Rahimi and the Original Scope of the Commerce Clause
The amicus briefs filed in support of Rahimi at the Supreme Court include a wide variety of arguments against the constitutionality of the federal domestic violence restraining order ban in 18 U.S.C. § 922(g)(8)—some of which received substantial airtime during the oral argument earlier this month, and some of which did not. While many amici focus on the Fifth Circuit’s application of Bruen’s historical Second Amendment test, others do not address the Second Amendment at all. Rather, these briefs emphasize alleged due process and procedural shortcomings or argue that, as a threshold matter, Congress lacks power under the Commerce Clause to regulate individual gun possession.
The Supreme Court can affirm the Fifth Circuit’s decision on any ground that is supported by the record—longstanding precedent says “that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” So, in theory, the Court could say that the Fifth Circuit was wrong on its Second Amendment analysis but still affirm because it finds that 922(g)(8) fails to provide sufficient procedural safeguards before depriving restraining order respondents of their right to keep and bear arms and thus violates the Due Process Clause. The due process arguments against 922(g)(8) relate primarily to the fact that an individual may become subject to its gun possession ban without a judge ever making an explicit finding that the individual is dangerous, a credible threat to an intimate partner, or has committed family violence. This is because, under subsection (8)(C)(ii), a qualifying order might merely restrain a respondent from harassing an intimate partner and prohibit the use of force. The order in Rahimi’s case did determine that he engaged in domestic violence and was a threat to his intimate partner. Therefore, the due process objections would seemingly lead to an outcome where the Court severs the statute and invalidates only part of it, despite the fact that Rahimi mounts a facial challenge to the law. At oral argument, Justices Thomas and Alito appeared especially focused on due process arguments about 922(g)(8) and predicate family court protective order proceedings.
In this post, however, I will primarily address the Commerce Clause argument—one that was not discussed at any length during oral argument but which does appear in a number of amicus briefs in the case. The amicus brief filed by the Firearms Policy Coalition argues that “[t]he Commerce Clause does not authorize Congress to enact criminal laws banning mere possession of arms” and that “[t]he Court has long recognized that family law is likewise traditionally the province of state law.” Professor Nicholas Johnson’s brief similarly argues that, “[w]hile the sort of arms prohibition at issue here might fairly be grounded on state police powers, it outruns the limited powers of the Federal Government” and that “it requires a stretch of the imagination to picture mere possession as affecting commerce.” And the brief filed by the Foundation for Moral Law also appears to advocate some form of return to the original understanding of the Commerce Clause—arguing that “the Founders would have never tolerated a restriction on arms by the federal government.”
As a purely historical matter, these arguments are on relatively solid footing. The federal government was not involved in regulating individual gun possession outside of the militia context until the early 20th century, although the line between regulation of militia and individual weapons was blurry in early American history. As Saul Cornell observes, “government policy in the era of the Second Amendment aimed to encourage Americans to buy weapons they did not desire [but which were most useful for militia service], not discourage them from purchasing guns they did desire [for personal use].” In any event, members of the Founding generation likely did not envision the kind of extensive federal gun regulation framework explicitly tied to commercial activity that exists today—most federal gun regulation is based on a jurisdictional hook or nexus to interstate commerce, including all status-based prohibitions in Section 922(g) and the last major substantive piece of federal gun legislation, the now defunct federal Assault Weapons Ban of 1994. Up until 1937 and the “switch in time that saved nine,” the Court consistently rejected “an expansion of the commerce clause that would absorb or imperil the reserved powers of the states.” But, beginning in the late 1930s, the Court gradually endorsed an interpretation of the Commerce Clause power that is significantly broader than earlier judicial and legislative constructions. (That’s not to say, however, that a broader interpretation is necessarily inconsistent with original intent or even original public meaning. Scholars including Jack Balkin have argued that the original meaning of “commerce” was expansive and included all “interaction and exchange between persons or peoples”—likely covering many, if not, all modern-day exercises of the Commerce Clause power even if those applications were not specifically foreseen by the Founders.)
In a pair of major decisions issued in 1942, the Court clarified this new standard. In United States v. Wrightwood Dairy Co., the Court upheld federal price regulation of milk, explaining that “[t]he commerce power is not confined in its exercise to the regulation of commerce among the states.” Then, in Wickard v. Filburn, the Court held that,
even if  activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.”
This approach opened the door for all manner of previously unknown federal regulation, including in the areas of labor, the environment, and firearms. In a 1977 decision in Scarborough v. United States, the Court held that a contrary, narrower construction of the interstate commerce nexus in the federal felon-possession ban would “create serious loopholes in the congressional plan to ‘make it unlawful for a firearm . . . to be in the possession of a convicted felon.’” United States v. Lopez struck down a provision of the Gun Free School Zones Act in 1995 because “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” However, Congress amended the law to cover only gun carrying in or affecting commerce (i.e., a gun that has travelled in interstate commerce). That change was suggested by the Lopez decision itself, and subsequent challenges to the revised law were rejected. Every federal court of appeals has similarly held that the jurisdictional hook in 922(g) is within the Commerce Clause power (even post-Morrison, a 2000 decision which further narrowed the scope of the power by restricting when and how the impact of intrastate activity on interstate commerce can be aggregated).
Modern Commerce Clause doctrine supports federal regulation in three separate areas: (1) regulation of the channels of interstate commerce (for example, interstate highways and transportation networks), (2) regulation of persons or objects in interstate commerce and the instrumentalities of interstate commerce (including, for example, guns or drugs that have traveled in interstate commerce), and (3) intrastate activities that substantially affect interstate commerce (for example, non-instrumentality crimes like arson or loan-sharking covering activity that is local in nature but has a potentially broader impact on interstate commerce). The Court’s most recent decisions narrowing the Commerce Clause power (Lopez and Morrison) have dealt with the “substantial effect” category. But the jurisdictional nexus in Section 922(g) makes it an object or instrumentality case; the prohibitions are not predicated on a finding that gun possession by prohibited persons has a substantial effect on interstate commercial activity.
Why, then, are these Commerce Clause arguments re-emerging now in Rahimi? For one, some argue that Scarborough was wrongly decided or did not actually endorse an interpretation of the Commerce Clause that allows the federal government to regulate individual gun possession (as in 922(g)) based solely on the fact that the gun in question traveled in interstate commerce at a prior point in time. These arguments are, I think, quite clearly designed to appeal to Justice Clarence Thomas. Justice Thomas has long stated that he believes the Court’s post-1937 Commerce Clause jurisprudence is unfounded and un-originalist, and he advocates a return to first principles that appears to be broader than simply repudiating the “substantial effect” category of permissible Commerce Clause regulations. For example, Justice Thomas’ concurrence in Lopez urged his fellow Justices “to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.” And Justice Thomas has noted his view—in dissenting from denial of certiorari in a 2011 case regarding body armor—that “Scarborough, as the lower courts have read it, cannot be reconciled with Lopez because it reduces the constitutional analysis to the mere identification of a jurisdictional hook.” Justice Thomas, then, seems squarely among those who believe that a proper construction of the Commerce Clause (either under Lopez and Morrison, or under an even narrower scope consistent with original intent) would invalidate large swathes of federal gun regulation—potentially by requiring some sort of quantitative proof of interstate commercial impact even for instrumentality regulations like Section 922(g). And the amicus arguments along these lines seem to be directed primarily toward Justice Thomas.
One other reason that I believe the argument is receiving attention in Rahimi is that it potentially provides a doctrinal method for striking down 922(g)(8) while not also implicitly invalidating similar state statutes that restrict gun possession by those subject to domestic violence restraining orders (these state laws vary significantly, and some are broader than 922(g)(8)). Many amicus briefs filed in support of the government raise the possibility of such state laws being invalidated, and I think it’s generally true that the Fifth Circuit’s historical analysis would result in most similar state restrictions falling (if there’s no analogous historical tradition for 922(g)(8), that likely means no historical tradition for any domestic violence restraining order possession ban). But as Professor Johnson notes, “[w]hile the sort of arms prohibition at issue here might fairly be grounded on state police powers, it outruns the limited powers of the Federal Government.” In other words, the federal government cannot ban DVRO respondents from having guns (under the Commerce Clause) but state governments potentially can—separate from whether those state laws might comport with the Second Amendment. Thus, the idea (I believe) is that the Court should initially decide the threshold Commerce Clause issue by affirming on that basis, and then determine in a separate case whether state DVRO restrictions (which present no Commerce Clause problem) are consistent with the Second Amendment under Bruen.
Will the current Supreme Court be receptive to Commerce Clause arguments in Rahimi? I think the answer is likely no, for two main reasons. First, although Justice Thomas seems to be on board, it is unlikely that any other Justice believes that substantial portions of Section 922(g) are beyond the scope of the Commerce Clause power. Justice Gorsuch, for example, voted to reject a Commerce Clause challenge to the felon-in-possession law as a circuit judge and otherwise endorsed the Court’s modern Commerce Clause precedents. While Justices Barrett and Kavanaugh do not appear to have issued major Commerce Clause decisions, there’s no indication they are on board with a major departure from current jurisprudence in this area. There’s certainly some present-day momentum behind Commerce Clause arguments against federal gun regulation—one need look no further than last year’s dissent from the Fifth Circuit’s denial of rehearing en banc in United States v. Seekins, a felon-in-possession case. Judge James Ho, joined by two other judges, decried that “[o]ur precedent on felon-in-possession statutes allows the federal government to regulate any item so long as it was manufactured out-of-state—without any regard to when, why, or by whom the item was transported across state lines” and urged his fellow judges to consider a return to the original understanding of the Commerce Clause. And, in his concurrence to the en banc decision in Range, Third Circuit judge David Porter wrote that “[a] conception of the Second Amendment right that retcons modern commerce power into early American state law is anachronistic and flunks Bruen’s history-and-tradition test, . . . underprotect[ing] the constitutional right to keep and bear arms.” (I discussed Judge Porter’s concurrence in this earlier post.) But no other Third Circuit judge joined Judge Porter’s concurrence, and it also seems likely that the time has not yet come for this argument to gain real traction at the Supreme Court. In Seekins, the Court denied a petition for certiorari over no noted dissents (not even by Justice Thomas).
Second, Rahimi likely does not provide the best situation for this argument to succeed. For one, 922(g)(8) is invoked relatively rarely—per Rahimi’s brief, “[d]uring fiscal years 2018 through 2022, the Government secured sentences for 167 people under § 922(g)(8)—and 19 of those were also convicted under (g)(1).” Of course, this does not account for the number of background check denials that are based on qualifying restraining orders—which is significantly higher. But, in any event, it would be thoroughly strange for the Court to use this case to introduce a broad change in Commerce Clause jurisprudence—one that would have a far greater impact outside of the area of gun regulation. For example, narrowing the instrumentality category significantly would place into jeopardy numerous different areas of federal law including criminal law outside of firearms, federal environmental regulation, and federal financial and securities regulation (to name just a few). These changes would each have a significantly greater impact than removing the federal government’s ability to disarm domestic abusers (something that most states already do in some form). There does not seem to be any basis for adopting a narrower view of commerce instrumentalities in gun cases only, and it would be thoroughly odd—at the least—for the Court to implicitly endorse a major change in this area in a gun case without defining the question presented so as to enable thorough briefing on all potential consequences of such a change. Moreover, the facts in Rahimi don’t really lend themselves to a Commerce Clause argument. There seems to be no dispute that Rahimi possessed and used multiple firearms, all of which were manufactured outside of Texas. By contrast, Seekins—which, according to Judge Ho’s dissent involved “a homeless man (and previously convicted felon) [indicted] for possessing two shotgun shells that he found in a dumpster . . . [with] no record evidence of any commercial transaction of any kind involving the shells”—is a much better set of facts on which to bring a Commerce Clause challenge.
 Rahimi’s brief itself devotes two pages to this argument, asserting that “the Court [should] affirm for the alternative reason that Congress has no affirmative power to enact § 922(g)(8).”