Rahimi, Categorical Bans, and Irresponsibility

The Supreme Court’s decision in Rahimi upholding the federal ban on possessing guns while subject to certain domestic-violence restraining orders clarified that Bruen’s text, history, and tradition test requires neither a historical twin nor a historical cousin.  Chief Justice Roberts’ opinion for an eight-justice majority emphasized that a modern gun law must be “consistent with the principles that underpin the Nation’s regulatory tradition.”  That’s a subtle, but important, difference from Justice Thomas’ formulation in Bruen: “consistent with the Nation’s historical tradition of firearm regulation.”  Yet the Rahimi majority is largely content to kick the can down the road and leave more difficult applications of history and tradition for another day.  Nowhere is this clearer than in the opinion’s refusal to opine directly on which historical principles will be relevant for future cases and when modern categorical legislative judgments are appropriate.

922(g)(8) applies only on an individualized basis.  It does not apply to every person subject to a state-law domestic violence protective order.  Rather, the individual order at issue must contain specific findings and/or prohibitions relating to the respondent’s likelihood of committing future violence.  The Rahimi majority emphasized the individualized nature of the provision in various ways, stressing that the law applies to “those found by a court to present a threat to others,” “citizens who have been found to pose a credible threat to the physical safety of others,” and so on.  Of course, most status-based gun laws don’t work this way.  Rather, they prohibit possession at the group level based on a predictive legislative judgment without individualized findings and are thus almost certainly overinclusive to some degree.  For example, convicted felons, drug users, unauthorized immigrants, and those who have been dishonorably discharged—among other groups—are barred from possessing guns without any inquiry into whether they pose a physical threat to another person.[1]  The Court has specifically endorsed certain group prohibitions in its past Second Amendment cases (such as the felon ban and bans on the mentally ill).  Yet, by not clarifying the relevant historical principle for these and other categorical prohibitions, the Rahimi court ruled quite narrowly.

Interestingly, state red flag laws probably present the most analogous situation to the federal DRVO ban upheld in Rahimi.  These laws—which are now on the books in 21 states plus DC—do require individualized judicial findings of likely danger to oneself or others.  All current state red flag laws contain ex parte provisions allowing temporary seizure without notice to the respondent, but the individualized assessment remains all the same.  And, given the majority’s emphasis in Rahimi on “limited duration” as a key aspect of the historical comparison to surety bonds, it’s ultimately hard to read Rahimi as anything but a strong marker that red flag laws are facially constitutional (though potentially subject to as-applied or due process challenges).  While some New York state court judges struck down the state’s red flag law post-Bruen, purportedly on Second Amendment grounds, I don’t think those decisions can be squared with Rahimi’s analysis of historical surety laws.  Rather, as the majority writes, any “individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

Rahimi may provide a relatively clear answer on the constitutionality of red flag laws, but it doesn’t settle much else.  That’s because there still seems to be substantial disagreement among the justices about how to evaluate categorical group disarmament under text, history, and tradition and what the relevant “principles” are.  The majority largely elides the issue, reiterating Heller’s conclusion that bans on gun possession by felons and the mentally ill are “presumptively lawful” but also “reject[ing] the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible.’”  And Justice Gorsuch writes in his concurrence that he views the majority opinion as not “approv[ing] in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem” unworthy. 

As some may recall, at oral argument in Rahimi, Solicitor General Elizabeth Prelogar argued that governments may prohibit those who are non-law-abiding or not responsible from possessing guns consistent with history.  She asserted that a “legislature [can] mak[e] categorical predictive judgments that individuals with a certain characteristic or quality or past conduct present a danger,” and that a court would then assess the propriety of such a judgment by looking to how broadly the law sweeps into protected conduct, “the justifications and the evidence before the legislature,” and how many states have adopted similar approaches.  What’s interesting about the Rahimi majority’s rejection of “irresponsibility” is that the Court simply doesn’t address the SG’s broader suggested framework for categorical bans.  Rather, some number of justices appear concerned about the colloquial meaning of the word “irresponsible.”  This prompted some awkward exchanges at oral argument, with justices variously suggesting that a focus on irresponsibility would allow laws barring gun possession for “not taking your recycling to the curb on Thursdays”—laws that I don’t think any serious person believes would comport with the Second Amendment.  Indeed, in response, General Prelogar replied that the government had drawn irresponsibility from the Court’s past decisions and was using it as a synonym for dangerousness.

Thus, I read the majority’s rejection of “responsibility” as something of a sideshow and rejecting a concept that no party in the case seriously endorsed.  I do wonder whether the use of the term—even if drawn directly from the Court’s past precedents—was a strategic error for the government.  But it ultimately may not matter much.  I expect that some group of 5 or more justices is in favor of a type of dangerousness test similar to that endorsed by then-Judge Barrett in her Kanter dissent for all categorical, person-based restrictions (even those not based on criminal convictions).  Rahimi presented an opportunity for the Court to make that position clear, but it now seems more likely to occur in a future case involving a nonviolent felon or drug user.  During oral argument Justice Barrett and the SG appeared to agree that nonviolent felons (the “Range issue”) would be addressed in a future case.  With its ruling in Rahimi, the Court has likely committed itself to a steady diet of future cases challenging status-based gun bans.  Although the Court just yesterday kicked back the petitions it was holding pending Rahimi, I'm not sure that Rahimi dictates a different outcome in any other status-based ban case.  Thus, it's perhaps likely that many of these cases wind up back at the Court soon. 

In thinking about the Court’s future Second Amendment docket, one fascinating aspect of Rahimi is how far Justice Thomas felt compelled to go in dissent emphasizing that criminal prosecution is the sole historically supported method to address the risk of gun possession by violent individuals.  Thomas wrote, for example, that a threat against another person can and should be grounds for criminal prosecution—picking up on a theme in Judge Ho’s concurrence below.  The more that Justice Thomas and other judges emphasize criminal prosecution, however, the closer they come to suggesting that the felon prohibitor is constitutional in most applications.  While I certainly don’t believe Justice Thomas would side with the government in a case like Range, I do think his Rahimi dissent suggests he might uphold the felon ban as applied to difficult edge cases where the underlying conviction is only tangentially probative of interpersonal violence (such as offenses involving child pornography and financial misdeeds tied to organized criminal groups).  At the very least, a vote to strike down the law in those instances would be difficult to square with his position in Rahimi.