Summary: Firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others. The Supreme Court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, they may be temporarily disarmed consistent with the Second Amendment. Section 922(g)(8) was found to survive a challenge as it aligns with the historical tradition of firearm regulation. The law restricts gun use to check demonstrated threats of physical violence, similar to founding-era regimes. The court’s decisions in Heller and Bruen do not prohibit such regulations. The Fifth Circuit erred in its reading of historical precedence and evaluating the facial challenge.
Firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.
When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.
Second Amendment and Threat-Based Firearm Regulation
SUPREME COURT OF THE UNITED STATES
UNITED STATES v. RAHIMI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 22–915. Argued November 7, 2023
Decided June 21, 2024
Respondent Zackey Rahimi was indicted under 18 U. S. C. §922(g)(8), a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm. A prosecution under Section 922(g)(8) may proceed only if the restraining order meets certain statutory criteria. In particular, 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, §922(g)(8)(C)(i), or “by its terms explicitly prohibit the use,” attempted use, or threatened use of “physical force” against those individuals, §922(g)(8)(C)(ii).
Rahimi concedes here that the restraining order against him satisfies the statutory criteria, but argues that on its face Section 922(g)(8) violates the Second Amendment. The District Court denied Rahimi’s motion to dismiss the indictment on Second Amendment grounds. While Rahimi’s case was on appeal, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022). In light of Bruen, the Fifth Circuit reversed, concluding that the Government had not shown that Section 922(g)(8) “fits within our Nation’s historical tradition of firearm regulation.” 61 F. 4th 443, 460 (CA5 2023).
Held: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.
(a) Since the Founding, the Nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms. As applied to the facts here, Section 922(g)(8) fits within this tradition.
The right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778. That right, however, “is not unlimited,” District of Columbia v. Heller, 554 U. S. 570, 626. The reach of the Second Amendment is not limited only to those arms that were in existence at the Founding. Heller, 554 U. S., at 582. Rather, it “extends, prima facie,
to all instruments that constitute bearable arms, even those that were not yet in existence.” Ibid. By that same logic, the Second Amendment permits more than just regulations identical to those existing in
1791.
Under our precedent, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation’s regulatory tradition. Bruen, 597 U. S., at
26–31. When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation’s historical tradition of firearm regulation.”
Bruen, 597 U. S., at 24. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “applying faithfully the balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. Why and how the regulation burdens the right are central to this inquiry. As Bruen explained, a challenged regulation that does not precisely match its historical precursors “still may be analogous enough to pass constitutional muster.” Id., at 30.
(b) Section 922(g)(8) survives Rahimi’s challenge.
(1) Rahimi’s facial challenge to Section 922(g)(8) requires him to “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745. Here, Section 922(g)(8) is constitutional as applied to the facts of Rahimi’s own case. Rahimi has been found by a court to pose a credible threat to the physical safety of others, see §922(g)(8)(C)(i), and the Government offers ample evidence that the Second Amendment permits such individuals to be disarmed.
(2) The Court reviewed the history of American gun laws extensively in Heller and Bruen. At common law people were barred from misusing weapons to harm or menace others. Such conduct was often addressed through ordinary criminal laws and civil actions, such as prohibitions on fighting or private suits against individuals who threatened others. By the 1700s and early 1800s, though, two distinct
legal regimes had developed that specifically addressed firearms violence: the surety laws and the “going armed” laws. Surety laws were a form of “preventive justice,”. W. Blackstone, Commentaries on the
Laws of England 251 (10th ed. 1787), which authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed. If the individual did post a bond and then broke the peace, the bond would be forfeit.
Surety laws could be invoked to prevent all forms of violence, including spousal abuse, and also targeted the misuse of firearms. These laws often offered the accused significant procedural protections.
The “going armed” laws—a particular subset of the ancient common law prohibition on affrays, or fighting in public—provided a mechanism for punishing those who had menaced others with firearms. Under these laws, individuals were prohibited from “riding or going armed, with dangerous or unusual weapons, [to] terrify the good people of the land.” 4 Blackstone 149. Those who did so faced forfeiture
of their arms and imprisonment. Prohibitions on going armed were incorporated into American jurisprudence through the common law, and some States expressly codified them.
(3) 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.
Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be. Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another. This prohibition is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right. Id., at 29. Section 922(g)(8) restricts gun use to check 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 that Section 922(g)(8) imposes on the right to bear arms also fits within the Nation’s regulatory tradition. While the Court does 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.
U. S., at 626, Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another, §922(g)(8)(C)(i), which notably matches the similar judicial determinations required in the surety and going armed laws. Moreover, like surety bonds of limited duration, Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order. Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.
The Court’s decisions in Heller and Bruen do not help Rahimi. While Section 922(g)(8) bars individuals possessing guns in the home, Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home. Indeed, Heller stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.” Heller, 554 U. S., at 626, 627, n. 26. And the Court’s conclusion in Bruen that regulations like the surety laws are not a proper historical analogue for a broad gun licensing regime does not mean that they cannot be an appropriate analogue for a narrow one.
(4) The Fifth Circuit erred in reading Bruen to require a “historical twin” rather than a “historical analogue.” 597 U. S., at 30. The panel also misapplied the Court’s precedents when evaluating Rahimi’s facial challenge. Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where the provision might
raise constitutional concerns.
(5) Finally, the Court rejects the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” The Court used this term in Heller and Bruen to describe the class of citizens who undoubtedly enjoy the Second Amendment right. Those decisions, however, did not define the term and said nothing about the status of citizens who were not “responsible.”
