Rahimi, Decision Timing, and Opinion-Writing Predictions

On November 7, 2023, the Supreme Court heard oral argument in United States v. Rahimi—a Second Amendment challenge to the federal ban on individuals subject to certain domestic violence restraining orders possessing guns for the length of the order.  The Fifth Circuit struck down the law, finding that it was unsupported by the American historical tradition of gun regulation (we covered that decision here and here).  It has now been nearly six full months since the Rahimi argument, and two major questions are on the minds of many Second Amendment scholars and others following the case: when will the Supreme Court issue its decision, and which justice will write the majority opinion?

On the first question, we don’t have much guidance simply because the Supreme Court has heard so few Second Amendment cases overall.  Bruen, McDonald, and Heller—the Court’s three major pronouncements in this area—were all issued in late June, close to or on the Court’s final decision day of the term.  Bruen had a much longer gap, however, from oral argument to decision.  Bruen was argued on November 3, 2021 and not decided until June 23, 2022 (232 days later).  McDonald and Heller, by contrast, were each decided about 3-4 months after they were argued (118 days for McDonald, and only 100 days for Heller).  The Supreme Court has decided one other Second Amendment case in the modern era: Caetano v. Massachusetts, where the court summarily reversed the Massachusetts Supreme Court’s holding that stun guns were not protected “arms” in a per curiam decision without holding oral argument.  That decision was issued on March 21, 2016—294 days after Caetano filed her petition for certiorari and after the petition was re-listed for 11 different conferences.  For high-profile cases argued early in the term, like Rahimi and Bruen, a gap of seven-plus months is not unusual.  Dobbs had a similar gap from argument to decision (205 days), as did other recent blockbuster constitutional cases such as Bostock v. Clayton County (240 days) and Masterpiece Cakeshop (181 days).  

Although it’s impossible to predict with any certainty, the most likely scenario seems to be a mid-to-late June decision in Rahimi.  After wrapping up arguments for the current term on April 25, the justices currently appear to be hard at work on the 40-plus outstanding opinions they will issue by the end of June (the Court has issued 18 decisions so far).  The Court’s calendar lists the next possible decision day as this Thursday, May 9.

Perhaps the more interesting question is which justice will write the majority opinion in Rahimi.  As of late April, Justice Sotomayor had the highest number of majority opinions among the set already issued with four.  Justice Barrett was close behind with three, followed by Justices Jackson, Kagan, and Gorsuch with two each.  Justice Alito was the only justice without a majority opinion in any decided case.  With so many opinions still outstanding, it’s difficult to draw any major conclusions from this data—and the author may depend in large part on the scope of the decision in Rahimi (in other words, to what extent the Court attempts to cabin its holding to only the specific provision at issue as opposed to opining on the constitutionality of related gun restrictions such as felon possession bans). 

To me, at least, the most likely candidates to write the majority opinion in Rahimi are, in order of decreasing likelihood[1]: (1) Justice Barrett, (2) Justice Kavanaugh, (3) Chief Justice Roberts, and (4) Justice Thomas.  Justice Barrett seems a natural choice given her Kanter dissent and the possibility that the Court adopts a version of the principle she endorsed in that case: namely, that “[h]istory . . . demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”  The Solicitor General argued in favor of this “dangerousness” principle at oral argument. While the government likely supports a more expansive conception of dangerousness with regard to past criminal convictions than Justice Barrett, she seems likely to agree with the SG about how the concept applies in the domestic violence context.  Justice Kavanaugh is a close second, for me, because he is often credited with developing the text, history, and tradition test as a circuit judge (dissenting from a 2011 decision rejecting a challenge to D.C.’s assault weapons ban), and because he emphasized in that case that governments have “flexibility and power to impose gun regulations under a test based on text, history, and tradition.”  The Chief Justice joined Justice Kavanaugh in what was essentially a cautionary concurrence in Bruen, and thus seems a likely candidate to a write a decision in a high-profile case explaining that Bruen was not meant to disturb the type of law at issue.  If the Court ends up taking a narrow approach to the case, then it’s also possible that Justice Thomas could emerge as the author—essentially offering a clarification of his earlier majority opinion in Bruen.  

It would surprise me if Justice Alito, Gorsuch, Kagan, Sotomayor, or Jackson ended up writing the majority opinion—although it’s entirely possible we could see concurrences or dissents from one or more of those justices.  Justices Kagan, Sotomayor, and especially Jackson all appear to be in favor of a broader repudiation of the Bruen test, one that almost certainly lacks majority support on the current Court.  Justice Alito appeared somewhat skeptical of the government’s case at oral argument and focused on the procedural mechanics of the DVRO law, but I think it is unlikely the Court will decide the case on that basis.  And Justice Gorsuch seemed to be of the opinion that (as Professor Jake Charles has argued in these two prior posts) Rahimi’s facial challenge must fail because the law is constitutional in some applications; but that an as-applied challenge might be possible if the underlying protective order did not contain an actual finding of dangerousness.  This makes Gorsuch a likely vote to reverse, but other justices did not seem as interested in the facial challenge aspect.

[1] This analysis largely assumes the Court will to reverse the Fifth Circuit and uphold 18 U.S.C. § 922(g)(8), which appears to be the most likely outcome based on oral argument.