Rahimi’s Impact: Supplemental Briefing and Re-Issued Decisions

After the Supreme Court decided Rahimi this past June, it proceeded to send a number of major Second Amendment cases back down to the lower courts through the GVR (grant, vacate, and remand) process for further consideration in light of Rahimi.  I wrote about this phenomenon in September, including the fact that the Court had sent back cases reaching different conclusions on the constitutionality of the same law and that lower courts were, in some instances, nevertheless reading a great deal into the fact that a specific case had been remanded.  The first wave of decisions applying Rahimi came largely in new cases, as the GVR-ed litigation took some time to work its way back up.  We now have a clearer picture of how the appellate courts are handling Rahimi in response to the Supreme Court’s directive to consider its impact on specific categories of Second Amendment cases. 

One of the cases the Court sent back was Antonyuk v. James, a major Second Amendment challenge to New York’s licensing rules for concealed carry and locational restrictions post-Bruen. We covered the Second Circuit’s initial decision in January 2024 reversing a lower court ruling invalidating large pieces of the New York law here.  The Second Circuit affirmed the district court’s injunction of New York’s requirement to submit a list of social media accounts to obtain a concealed carry license, the state’s ban on carrying guns in churches, and the state’s default ban on carrying guns onto privately-owned property.  The district judge had struck a number of other licensing requirements and sensitive-place bans, which the appellate panel reversed and upheld.  The case was one of the first major post-Bruen federal court decisions and has a lengthy procedural history that we’ve covered extensively here on the blog—just type “Antonyuk” in the speech bar for a list of links.

After the Supreme Court GVR-ed Antonyuk in July, the Second Circuit requested supplemental briefing from the parties in early August.  Predictably, the state argued not only that Rahimi supported the court’s decision upholding the various provisions of the law that the district judge had earlier invalidated—but also that “Rahimi counsels modifying the judgment so as to vacate in its entirety the preliminary injunction as to the requirement that a person obtain the consent of the property owner before carrying firearms on private property.”  Specifically, New York argued that “under the approach endorsed by Rahimi, the private-property provision is consistent with the longstanding principle that property owners may require consent before permitting firearms on their property.”  And the state emphasized that Rahimi “reiterated the high bar applicable to facial constitutional challenges.”  By contrast, the plaintiff argued that “the Rahimi Court made clear that it was following Bruen’s methodology to the letter.”  The brief asserted that Rahimi’s rejection of a historically supported principle that “irresponsible” citizens may be disarmed “is irreconcilable” with the Second Circuit’s decision upholding New York’s moral character requirement.  And the plaintiff identified Rahimi’s reference to “founding era regimes” as “further confirmation that [the Second Circuit’s] focus on Reconstruction-era historical sources was erroneous.”

In late October, the Second Circuit issued a revised decision.  The ruling stretches for 245 pages, yet it reaches the same substantive outcomes as the panel’s earlier decision.  At the outset, the panel observed that Rahimi “has little direct bearing on our conclusions” because it dealt with a different type of Second Amendment challenge than the case before the Second Circuit.  However, the panel did note that

the Court's analysis of the considerations and methodology bearing on the constitutionality of the statute before it [in Rahimi], and in particular its explication of the role of history in interpreting the Second Amendment, clarified to some degree the meaning and effect of its prior decision in New York State Rifle & Pistol Association, Inc. v. Bruen. For the most part, the methodology adopted in Rahimi is consonant with the one that we applied in our prior consolidated opinion, and the Court's analysis in Rahimi therefore supports our prior conclusions. In any event, we have conscientiously followed the Court's mandate and have reconsidered all of our conclusions in light of Rahimi . . . .

The revised decision appears to treat Rahimi as embracing a somewhat more flexible analogical reasoning approach than Bruen.  Notably, the panel wrote that “Rahimi helps to explain Bruen’s endorsement of the constitutionality of ‘shall-issue’ licensing regimes . . . by suggest[ing] that what matters in the search for historical antecedents of modern firearms regulations is the substance of the regulation, rather than the form.”  And the panel emphasized Rahimi’s high standard for facial challenges and the fact that “New York’s ‘good moral character’ requirement is plainly capable of constitutional application to dangerous persons.”  As to whether 1791 or 1868 is the correct historical reference point, the panel noted that “the Rahimi Court left that issue open” and saw no reason to reverse course from its earlier approach that relied on post-enactment laws from the 1800s.

Two other courts have followed slightly different paths in light of the Supreme Court’s July decision to send cases back down.  In United States v. Daniels, where the Fifth Circuit invalidated the federal ban on unlawful drug users possessing guns as applied to a marijuana user (which we covered here), the appellate court similarly requested supplemental briefs from the parties but then scheduled an additional oral argument, which took place on October 8.  The government argued in its brief that the Fifth Circuit’s “contrary panel decision rests on some of the methodological shortcomings that the Supreme Court identified in Rahimi.”  Specifically, the government contended that “Rahimi clarified that courts should examine the historical analogues together to identify the principle they collectively represent and then determine whether the statute at issue is consistent with that principle”—and that the Fifth Circuit incorrectly assessed historical analogues individually.  By contrast, Daniels characterized Rahimi as a “narrow” decision that “clarifies Bruen but does not retreat from it.”  Daniels said that the decision is of limited relevance because it involved a facial (rather than an as-applied) challenge and because Rahimi “affirms” that the government cannot disarm Daniels under a theory that his marijuana use makes him irresponsible but not dangerous.

Range v. Attorney General involves the ability of nonviolent felons to recover their firearm rights under the Second Amendment.  The en banc Third Circuit granted an as-applied challenge in June 2023 (in a decision we covered here).  The Third Circuit appears to have omitted the supplemental briefing step and gone straight to a second en banc argument—the case was reheard before the full court on October 19.

At oral argument, Range’s counsel opened by arguing that he “view[s] Rahimi as just an application of Bruen and, similarly, this Court’s earlier opinion as the same.”  When pushed on this point, Range’s counsel noted that “I don’t think there was a change in methodology. Bruen talked about how and why. I think that’s basically the same as looking to the principles and applying those.”  And he argued that the government failed to identify any historically supported principle that would justify disarming Range because history does not show that those who committed serious crimes were invariably disarmed and because Range is not dangerous.  In addition, Range emphasized the Supreme Court’s rejection of irresponsibility as a principle that can justify disarmament and asserted that “‘serious’ suffers from many of the same vagueness concerns as ‘law-abiding’ and ‘responsible.’”

The government, by contrast, focused on Rahimi’s reference to historical principles as “clarif[ying] at what level you conduct the generality to draw lessons from history” and holding that a court must “look at that as a whole, [with] the laws taken together.”  The government also stressed the Rahimi court’s seeming embrace of the idea that serious punishments historically necessarily justify lesser punishments today for the same conduct and argued that Rahimi relied in part on Heller’s endorsement of felon bans.  The government argued generally that “disarmament for serious crimes” is a historically supported principle and that Rahimi allowed categorical determinations based on dangerousness.

On one hand, it’s clear that Rahimi must have changed something about the Bruen test because Justice Thomas—the author of the majority opinion in Bruen—was the sole dissenting justice in Rahimi.  That said, it’s also possible that most lower courts were already applying a version of the Bruen test that departed in some material way from Justice Thomas’ actual intended test in looking more flexibly to historical principles.  Given how the arguments on remand have developed, it’s difficult to see any of these courts changing their decisions substantially as a result of Rahimi—the revised decisions in Daniels and Range, then, seem likely to look a lot like the earlier ones and reach the same outcome, as the Second Circuit did in Antonyuk.