In an 8–1 ruling, the Supreme Court decided today in United States v. Rahimi that an individual “who has been found by a court to pose a credible threat to the physical safety of another” can be “temporarily disarmed” without violating the Second Amendment. That said, Zackey Rahimi, the individual in question, was not what lawyers would call a “good test case.”
Rahimi’s girlfriend (the mother of his child) got a restraining order against him in early 2020, after he pushed her into the dashboard of a car, noticed someone else was watching, grabbed a gun from under the passenger seat, fired it as his victim took the chance to run away, and later threatened to shoot her if she reported what happened. Then he threatened a different woman, leading to a charge for aggravated assault with a deadly weapon. “And while Rahimi was under arrest for that assault,” the Court noted, “the Texas police identified him as the suspect in a spate of at least five additional shootings,” whose contexts ranged from drug dealing to road rage to a declined credit card in a diner.
So, believe it or not, the Second Amendment does not protect Rahimi from being prosecuted for the guns the cops found in his home. However, Chief Justice John Roberts’s majority opinion still leaves many questions unanswered regarding the scope of Americans’ gun rights and the government’s leeway for regulation.
At issue was a federal law barring gun possession for those under a restraining order, subject to certain restrictions: the target of the order must have a chance to participate in a hearing, and that order must either find him a “credible threat to the physical safety” of the victim or explicitly prohibit him from using or threatening force against the victim.
In legal jargon, Rahimi’s case was a “facial” challenge to this law. He had to show that the policy was unconstitutional in every application and thus should be stricken from the books. Given the circumstances, if the law could constitutionally apply to anyone, it would probably apply to Rahimi.
Ultimately, the Court’s ruling will have implications for both the federal law at issue and for the interpretation of the Second Amendment more broadly.
Rahimi’s restraining order included a finding that he was a threat, but the federal law also applies when a court order merely prohibits someone from using physical force. Critics of this second provision argue that such language is often included more as a “prophylactic” or “boilerplate” than because the individual truly poses a threat. A future case will have to establish whether this route to disarmament via restraining order is constitutional, because the majority’s analysis in Rahimi, by its own terms, “starts and stops” with the first provision, applying when the court has found a credible threat.
Rahimi begins the work of clarifying what the Court meant in New York State Rifle & Pistol Association, Inc. v. Bruen two years ago. In Bruen, the majority affirmed that the right to bear arms entails a right to carry them and struck down a New York law that effectively banned carrying a gun for the vast majority of the population. But the Court also laid out a new test for whether gun laws are constitutional, which forced government lawyers on a bit of a scavenger hunt. To show that modern laws restricting guns are constitutional, they now have to identify “analogous” regulations from early in the nation’s history.
In Rahimi, the Court found that some early regulations were similar enough to the law banning guns for domestic abusers under a restraining order and chided lower courts for sometimes being too demanding. The majority highlighted historical prohibitions against “going armed” for the purpose of terrorizing others, as well as “surety” laws, under which magistrates could require threatening individuals to post a bond they would lose if they broke the peace. The ruling clearly gives states broad latitude to disarm those who have been shown to be dangerous, but its implications are less clear when it comes to, say, gun restrictions for nonviolent felons.
Notably, Justice Clarence Thomas, who wrote the majority opinion in Bruen, provided the sole dissent. In his view, “Not a single historical regulation justifies the statute at issue.” He is certainly correct that, while interpersonal violence is a problem that governments have confronted since time immemorial, a gun ban for domestic abusers under restraining orders is a recent innovation. Neither surety bonds nor going-armed laws are all that similar to it.
But Justice Thomas’s observation highlights a problem with Bruen rather than Rahimi. As Justice Amy Coney Barrett notes in her concurring opinion today, an overly demanding scavenger hunt test assumes “that founding-era legislatures maximally exercised their power to regulate.” If they declined to enact a given gun regulation, the logic goes, then the Constitution must prohibit it—a striking logical leap. I’ve harped on this problem here and elsewhere since the day Bruen was decided.
The Rahimi majority is wise to loosen that assumption, treating historical laws as illustrations of broad principles rather than as a binding menu of options for today’s policymakers. But we’ll see how these principles shake out in future cases.
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