). Accordingly, § 922(g)(8), “fits within our regulatory tradition” (Rahimi, p 697). The Court ruled that the tradition of firearm regulation does indeed permit the government to disarm individuals who present a credible threat to the safety of others.