U.S. Supreme Court Upholds Law Disarming Persons Subject To Domestic Violence Restraining Orders

An individual may be “temporarily disarmed consistent with the Second Amendment” when a court determines that he or she poses “a credible threat to the physical safety of another,” the U.S. Supreme Court has ruled in an 8-1 decision. 

The defendant in United States v Rahimi (602 U.S. ____ (2024); Docket No. 22-915) had assaulted his girlfriend in 2019 and threatened to shoot her if she told anyone. A Texas court issued a domestic violence restraining order against him. As a result, the defendant’s handgun license was suspended. He was also prevented from possessing a firearm pursuant to 18 U.S.C. §922(g)(8), which prohibits an individual subject to a domestic violence restraining order from possessing a firearm if the order finds that the individual “represents a credible threat to the physical safety of [an] intimate partner” or a child of the partner or individual.

The defendant appealed that decision, claiming 18 U.S.C. §922(g)(8) violated his Second Amendment right to keep and bear arms. The case ended up before the 5th U.S. Circuit Court of Appeals and, in light of the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Ass’n v Bruen, 597 U.S. ____ (2022), the federal appeals court vacated the defendant’s conviction. In Bruen, the U.S. Supreme Court ruled unconstitutional a New York law that made it illegal to publicly carry a firearm without first demonstrating a special need for protection.

The 5th Circuit decision was appealed to the U.S. Supreme Court, which agreed to hear the case.

In an opinion written by Chief Justice John Roberts, the U.S. Supreme Court upheld the constitutionality of 18 U.S.C. §922(g)(8). “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” the Chief Justice wrote. “As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”

Justice Samuel Alito, Justice Sonia Sotomayor, Justice Elena Kagan, Justice Neil Gorsuch, Justice Brett Kavanaugh, Justice Amy Coney Barrett and Justice Ketanji Brown Jackson joined Chief Justice Roberts’ opinion. Justice Sotomayor also issued a separate concurring opinion, joined by Justice Kagan. Justice Gorsuch, Justice Kavanaugh, Justice Barrett and Justice Jackson all filed concurring opinions. Justice Clarence Thomas dissented.

Not An Unlimited Right

In his analysis, Chief Justice Roberts emphasized, “Like most rights, … the right secured by the Second Amendment is not unlimited.” 

Citing case precedent, including the Second Amendment decisions in Bruen and District of Columbia v Heller, 554 U.S. 570 (2008), Chief Justice Roberts explained that “some courts have misunderstood the methodology of our recent Second Amendment cases.” He said that case precedents were “not meant to suggest a law trapped in amber.”

As explained in Bruen, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” the Chief Justice said. “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”

Central to this inquiry, Chief Justice Roberts observed, is “[w]hy and how the regulation burdens the right.” He noted the law “must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’”

With these principles in mind, “we conclude that Section 922(g)(8) survives [the defendant’s] challenge,” the Chief Justice said, noting the defendant had challenged 18 U.S.C. §922(g)(8) “on its face.” This type of challenge meant that, to prevail, “the Government need only demonstrate that Section 922(g)(8) is constitutional in some of its applications. And here the provision is constitutional as applied to the facts of [the defendant’s] own case.”

According to Chief Justice Roberts, 18 U.S.C. §922(g)(8) provides “two independent bases” for liability. “Section 922(g)(8)(C)(i) bars an individual from possessing a firearm if his restraining order includes a finding that he poses ‘a credible threat to the physical safety’ of a protected person,” he wrote. “Separately, Section 922(g)(8)(C)(ii) bars an individual from possessing a firearm if his restraining order ‘prohibits the use, attempted use, or threatened use of physical force.’”

In this case, “[o]ur analysis starts and stops with Section 922(g)(8)(C)(i) because the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others,” the Chief Justice stated. “We need not decide whether regulation under Section 922(g)(8)(C)(ii) is also permissible.”

Chief Justice Roberts further explained that the U.S. Supreme Court previously reviewed “extensively” the history of gun laws in both Heller and Bruen. “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,” he wrote. “Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be. … Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent. Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found to threaten the physical safety of another. This provision is ‘relevantly similar’ to those founding era regimes in both why and how it burdens the Second Amendment right.”

The Chief Justice continued, “Section 922(g)(8) restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally. The burden Section 922(g)(8) imposes on the right to bear arms also fits within our regulatory tradition. While 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, … we note that Section 922(g)(8) applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.”

Finally, “the penalty – another relevant aspect of the burden – also fits within the regulatory tradition,” Chief Justice Roberts said. “In short, we have no trouble concluding that Section 922(g)(8) survives [the defendant’s] facial challenge. Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others. Section 922(g)(8) can be applied lawfully to [the defendant].”

Concurrences & Dissent

In her separate concurring opinion joined by Justice Kagan, Justice Sotomayor emphasized that while she “continue[s] to believe that Bruen was wrongly decided,” she still “joined the Court’s opinion applying that precedent to uphold” 18 U.S.C. §922(g)(8). “Although I continue to think that the means-end approach to Second Amendment analysis is the right one, neither party asks the Court to reconsider Bruen at this time, and that question would of course involve other considerations than whether Bruen was rightly decided,” she wrote. “Whether considered under Bruen or under means-end scrutiny, §922(g)(8) clears the constitutional bar. I join in full the Court’s opinion, which offers a more helpful model than the dissent for lower courts struggling to apply Bruen.”

Justice Gorsuch, in his concurrence, said: “Among all the opinions issued in this case, its central messages should not be lost. The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen. …  And after carefully consulting those materials, the Court ‘conclude[s] only this’: ‘An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.’ … (emphasis added). With these observations, I am pleased to concur.”

Justice Kavanaugh said in his concurring opinion that, “in justiciable cases,” the Court “determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution.” When performing this duty, “the Court does not implement its own policy judgments about, for example, free speech or gun regulation,” he observed. “Rather, the Court interprets and applies the Constitution by examining text, pre-ratification and post-ratification history, and precedent. The Court’s opinion today does just that, and I join it in full.”

In her concurrence, Justice Barrett stated: “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. Here, though, the Court settles on just the right level of generality: ‘Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.’ … Section 922(g)(8)(C)(i) fits well within that principle; therefore, Rahimi’s facial challenge fails. Harder level-of-generality problems can await another day.”

Justice Jackson said in her concurring opinion that, while she concurred in the decision applying Bruen, “in my view, the Court should also be mindful of how its legal standards are actually playing out in real life. We must remember that legislatures, seeking to implement meaningful reform for their constituents while simultaneously respecting the Second Amendment, are hobbled without a clear, workable test for assessing the constitutionality of their proposals. … And courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. The public, too, deserves clarity when this Court interprets our Constitution.”

In his lone dissenting opinion, Justice Thomas wrote: “This case is not about whether States can disarm people who threaten others. 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 [the victim’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. It cannot. The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence. The Government has not borne its burden to prove that §922(g)(8) is consistent with the Second Amendment’s text and historical understanding.”