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What's So Special About the Right to Keep and Bear Arms?

  • Date:
  • December 20th, 2023

By: Darrell Miller

On November 7, 2023, the Supreme Court heard oral argument in United States v. Rahimi, a facial challenge to the constitutionality of 18 U.S.C. § 922(g)(8), which makes it a federal felony for a person under a qualifying domestic violence restraining order to possess firearms. 

During oral argument, Justice Clarence Thomas and Justice Samuel Alito both raised due process concerns about the procedures that result in a domestic violence restraining order.  They weren’t alone.  Thirty-five amici touched on due process in some fashion.  

This focus on due process strikes me as odd, given that so many other constitutional rights are routinely curtailed by a valid restraining order—rights to speak, to worship, to private property, to raise a child, and so on.  Given that these other rights are so frequently affected by a valid restraining order—what’s so special about the right to keep and bear arms?

In 2019, Zackey Rahimi’s then-girlfriend, having suffered violence at the hands of Rahimi, and fearful for her life and the life of her child, obtained a restraining order from a Texas state court.  Rahimi appeared, agreed to the form of the proposed restraining order, and waived his right to a hearing to contest any of the underlying facts.  The judge found that Rahimi represented a credible threat to his ex-girlfriend and was likely to commit family violence in the future; the judge then issued an order preventing Rahimi from threatening, harassing, or approaching his former girlfriend or her family, suspended his handgun license, and required him to surrender whatever firearms he had.  While subject to the restraining order, Rahimi was prohibited under both state and federal law from possessing guns.

Rahimi went on to defy the restraining order, and stands accused of five unrelated shootings over the span of two months.  Police investigating these shooting incidents searched Rahimi’s residence and found two firearms that Rahimi admitted were his, along with a copy of the restraining order that forbade him to have them. 

Federal prosecutors charged Rahimi with violation of § 922(g)(8), but Rahimi argued the regulation was facially unconstitutional under the Second Amendment.   Rahimi succeeded in the Fifth Circuit and the Supreme Court granted certiorari.   Although the question granted was “[w]hether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence protective orders, violates the Second Amendment on its face,” a significant portion of the amicus briefing, questioning, and commentary has dealt with due process.  

During oral argument, Justice Samuel Alito peppered the Solicitor General, Elizabeth Prelogar, with due process-related questions. “Is there anything that a person who is subject to one of these [domestic violence restraining] orders can do if the person claims that there wasn't really sufficient notice or that due process rights were violated in some way . . . ?”  Justice Thomas picked up the due process inquiry, asking counsel for Rahimi, J. Matthew Wright, the following: “So there was some talk about possibly challenging this under the Due Process Clause later on or an as-applied challenge to this. How would -- how would you see that taking place if this is an automatic disarmament?”   The Justices’ questions came hard on the heels of nearly three dozen amicus briefs addressing due process in some fashion.

I remain perplexed by this focus on due process by the Justices, amici and commentators.  Other constitutional liberties—the right to speak, to associate, to travel, to property, to worship, and to raise a child—are seriously, and routinely, curtailed by judicial hearings that result in domestic violence protective orders, and yet no special attention is paid to the Due Process Clause when these rights are implicated.

The First Amendment protects “a right to associate for the purpose . . . speech, assembly, petition for the redress of grievances, and the exercise of religion.”  It also secures a right to “maintain certain intimate human relationships . . . against undue intrusion by the State.”   And yet domestic violence restraining orders, almost by definition, prohibit persons from contacting other persons, directly or indirectly, whether by telephone, mail, email, social media or any other electronic means.  

The right to worship in the fashion dictated by one’s conscience is a basic tenant of freedom of religion. Yet a domestic violence restraining order can prohibit a person from attending a particular church, synagogue, temple, or other site of religious observance, if the person who has obtained the order will be there as well. 

Similarly, one of the deeply rooted, traditional substantive due process rights is to maintain family relationships and to rear a child free from government interference.  Yet, here again, a domestic violence restraining order often restricts persons from coming into contact with their children and visiting their children’s schools, day cares, or athletic events.

Property rights and privacy are also affected by an order.  A domestic violence restraining order can require a person to vacate their home or to surrender possession of real and personal property to another person. Some jurisdictions can even require electronic monitoring of persons subject to the order.

Violating a restraining order can carry hefty criminal penalties.  But it’s exceedingly rare, as far as I know, for a domestic violence restraining order to be struck down on the grounds that it supplied inadequate procedural protections—especially, one might imagine, when the person consents to abide by the order.  And all the substantive grounds of objection based on free speech, equal protection, right of association, property rights, and other independent constitutional grounds have generally failed.  

Given that other constitutional rights are routinely curbed by a categorical determination of dangerousness following a hearing, and given that the existing doctrine treats these procedural protections as sufficient to protect these other rights, what’s so special about the right to keep and bear arms? 

One may object that none of these other curtailments appear as a standalone criminal prohibition, like 922(g)(8).  But that seems like a distinction without a difference.   The order in Rahimi’s case itself prohibited him from owning firearms.  Violation of the terms of a restraining order is a separately prosecutable offense in a number of states.  Whether the criminal liability flows from violation of the terms of the order itself, or is due to a separate provision that penalizes violation of a domestic violence restraining order, the criminal implications are the same.

One may object that 922(g)(8) is overbroad because it denies a person 100% of the right to keep and bear arms, whereas a protective order only constrains a person’s right to speech, or to worship, or association, or child rearing as to a certain number of people, or certain places at certain times, or to a limited geographical area.  But that just depends on what you count as the denominator for purposes of determining whether all, some, or little of the right has been impacted.  Section 922(g)(8) does not prohibit a person under a domestic violence restraining order from possessing other implements of self-defense like knives, pepper spray, tasers, and the like.

Further, the inability to contact and raise one’s only child, because the judge concludes after a hearing that the person poses a threat, eliminates 100% of the right to parent that child.  Yet parents subject to a valid domestic violence restraining order get no second, substantive due process review, just because 100% of parental rights are at stake, any more than they get a second, substantive free speech or free exercise review. 

This leaves me with the impression that the questions and commentary about the process that leads to a domestic violence restraining order in § 922(g)(8) cases are less about due process, and more about a creeping gun-rights exceptionalism that amps up judicial scrutiny anytime a firearm is involved.

Already we see the effect elsewhere: a zoning dispute over firing ranges becomes a Second Amendment case, rather than a routine matter of noise and traffic; general public health restrictions applicable to all other non-essential commercial enterprises must permit special exceptions for gun retailers.   And now, with Rahimi, a domestic violence restraining order that implicates gun possession raises concerns about the sufficiency of a process that in any other case is considered perfectly adequate to adjudicate the right to speak, worship, possess property and parent a child.  

Last term, Justice Thomas in NYSRPA v. Bruen declared that the Second Amendment is not  “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”  It’s certainly not.  To the contrary, the Second Amendment is fast becoming a super-right – a right of such magnitude that it bends and twists every other legal matter it happens to touch.