Rahimi in the Lower Courts So Far

The Supreme Court’s much-anticipated decision in United States v. Rahimi in late June was the first time the high court had upheld a gun regulation against Second Amendment challenge (the sample size, of course, is small: the justices have heard a grand total of four Second Amendment cases since 2008).  Yet the decision itself was narrow, holding that, “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”  As I explored in an initial reaction post, Rahimi’s reasoning applies directly only to a limited set of gun laws—such as red flag laws, potentially, which are also based on an individualized threat finding—but kicks the can down the road for most categorical status-based restrictions and other types of gun regulation. 

Therefore, the Court’s decision to send a number of Second Amendment petitions it had been holding back to the lower courts after deciding Rahimi was an interesting one.  It’s not immediately clear that Rahimi institutes a new legal rule applicable to any of those cases.  The appellate court in each case might simply ask for additional briefing and then re-affirm its earlier decision, likely sending the case right back to the Supreme Court.  Here, I’d like to examine whether initial lower court reactions to Rahimi lend credence to this view.

So far, most lower courts have indeed read Rahimi as necessitating no major changes from post-Bruen approaches and, if anything, making the Bruen analysis somewhat more flexible.  Two decisions from the Northern District of Indiana illustrate this well.  One judge emphasized that Rahimi says nothing to suggest that felon bans are not still “presumptively” constitutional, per the Court’s earlier decisions, and cited Rahimi’s language disclaiming the need for a historical “twin” in support of upholding modern felon bans based on comparison to historical group-based prohibitions.  Another judge observed, while rejecting a Second Amendment challenge to a prosecution for possessing Glock conversion devices barred by the National Firearms Act that:

[i]f anything, Rahimi can be seen as a softening of the approach to the Second Amendment taken in Bruen. How else does one explain that the author of Bruen is the sole dissenter in Rahimi?

Similarly, a district judge in Hawaii referred to Rahimi as embracing “a potentially broader analogue test.”  A notable exception is the Eighth Circuit's decision yesterday in Worth v. Jacobson, affirming a pre-Rahimi district court ruling that invalidated Minnesota's public carry ban for 18-to-20 year olds (Leigh Crews covered that decision in an earlier guest post).  That panel read Rahimi as changing little, if anything, about the Bruen test and wrote that Minnesota had failed to present evidence to support its "claim that 18 to 20-year-olds, who are otherwise eligible for public-carry permit, 'pose [] a credible threat to the physical safety of others'" (quoting Rahimi).  The Worth court cited Rahimi's rejection of a broad irresponsibility principle but not the Court's reference to "the principles that underpin our regulatory tradition."

And lower courts have already split over Rahimi’s impact in other ways—specifically, over whether the Court’s decision allows reliance on pre-Bruen Second Amendment cases decided at the initial, plain text stage of the old two-part test (as opposed to those decided under means-end scrutiny).  For example, Judge Carlton Reeves of the Southern District of Mississippi recently invalidated the federal law barring gun possession by unauthorized immigrants and discussed Rahimi in the process.  Judge Reeves earlier struck down the federal felon ban as applied to an individual convicted of a multiple violent felonies, criticizing Bruen and its text, history, and tradition test sharply in the process (read our coverage of that decision here).

In United States v. Benito, Judge Reeves found that 18 U.S.C. § 922(g)(5) is unconstitutional as-applied to an unauthorized immigrant where the government had not demonstrated dangerousness.[1]  Judge Reeves also found that Rahimi—by declining to specifically rebuke the Fifth Circuit’s determination that all pre-Bruen cases are no longer good law—essentially endorsed that view:

The Fifth Circuit has found that “Bruen clearly fundamentally changed our analysis of laws that implicate the Second Amendment, rendering our prior precedent obsolete.” And the Supreme Court’s latest decision in Rahimi didn’t disagree with that premise in the slightest. Although the Justices parted ways with the Fifth Circuit’s outcome, they doubled down on the legal standard they articulated in Bruen.

Thus, Judge Reeves found himself not bound by prior Fifth Circuit precedent deciding that unauthorized immigrants fall outside of “the people” with Second Amendment protection.[2]  And he further relied on Rahimi’s rejection of an “unworkable” standard of irresponsibility to decide that “the people” cannot be limited to only those who are responsible. 

Other courts have already read Rahimi and reached a different conclusion.  For example, a judge in the Southern District of New York found that pre-Bruen precedent not relying on means-end scrutiny remains good and binding law because “Heller and McDonald still apply ‘in full force’ after Bruen and Rahimi.”  And a judge in Virginia determined that Rahimi’s treatment of irresponsibility did not alter a “throughline” of cases referencing a right conferred upon “law-abiding” citizens and thus did not disturb any pre-Rahimi or pre-Bruen analysis in that area.  In sum, it might be fair to say that Rahimi has led to even more uncertainty—at least in the initial weeks following the decision.

Benito also highlights immigration-related gun restrictions as a potential flashpoint, especially in the lead-up to this fall’s election cycle.  Second Amendment cases tend to be highly partisan, with Republican-appointed judges more likely (on average) to grant relief to plaintiffs challenging gun laws.  And scholars have demonstrated that this holds true even in the initial post-Bruen period—despite part of the basis for that decision being the desire to reduce judicial discretion.  But there are certain areas that scramble the normally predictable ideological alignment in Second Amendment cases.

One such area is gun restrictions on convicted felons.  For example, in the Third Circuit’s en banc decision invalidating the felon prohibitor under the Second Amendment as applied to those convicted of certain non-violent felonies, four Democrat-appointed judges voted in favor of the Second Amendment challenge (we covered that decision here).  Immigration may be another area where ideology is not an obvious predictor of outcome.  For example, Judge Reeves took pains to emphasize in Benito that “there’s no evidence that undocumented immigrants are more dangerous than documented immigrants or citizens” and that “fear of undocumented immigrants causing crime is [a] pretextual policy justification [that] warrants no deference in a court of law.”  It’s difficult to imagine a judge appointed by former President Donald Trump writing those words, despite the fact that Judge Reeves is staking out a highly pro-gun-rights view.

Trump has practically turned the idea that most or all unauthorized immigrants are dangerous into a cottage industry.  He proclaimed during the June 27 presidential debate that “killers are coming into our country and they are raping and killing women.”  And while there are certainly exceptions, some Trump-appointed judges have echoed this rhetoric and suggested that unauthorized immigrants pose a categorical danger to the country.  For example, in a case dealing with the ability of Texas to place floating barriers in the Rio Grande as an anti-migrant measure, a group of Fifth Circuit judges referred to the “serious dangers presented by the current border crisis,” characterized the influx of unauthorized immigrants as fitting the legal definition of an “invasion,” and opined that “the United States is failing to protect Texans from this danger.”  If unauthorized immigrants are categorically dangerous, that presumably holds true across the board—it would be odd, to say the least, to believe that states can go to extraordinary lengths to keep such immigrants out but that, if migrants happen to make it into the country despite those efforts, the Constitution requires they be allowed to arm themselves.  Yet some of those very same Fifth Circuit judges have taken the (seemingly irreconcilable) view that incarceration—and the resulting denial of access to firearms—is the only constitutionally permissible form of status-based gun restriction under the Second Amendment.[3]  And certain judges have been extremely critical of historical comparisons to racially discriminatory group gun prohibitions often offered to support 922(g)(5) at the second step of Bruen—Justice Thomas, for example, pointedly asked the government at oral argument in Rahimi about those comparisons.

I ultimately think that immigration concerns are likely to carry the day with the Court’s current conservative majority—meaning that the Court would brush aside a Second Amendment challenge to 922(g)(5) and allow categorical disarmament.  And the Court’s recent treatment of immigration history in other areas of constitutional law suggests a high-generality approach that could uphold 922(g)(5) across the board.  But Judge Reeves’ decision highlights how immigration-related gun restrictions might lead to unexpected outcomes.