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SCOTUS Update: Rahimi Amicus Brief Summary

  • Date:
  • June 14th, 2023

By: Gavin Barrett

Seven amicus briefs were filed in support of the federal government’s petition for certiorari in United States v. Rahimi, which presents the question of whether 922(g)(8)—the federal ban on those subject to certain domestic-violence restraining orders possessing firearms—is constitutional under the Second Amendment. We previously covered the Fifth Circuit’s decision in Rahimi here and here.  The main arguments offered in each amicus brief are summarized below.

Looking ahead, the Court will consider the government’s petition for certiorari in Rahimi at its final conference of the term on June 22 (with the associated Orders List released the following Monday, June 26). The Court has typically granted certiorari in 1-3 cases coming off the term’s final conference—for example, cert was granted in one case on June 27, 2022 and in two cases on June 28, 2021. Based on one scholarly assessment from 2015, the Court is more likely to grant in June than following its post-recess “Long Conference” in early September. With that said, the Court’s docket is discretionary and it is possible that the Court denies the petition, issues some kind of summary disposition rather than taking the case on the merits, or postpones consideration of Rahimi until September.

Brief of California Governor Gavin Newsom

According to Governor Newsom, the Fifth Circuit went beyond searching for a historical analogue, and instead demanded a historical twin. Newsom argues that this was especially detrimental in Rahimi because of the very late development of intrafamily violence laws in the United States, leaving a void where historical analogues would have been found. Because of this lack of historical domestic violence law, Governor Newsom contends that Rahimi requires the “more nuanced” analysis that applies when a societal concern is “unprecedented.”

Second, this brief argues it is imperative that the Court grant a writ of certiorari in order to protect domestic violence victims. Newsom claims that Rahimi puts lives in danger by jeopardizing the safety of a particularly vulnerable group and threatens the ability of state governments to enact and enforce reasonable firearm regulations. Finally, the brief reminds the Court that Bruen itself states that the decision is not intended to be a regulatory straight jacket.

Brief of Texas Advocacy Project

To begin, the Texas Advocacy Project argues that the Fifth Circuit ignored that the Bill of Rights and its predecessor—the English Declaration of Rights of 1689—are conditional in nature. The brief notes that, in the English Declaration of Rights, the right to bear arms was initially predicated on access to firearms that was “suitable to” one’s “Conditions . . . as allowed by Law.” Additionally, the Texas Advocacy Project contends that each of the historical analogues offered by the government at the appellate level should have been sufficient to uphold (g)(8). The brief argues that so-called dangerousness laws should have sufficed because, while views on what constitutes “dangerousness” have changed since these laws were enacted, they still affirm the general principle that the government has the right to disarm dangerous individuals. Next, the brief contends that the Fifth Circuit committed two errors when it dismissed “going armed to the public terror” and surety laws as historical analogues. First, the fact that Rahimi’s protective order was issued by a civil court is irrelevant because Rahimi committed a crime when he violated the civil order. Second, the Fifth Circuit was overly concerned with how frequently protective orders are issued in divorce proceedings—protective orders require a finding that domestic violence has occurred or is likely to occur (or both) in forty-six states, and many such orders are still not subject to § 922(g)(8).

Next, the brief claims that the Fifth Circuit improperly dispensed with the rule that facial constitutional challenges require the challenger to show that a law is unconstitutional in all applications. By doing so, the Fifth Circuit required the government to prove that the regulation was constitutional in all cases. And, according to the Texas Advocacy Project, the government was thus improperly forced to defend § 922(g)(8) against the hypothetical factual scenarios implicated by (g)(8)(C)(ii) in a case involving a (g)(8)(C)(i) charge, violating the case-and-controversy requirement of Article III. Finally, the brief argues that (g)(8)’s importance in saving lives cannot be overstated. More than two-thirds of shootings in Texas are in domestic violence settings and, according to the brief, prohibiting domestic abusers from possessing firearms helps remedy this problem.

Brief of Gun Violence and Domestic Violence Prevention Groups

The Gun Violence and Domestic Violence Prevention Groups’ brief argues that certiorari should be granted for two additional reasons not offered by the petitioners. First, the brief asserts that there is widespread uncertainty surrounding how Bruen should be applied by lower courts. The brief claims that the Fifth Circuit’s holding is evidence that there is a misunderstanding about how similar a historical analogue must be and when a court should use the “nuanced” approach for an “unprecedented societal concern.” Accordingly, the brief argues that the Supreme Court should correct the Fifth Circuit’s misapplication of both of these aspects of Bruen’s holding. Second, the brief contends that Rahimi endangers not just victims of domestic abuse, but the much larger population that could potentially be harmed by a dangerous individual with gun, further increasing the importance of upholding (g)(8). Finally, the brief observes that laws similar to (g)(8) have been adopted in a majority of states and, according to the brief, these laws have been very effective at reducing gun violence.

Brief of New York County Lawyers Association

First, the New York County Lawyers Association contends that Rahimi poses a threat to New York’s longstanding firearms licensing regime. The brief argues that this is especially relevant because New York recently passed a law allowing police officers to take temporary custody of a firearm when someone is arrested for or under suspicion of committing family violence. The brief asserts that the Fifth Circuit’s decision places many women in peril by casting doubt on the constitutionality of these provisions of New York law.

Additionally, like many of the other amici, the New York County Lawyers Association maintains that the Fifth Circuit asked for too much when judging the similarity of a historical analogue. The brief argues that there is a longstanding government tradition of disarming dangerous people, that both Heller and Bruen limit the Second Amendment right to “law-abiding, responsible citizens,” and that either fact is sufficient to uphold (g)(8).

Brief of Illinois et al.

The brief filed on behalf of Illinois, 22 other states, the District of Columbia, and the Northern Mariana Islands reminds the Court that the consequences of Rahimi are not limited to federal criminal law. Almost every state either requires or permits courts to impose limitations on the possession of firearms by those subject to a domestic violence restraining order. The brief contains an extensive survey of how various states have enacted and enforced provisions similar to § 922(g)(8) and argues that all of these laws are threatened by Rahimi. As a result, according to the states, the Fifth Circuit’s decision undercuts important laws and deprives domestic violence victims of crucial protections. 

Brief of Joshua Horwitz et al.

First, this brief argues that Rahimi warrants a cert grant because it raises significant questions surrounding provisions of federal law and creates a circuit split. The public-health researchers and lawyers who authored this brief argue that Rahimi not only holds (g)(8) unconstitutional, but also casts serious doubt on the constitutionality of (g)(9)—the federal ban on domestic violence misdemeanants possessing firearms. The brief contends that, due to Rahimi’s implications for other provisions of federal criminal law, the Supreme Court should consider the issue expeditiously. Additionally, the brief argues that Rahimi creates a circuit split—five circuit courts held (g)(8) constitutional before the Bruen holding, and the Third and Eighth Circuits did so in a way that is consistent with the Bruen analysis (by weighing historical support for (g)(8) when considering the Second Amendment’s textual scope).

Next, the brief argues that Rahimi is “profoundly wrong.” The brief asserts that, while many of the historical laws restricting “dangerous” persons are repugnant under modern standards, they nonetheless prove that this country has a historical tradition of disarming those considered dangerous. The brief also argues that surety laws should suffice as a historical analogue for (g)(8) because they had the effect of disarming individuals who posed a foreseeable risk of violence. Finally, the brief asserts that individuals prohibited from possessing guns under (g)(8) pose a particularly serious threat. The brief notes that a 2021 study showed that (g)(8) was associated with a 27% decrease in intimate partner homicide.

Brief of Tarrant County Criminal District Attorney

 This brief argues that Bruen and Heller hold only that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms for self-defense,” and that the Fifth Circuit erred in two ways in applying those holdings. First, the Tarrant County District Attorney contends that domestic abusers fall outside of “the people” protected by the Second Amendment because they are not “law abiding” or “responsible.” Second, the brief argues that domestic abusers use guns for harm and intimidation rather than self-defense, and that those uses are not protected by the Second Amendment.