On February 2, a Fifth Circuit panel ruled in United States v. Rahimi, striking down the federal law prohibiting gun possession by anyone subject to a domestic violence restraining order issued after notice and a court hearing. A district judge in Texas previously held 18 U.S.C. § 922(g)(8) unconstitutional in November, in a decision we covered here, as did a district judge in Kentucky the same day that Rahimi was issued; at least one other district court has upheld the prohibition as “consistent with the longstanding and historical prohibition on the possession of firearms by felons.” The decision in Rahimi is currently the sole published circuit court opinion applying Bruen, after the Third Circuit’s panel decision in Range v. Attorney General, upholding the felon prohibitor, was vacated for rehearing en banc last month.
[NOTE: On March 2, the Fifth Circuit panel withdrew its prior opinion and filed a revised opinion, which reaches the same result regarding the constitutionality of 922(g)(8).]
A different Fifth Circuit panel initially rejected Rahimi’s challenge to 922(g)(8) in an unpublished per curiam decision issued on June 8, 2022, about two weeks before Bruen was decided. The earlier decision merely noted that the Second Amendment claim was foreclosed by binding Fifth Circuit precedent upholding 922(g)(8) under the hybrid test rejected by Bruen (Jake covered that decision in United States v. McGinnis here). After Bruen, the Fifth Circuit ordered that the prior panel decision be withdrawn, the parties filed additional briefs addressing the impact of Bruen, and the case was re-argued before a new panel.
The new decision was written by Judge Cory Wilson, who was appointed to the Fifth Circuit in 2020. Writing for a unanimous panel, Judge Wilson first summarized the facts. The defendant-appellant “was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after [his] alleged assault of his ex-girlfriend.” Rahimi proceeded to become “involved in five shootings in and around Arlington, Texas,” including multiple road-rage incidents in which he discharged a weapon. Police identified him as a suspect and searched his home, and he was charged with possessing weapons while subject to the protective order in violation of federal law.
The opinion next addressed the government’s argument that the Second Amendment only applies to “law abiding, responsible citizens.” The decision largely endorses Justice Barrett’s dissent in Kanter v. Barr, opining that the Second Amendment right extends initially to all members of the “political community” (quoting Heller) and that the references to “law-abiding,” “responsible,” and “ordinary” citizens in Heller and Bruen “do not add an implied gloss that constricts the Second Amendment’s reach.” Judge Wilson also noted that, as Justice Barrett has observed, “the deprivation [of a right normally] occurs because of state action.” Finally, the opinion asked whether “speeders” or “[p]olitical nonconformists” could be stripped of their Second Amendment rights entirely under a “law-abiding-only” theory.
The opinion then summarized and applied Bruen’s historical-tradition test. At the “plain text” step, Judge Wilson held that “possession of a pistol and a rifle easily falls within the purview of the Second Amendment.” Next, he turned to the central question of “whether § 922(g)(8) falls within th[e nation’s] historical tradition, or outside of it,” which requires an evaluation of whether proposed analogues imposed “comparable burdens” and were “comparatively justified,” when contrasted to the modern law. The decision considered, and rejected in turn, three potential categories of historical analogues offered by the government: “(1) English and American laws (and sundry unadopted proposals to modify the Second Amendment) providing for disarmament of ‘dangerous’ people, (2) English and American ‘going armed’ laws, and (3) colonial and early state surety laws.”
First, laws that disarmed those considered dangerous at the time were either too old (as with the English Militia Act of 1662), were primarily focused on preventing rebellions or maintaining the social order rather than ensuring public safety, “disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims,” or were minority proposals in state ratifying conventions that were ultimately not adopted. Second, the early colonial successors of the Statute of Northampton that criminalized “going armed to terrify the King’s subjects” (or some variation thereof) generally did not require guns to be forfeited as a penalty, were aimed only at “curbing terroristic or riotous behavior,” and disarmed individuals only after a full criminal (not civil) proceeding. Third, the opinion observed that surety statutes were “closer to being ‘relevantly similar’ to § 922(g)(8)” because they were similarly based on an individualized assessment of dangerousness and “required only a civil proceeding, not a criminal conviction.” However, Judge Wilson ultimately found that surety laws did not comparably burden the right to carry because they only required posting of a bond, and not gun forfeiture. Therefore, the panel struck down 922(g)(8) as unconstitutional, while observing that any consideration of the law’s “salutary policy goals” is now foreclosed by Bruen.
Judge James Ho wrote a separate concurrence in which he asserted that “the Second Amendment has too often been denigrated as ‘a second-class right’” and said he was “pleased to concur” in a decision that “dutifully follows the framework recently set forth in N.Y. State Rifle.” The thrust of the concurrence was, seemingly, to emphasize that existing criminal statutes (including laws that criminalize threatening behavior) are sufficient to address the potential use of guns in domestic violence, in Judge Ho’s view—this view could have major consequences for extreme risk protection, or “red flag,” laws, which are similarly issued after a civil, not a criminal, proceeding.
A major theme of both the decision and the concurrence seems to be the distinction between disarming someone based solely on a civil proceeding versus disarming convicted felons and misdemeanants and detaining dangerous criminals pre-trial. (The earlier district court decision in United States v. Quiroz, which Jake covered here, similarly emphasized that those under indictment can still vote, but convicted felons cannot). The panel opinion noted that “[t]he distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history,” and that 922(g)(8) disarms individuals “subject merely to civil process.” Judge Ho’s concurrence heavily implies that the U.S. never contravenes any constitutional right without criminal process: “when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime.”
But the Supreme Court has long held that states may utilize a “clear and convincing” standard for involuntary civil commitment proceedings. That’s a slightly higher evidentiary bar than the one used at Rahimi’s restraining order hearing (most likely, preponderance of the evidence), but the deprivation (commitment of the individual to an institution) is also certainly more severe. Consider also that those indicted for a criminal offense are often detained pre-trial based on a showing by “preponderance of the evidence” that they pose a flight risk. It’s clear that our nation has historically allowed significant restraints on even more basic rights without “the fundamental protections that our Constitution affords to those accused of a crime.”
The restraining order in Rahimi’s case was effective for two years from the date of issue, and it appears to be a permanent protective order—which are issued in Texas after notice and a hearing, and which require the family court to find that “(1) family violence has occurred; and (2) family violence is likely to occur in the future.” There may be legitimate concerns about ex parte temporary restraining orders, which normally use a lower evidentiary standard and, of course, are issued without prior notice to the accused; and some states do prohibit those subject to ex parte TROs from possessing firearms. A disgruntled fan infamously obtained such an order against David Letterman in 2005, despite having no evidence to support her allegations, although reliable empirical data on the use and misuse of ex parte TROs is elusive (for one perspective, see this 2014 law review article). But 922(g)(8) does not cover orders issued without notice and a hearing, and the family judge in Rahimi’s case conducted a hearing, weighed the evidence, and issued a restraining order for the maximum time permitted by state law without special additional factual findings.
I’m really not sure what to make of the panel’s choice to distinguish colonial-era “dangerousness” laws because those laws “disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims.” That’s certainly a difference between the potential historical analogue and 922(g)(8), but it’s hard to see why the difference should hold any legal significance. The panel’s approach here suggests that the federal government would be on more solid ground if took a less-tailored approach to the problem—then, the modern law would work in a similar way to the potential historical analogue. Say, for example, that domestic violence is most likely to occur among young, low-income people in densely-populated areas. If the federal government decided to prohibit all individuals below a certain age and income level who live in a densely-populated area from possessing a firearm, with the stated goal of reducing gun-involved domestic violence, under the analysis in Rahimi that law is seemingly more likely to survive a Second Amendment challenge post-Bruen than 922(g)(8). The “individualized” piece of 922(g)(8)—the fact that the law only disarms those individuals against whom a protective order is entered after notice and a civil hearing—makes the law constitutionally suspect, in the panel’s view, because it is non-analogous to historical laws that were less targeted.
I don’t think the panel actually intends to endorse a less-individualized approach to dealing with the problem along the lines described above. But it’s hard to read the decision in a way that doesn’t shackle modern legislators to historical regulatory choices nearly absolutely. If historical legislatures didn’t conceive of a certain regulation, a modern legislature can’t enact that regulation. And, if historical legislatures regulated in a way that, today, we accept sweeps far too broadly or was based on improper stereotypes, modern legislatures are also powerless to address similar problems in a more-tailored or individualized way. That would be a truly odd result. In this vein, Rahimi quotes extensively from Bruen but notably omits the majority’s observation that “cases implicating unprecedented societal concerns . . . may require a more nuanced approach,” and any discussion of whether modern concern for preventing domestic violence is “unprecedented” or what it means to conduct a “more nuanced” inquiry.
Finally, Bruen emphasized that may-issue licensing was on the books in only a small number of states—that fact clearly held some relevance for the majority, but how it actually factors into the analysis of Second Amendment claims going forward is unclear. It’s notable, however, that Justice Kavanaugh and Chief Justice Roberts—two key votes in the event that this case (or a similar challenge) goes up to the Supreme Court in the coming years—devoted substantial space in their Bruen concurrence to the following points: (1) that New York’s approach was an outlier in terms of the prevailing nationwide approach to concealed-carry licensing, and (2) that their decision to join the majority turned to some degree on the fact that New York gave “unchanneled discretion [to] licensing officials.” By one count, 28 states currently prohibit those subject to a domestic violence restraining order issued after notice and a hearing from possessing firearms, and another 15 states authorize such an individual to be disarmed if certain additional conditions are met. There’s clearly no discretion involved here—an individual either is, or is not, subject to a disqualifying order.