In United States v. Rahimi, the central question before the Court is whether the government may restrict gun ownership for individuals subject to domestic violence protective orders under 18 U.S.C. § 922(g)(8). This is a critical Second Amendment challenge, marking the first significant test of the Second Amendment’s individual right to bear arms since the Court’s 2022 Bruen decision. 

Zackey Rahimi, having previously assaulted his then-girlfriend and fired shots at a witness to the altercation, became the subject of a civil protective order. The order barred him from threatening or approaching his ex-girlfriend, suspended his handgun license, and prohibited him from possessing firearms. Despite these restrictions, in the year and a half following the issuance of the protective order, Rahimi attempted to approach his ex-girlfriend multiple times. He was also involved in five shootings, including firing a gun in a neighborhood in the presence of children and firing multiple shots in a fast-food restaurant after it declined a friend’s credit card. Upon executing a search warrant of Rahimi’s home, law enforcement discovered and seized two guns.  A federal grand jury indicted Rahimi for violating Section 922(g)(8), which prohibits individuals subject to domestic violence protective orders from possessing firearms. 

Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) was unconstitutional under the Second Amendment. The district court denied the motion. Although the Fifth Circuit first affirmed the decision on appeal, it later withdrew its opinion and reversed after the Supreme Court’s decision in NYSRPA v. Bruen, 142 S. Ct. 2111 (2022). The Fifth Circuit held, in part, that Section 922(g)(8) violated the Second Amendment because, although the government was not required to proffer a “historical twin” to the present regulation, it had failed to establish a directly analogous historical context for such a law.

At argument, several Justices appeared inclined to uphold Section 922(g)(8), reverse the Fifth Circuit’s decision, and clarify Bruen in the process. The crux of the debate centered on whether a historical basis existed for restricting gun ownership rights of “persons” (excluding African slaves and Native Americans who were not considered citizens at the founding)  deemed “dangerous” by the government. Despite the inherent tension with the Second Amendment’s roots in overthrowing the founders’ British oppressors, the Solicitor General of the United States cited various historical precedents suggesting that the Second Amendment’s protection was envisioned to protect the gun ownership rights of only “law-abiding, responsible citizens,” as well as several historical examples of laws which restricted the sale or possession of firearms by those who committed a serious criminal offense, those below a certain age, those of “unsound mind,” and those who were apt to use firearms irresponsibly. 

The Solicitor General argued that given the historical tradition of disarming individuals considered dangerous, the lack of a domestic abuser-specific tradition of disarmament should not determine the constitutionality of Section 922(g)(8) under the Second Amendment. Instead, in response to a series of questions, she offered a methodological approach that, in the government’s view, would permit the Court to uphold the federal statute and Bruen at the same time: (1) history-and-tradition analysis should not be limited to analogous regulation and should consider a wholistic view of historical resources like relevant English practice, state constitutional precursors, treatises, commentary, and state law precedent; (2) to balance the shortcomings of retrospective analysis, historical evidence should be analyzed at a “level of generality” sufficient to address modern legislation resulting from federal and state legislative consensus (i.e., historical disarmament of persons considered “dangerous” to examine present-day laws that similarly dispossess demonstrably dangerous individuals from possessing firearms); and (3) dispositive weight should not be placed on the lack of identical or “dead ringer” regulation (i.e., a specific domestic violence ordinance restricting firearm possession in the 1700s).

Rahimi may be one of the most consequential cases of the Term. In addition to the federal law, 48 states and territories have laws that prohibit possession of a firearm by individuals subject to domestic violence protection orders. The Court’s decision — and the opportunity to clarify the methodology under Bruen — will have a seismic effect on gun regulation going forward. 

The case was argued on November 7, 2023. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information, please contact Chantel Febus, James Azadian, David Schenck, Theodore Seitz, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.