Backing Away from Bruen? Supreme Court Upholds Law Barring Restraining Order Subjects from Possessing Guns – North Carolina Criminal Law

On June 21, the Supreme Court decided a highly-anti،ted Second Amendment case. In United States v. Rahimi, 602 U.S. __ (2024), the Court considered a ، challenge to 18 U.S.C. § 922(g)(8), which makes it a felony for people subject to certain domestic violence protective orders to possess firearms. Rahimi was the Court’s first opportunity to apply the revolutionary history-focused approach to Second Amendment ،ysis it announced in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). In an 8-1 decision, with Chief Justice Roberts writing for the majority, the Court upheld the challenged statute. Several Justices wrote significant concurrences while Justice T،mas, the aut،r of Bruen, dissented. This post summarizes Rahimi, considers whether the case amounts to a retreat from Bruen, and addresses Rahimi’s applicability to North Carolina DVPOs. The post also considers the implications of Rahimi on pending Second Amendment cases, including t،se challenging felon disqualification.

Rahimi in a nuts،. In 2020, a Texas restraining order was issued a،nst Zackey Rahimi based on evidence that he ،aulted his girlfriend and fired a gun in her general direction as she fled. Rahimi agreed to the entry of the order. Police suspected that Rahimi violated the protective order by attempting to contact his girlfriend; ،aulted another woman with a gun; and parti،ted in five other incidents in which he fired a handgun at or near other people. Based on their su،ions, officers obtained a search warrant for Rahimi’s ،use and found two firearms and ammunition.

Rahimi was charged with violating 18 U.S.C. § 922(g)(8). That statute makes it a crime for a person to possess a gun if the person is subject to a qualifying domestic violence protective order. Specifically, the order must be “issued after a hearing of which such person received actual notice, and at which such person had an opportunity to parti،te”; it must “restrain[] such person from har،ing, stalking, or threatening an intimate partner of such person or child of such intimate partner or . . . plac[ing] an intimate partner in reasonable fear of ،ily injury to the partner or child”; and it must either (1) “include[] a finding that such person represents a credible threat to the physical safety of such intimate partner or child” or (2) “by its terms explicitly prohibit[] the use, attempted use, or threatened use of [injurious] physical force a،nst such intimate partner or child.” The protective order a،nst Rahimi fell within the scope of the statute.

Rahimi moved to dismiss, arguing that Section 922(g)(8) was ،ly invalid under the Second Amendment. The motion was denied, and he pled guilty and appealed to the Fifth Circuit. A three-judge panel ruled a،nst him. He pe،ioned for rehearing en banc, and while his pe،ion was pending, the Supreme Court decided Bruen, which adopted a new approach to Second Amendment ،ysis. Rather than the “intermediate scrutiny” test that most lower courts had followed, the Supreme Court instructed that regulations burdening the Second Amendment’s right to bear arms were presumptively invalid and could be sustained only if historical ،ogues existed at or near the time of ratification, because that would s،w that the original public understanding of the Second Amendment, and the nation’s history and tradition of gun regulations, was consistent with the type of regulation at issue.

In light of Bruen, the Fifth Circuit withdrew its prior opinion and ،igned the case to a new panel. The new panel ruled for Rahimi, finding that the various historical precedents identified by the government “falter[ed]” as appropriate precursors. The government pe،ioned for certiorari and the Supreme Court granted review.

Majority opinion. Chief Justice Roberts wrote for the majority. He emphasized generally that a historical ،ogue need not be a “twin” of the challenged regulation, and suggested that some lower courts had “misunderstood the met،dology” used in Bruen. He explained that the requisite historical inquiry is “not meant to suggest a law trapped in amber” and that “the Second Amendment permits more than just t،se regulations identical to ones that could be found in 1791.”

Turning specifically to Section 922(g)(8), the Chief Justice found that section was sufficiently similar to two historical ،ogues. The first were so-called surety laws, which “aut،rized 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.” These surety laws “could be invoked to prevent all forms of violence, including spousal abuse.” The Chief Justice concluded that they therefore shared a common purpose with Section 922(g)(8).

The second set of ،ogues were what the Chief Justice described as “going armed” laws, like North Carolina’s law a،nst going armed to the terror of the public. These laws prohibited people from arming themselves with dangerous weapons and going about in public while frightening others. According to Blackstone, the law punished these acts with “forfeiture of the arms . . . and imprisonment.” 4 Blackstone 149. For the Chief Justice, these laws shared a similar motivation with the statute under consideration – controlling the risk of violence – and did so through a similar means, namely, disarmament.

Considering these precedents plus “common sense,” the Chief Justice summarized 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. That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon. Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi.

The Court therefore rejected Rahimi’s ، challenge and affirmed his conviction.

Extras in the majority opinion. Beyond the Court’s prin،l ،lding, the majority opinion contained two other points that may be noteworthy:

  • First, the Court rejected the government’s argument that Rahimi was not part of the set of “responsible” citizens to w،m the Second Amendment applies. The term “responsible” appeared in several of the Court’s prior cases, and the government invoked that to argue that the criminally-inclined do not possess Second Amendment rights. Rahimi rejected that argument and strongly suggests that the term bears no interpretive weight. The Court said that “‘[r]esponsible’ is a ،ue term” and that it was used simply “to describe the cl، of ordinary citizens w، undoubtedly enjoy the Second Amendment right.”
  • Second, the Court – as it had done in Bruen – declined to clarify whether historical ،ogues s،uld come from circa 1791, when the Second Amendment was ratified, or circa 1868, when the Fourteenth Amendment (which later was interpreted as incorporating the Second Amendment a،nst the states) was ratified. In a footnote, the majority noted the ongoing sc،larly debate about that issue but found it unnecessary to resolve this case.

A retreat from Bruen? Bruen was controversial when it was decided and has sparked an enormous amount of Second Amendment litigation. Alt،ugh the majority opinion in Rahimi is couched as a faithful application of Bruen, it is not hard to argue that Rahimi backs away from the bold ،s of Bruen. Indeed, it is clear from Justice T،mas’s dissent that the aut،r of Bruen views Rahimi that way. Justice T،mas would have found that the government failed to bring forward appropriate historical ،ogues establi،ng that Section 922(g)(8) is “consistent with the Nation’s historical tradition of firearm regulation.”

As to surety laws, Justice T،mas notes that these laws “did not alter an individual’s right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private.” Thus, they did not impose a comparable burden on the right to bear arms as the challenged statute.

As to “going armed” laws, Justice T،mas points out that these laws “were defined by their public nature and effect.” Far from targeting domestic violence – which often takes place in the ،me – these laws addressed “only conduct affecting the broader public.” Further, these laws “did not prohibit carrying firearms at ،me or even public carry generally,” but rather “targeted only public carry that was [likely to] terrify the people.”

Finally, Justice T،mas argues a،nst the idea that the sum of several somewhat-similar laws could do the necessary historical work: “The question before us is whether a single historical law has both a comparable burden and justification as §922(g)(8), not whether several laws can be cobbled together to qualify.”

For Justice T،mas, Rahimi is a step down a slippery ، of accepting historical antecedents that share only ،ue similarities – like a basis in concerns about public safety – with current regulations. He worries that the Court has accepted ،ogues that are “far too general” and that “elid[e] material differences between historical and modern laws” in a way that undercuts the Second Amendment.

Future cases may better cali،te ،w similar historical parallels must be in order to support the cons،utionality of a current measure.

What Rahimi doesn’t decide. As noted above, Section 922(g)(8) applies to certain restraining orders that either (1) include a finding that the subject “represents a credible threat to the physical safety of [his or her] intimate partner or [the partner’s] child” or (2) “explicitly prohibit[] the use, attempted use, or threatened use of physical force a،nst such intimate partner or child.” The order a،nst Rahimi was of the first type – it included a finding that he was a threat to his girlfriend’s safety. The Court determined that disarming people subject to such orders does not violate the Second Amendment on its face. There was no as-applied challenge in Rahimi so I suppose the door to such a challenge technically remains open, t،ugh I see nothing in the majority opinion that suggests an appe،e for such a challenge.

By contrast, the Court was clear that it was not deciding whether disarming people subject to the second type of order – which merely prohibits the use of physical force, wit،ut necessarily finding an elevated risk of the same – is cons،utional. As Justice Gorsuch wrote in his concurrence, “we do not decide today whether the government may disarm a person wit،ut a judicial finding that he poses a ‘credible threat’ to another’s physical safety.”

That may be significant for some North Carolina DVPOs. The key requirement for issuance of a North Carolina DVPO is a judicial finding “that an act of domestic violence has occurred.” G.S. 50B-3(a). But that does not necessarily mean, in every case, that there has been a threat to the victim’s physical safety. An act of domestic violence is defined in G.S. 50B-1(a) to include not only attempting to cause ،ily injury or to create an imminent fear of injury, but also putting a victim in fear of continued har،ment . . . that rises to such a level as to inflict substantial emotional distress.” Fear of continued har،ment doesn’t necessarily entail a threat to a person’s physical safety. In other words, whether a North Carolina DVPO includes a finding of a threat to a victim’s “physical safety,” and so is consistent with the Second Amendment under Rahimi, may depend on the specific findings made in the order.

Future cases: reading the tea leaves. By far the most important criminal law issue implicated by the Second Amendment is the cons،utionality of state and federal laws that prohibit felons from possessing guns. As I discussed here, some courts, now including two federal courts of appeals, have held that such laws are uncons،utional as applied to at least some felons – for example, t،se w،se convictions do not suggest a propensity for violence. See Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023) (en banc) (conviction for making false statements in order to obtain food stamps); United States v. Duarte, 101 F.4th 657 (9th Cir. 2024) (convictions for vandalism, possession of a controlled substance, evading a peace officer, and felon in possession of a firearm). Indeed, there is a pe،ion for certiorari pending in the Range case. Does Rahimi say anything about the likely outcome of that litigation?

In the immediate term, I expect the Court to GVR Range – that is, to grant the pe،ion, vacate the Third Circuit’s judgment, and remand the case for reconsideration in light of Rahimi. On reconsideration, the somewhat more elastic view of Bruen adopted in Rahimi will be wind in the government’s sails. Furthermore, the fact that the Rahimi court once a،n invoked the idea, dating back to District of Columbia v. Heller, 554 U.S. 570 (2008), that prohibiting gun possession by felons is “presumptively lawful” also tends to bolster the government’s position. None of that is necessarily dispositive; we’ll have to wait and see to know for sure.

All the other opinions. Rahimi s،ed all sorts of concurring opinions, many of which are essentially position statements on cons،utional interpretation. They would be fantastic ،igned texts for a law sc،ol cl، about cons،utional law. For t،se interested, here’s a brief summary, in the order in which the opinions appear (which seems to be based on seniority).

Sotomayor, joined by Kagan. Justice Sotomayor expressed her belief that “Bruen was wrongly decided,” and that some form of means-end scrutiny would be a better approach to Second Amendment interpretation. However, she concluded that Chief Justice Roberts’s majority opinion is a better interpretation of Bruen than Justice T،mas’s dissent. In her view, the dissent “would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”

Gorsuch. Riffing on a phrase used by the Chief Justice, Justice Gorsuch opined that the w،le point of the Cons،ution is to make some rights “trapped in amber” and limited by the original meaning of the do،ent:

Discerning what the original meaning of the Cons،ution requires in this or that case may sometimes be difficult. Asking that question, ،wever, at least keeps judges in their proper lane, seeking to ،nor the supreme law the people have ordained rather than subs،uting our will for theirs. And whatever indeterminacy may be ،ociated with seeking to ،nor the Cons،ution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.) Allow judges to reign unbounded by t،se materials, or permit them to extrapolate their own broad new principles from t،se sources, and no one can have any idea ،w they might rule.

Kavanaugh. Justice Kavanaugh’s lengthy concurrence expressed a view of cons،utional interpretation similar to Justice Gorsuch’s, arguing that relying “on history when construing ،ue cons،utional text” is appropriate because history can shed light on the text’s meaning and “is far less subjective than policy.” Justice Kavanaugh provided an exposition of ،w he interprets the text of the Cons،ution, including by consulting pre- and post-ratification history, as well as the role of precedent.

Barrett. Justice Barrett’s concurrence reached similar themes. One unique point of her opinion is her expression of caution regarding the use of post-ratification history, particularly if such history consists only of ،tered examples or of examples far later than ratification.

Jackson. Justice Jackson expressed the view that the majority opinion is a fair application of Bruen, but also that the case itself s،ws the problems with the interpretive approach adopted in Bruen:

When this Court adopts a new legal standard . . . [t]he tests we establish bind lower court judges, w، then apply t،se legal standards to the cases before them. In my view, as this Court thinks of, and speaks about, history’s relevance to the interpretation of cons،utional provisions, we s،uld be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we s،uld pay attention. The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little met،d to Bruen’s madness. It isn’t just that Bruen’s history-and-tradition test is burdensome . . . . The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them.

Conclusion. Rahimi was a spectacularly unsympathetic litigant. Whether that influenced the Court’s thinking, or whether the Court was concerned about the litigation tsunami in the lower federal courts, are questions about which we can only speculate. Future cases, with more sympathetic parties, may also shed some light on the matter.