Supreme Court Upholds Law Allowing Confiscation of Firearms. Why All Is Not Lost.

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After a string of consecutive victories at the Supreme Court, Second Amendment advocates suffered their first major setback Friday, failing for the first time since 2008’s landmark decision in D.C. v. Heller to convince the nation’s highest court to strike down a gun control law as unconstitutional.

In an 8-1 opinion written by Chief Justice John Roberts, and joined by all of the justices except Clarence Thomas, the Supreme Court in United States v. Rahimi upheld the constitutionality of a federal statute (18 U.S.C. § 922(g)(8)) that prohibits possession of firearms by individuals subject to certain types of restraining orders for domestic violence.

Although the outcome is, in a sense, a victory for the government, it doesn’t necessarily constitute a “defeat” for the Second Amendment.

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Here are five things to know about the high court’s most recent Second Amendment case.

1. Rahimi was the Supreme Court’s first chance to apply Bruen’s historical analogue test.

To really appreciate how Rahimi is neither a victory nor a defeat for the constitutional right to keep and bear arms, the case must be understood in the broader context of the Supreme Court’s recent Second Amendment jurisprudence.

Two years ago, in New York State Rifle & Pistol Association v. Bruen, the high court affirmed that ordinary citizens have a Second Amendment right to bear arms for self-defense in public and struck down New York’s restrictive “proper cause” requirement for issuing public carry permits.

Just as importantly, Bruen clarified for the first time the test that lower courts must use when analyzing Second Amendment challenges. Lower courts, prior to Bruen, had utilized a test that amounted to little more than “interest balancing”—with those interests almost always falling in favor of the government’s imposition of gun controls.

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Bruen’s test, however, is centered on text, history, and tradition, and requires the government to justify a challenged gun control law by demonstrating that it is consistent with the nation’s historical tradition of firearms regulation.

The government doesn’t have to produce a historical twin or “dead ringer” for the modern law. But it does, at the very least, have to impose a comparable burden on the right of armed self-defense, and that burden has to be comparably justified.

2. Rahimi wasn’t an ideal candidate for vindicating the Bruen test.

The Supreme Court’s articulation of this historical analogue test immediately resulted in a flurry of Second Amendment challenges to a wide range of firearms-related restrictions.

Many Second Amendment advocates hoped (and still hope) that some of these challenges ultimately will provide the court with prime opportunities to vindicate the Bruen test and for the first time address important questions, such as what types of weapons are protected and whether law-abiding young adults may be categorically disarmed.

Previous major Second Amendment victories—such as D.C. v. Heller, McDonald v. City of Chicago, and New York State Rifle & Pistol Association v. Bruen—all had several important factors in common that made them good vehicles for building out the court’s Second Amendment jurisprudence.

These cases featured sympathetic plaintiffs who were undeniably law-abiding and peaceable. They presented straightforward and uncomplicated constitutional questions and challenged unpopular gun laws that broadly and severely restricted the rights of ordinary Americans.

Ideally, the case that “won the race” back to the Supreme Court after Bruen would have followed a similar pattern.

Unfortunately, United States v. Rahimi was, in many respects, the antithesis of these previous Second Amendment cases.

Most notably, Zackey Rahimi—the plaintiff in this case—isn’t particularly sympathetic. In fact, by all accounts, he’s a really bad guy. The background facts are often messy and unclear, but they read like the synopsis of an above-average episode of “Law & Order.”

Rahimi was accused of committing several domestic violence offenses, including at least one that involved the criminal use of a firearm. As a result, a court issued a domestic violence restraining order against him that met the criteria necessary under § 922(g)(8) to prohibit Rahimi from possessing firearms.

Within short order, Rahimi proceeded to ignore the restraining order and his status as a prohibited person. He illegally obtained a firearm and, over a two-month span, committed at least five separate shootings. Eventually, police arrested him and he pled guilty to criminal charges at the state level.

3. The lower court held that the federal statute was unconstitutional under Bruen.

Even though Rahimi pled guilty to his criminal charges under state law, he simultaneously was charged and convicted in federal court for violating § 922(g)(8). After the Supreme Court issued its Bruen opinion in 2022, he rechallenged this federal conviction, arguing that it was unconstitutional under the Bruen test.

A panel of the U.S. Court of Appeals for the 5th Circuit agreed, reasoning that nothing in the historical record evidenced a national tradition of using civil restraining orders to completely deprive people of the right to keep and bear arms when they are merely accused—but not yet convicted—of domestic violence.

The 5th Circuit was also quick to point out that although the government couldn’t disarm Rahimi just by issuing a civil protection order, it nonetheless had other constitutionally sound mechanisms at its disposal to protect the public from Rahimi’s violent tendencies prior to his criminal conviction.

For example, prosecutors could have fought to keep Rahimi detained in jail while awaiting trial or could have made disarmament a condition of his pretrial release.

4. The Supreme Court upheld the statute, but left the door open for future challenges.

This is the context in which the Supreme Court upheld § 922(g)(8) against Rahimi’s challenge.

Like the 5th Circuit, the Supreme Court analyzed common law prohibitions on using weapons to harm or menace others, as well as the development of so-called “surety laws” and “going armed” laws. The majority, however, found that these historical laws sufficiently created a national tradition that, since the time of the Founding, has enabled the government to disarm individuals who pose a clear threat of physical violence to others.

Moreover, § 922(g)(8) is relevantly similar to historical laws—as the Bruen test requires—in that it requires a judicial finding of dangerousness prior to disarmament, imposes disarmament that is limited in duration, and allows the government to imprison those who violate the condition of disarmament.

The Supreme Court majority faulted the 5th Circuit for essentially requiring an “historical twin” instead of an “historical analogue.” It reasoned that just as prior precedent affirmed that the Second Amendment’s reach isn’t limited only to those arms in existence at the Founding, it also permits more than regulations identical to those that existed in 1791, the year Congress ratified the Second Amendment.

The high court also criticized the 5th Circuit for incorrectly applying its precedents regarding facial challenges. Because Rahimi challenged the statute as facially unconstitutional, he had to “establish that no set of circumstances exists under which [§ 922(g)(8)] would be valid.”

The lower court focused too narrowly on hypothetical scenarios that might, in other cases, raise constitutional concerns, and failed to consider how the statute is constitutional as applied to the facts of Rahimi’s own case.

5. Rahimi isn’t a disaster—it’s more of a draw.

There is plenty of reason for Second Amendment advocates to see Rahimi as more of a draw than a loss, although certain aspects of how the Supreme Court majority came to this conclusion likely will be intentionally or recklessly misused by the same lower courts that have misused Heller, McDonald, and Bruen to uphold gun control laws consistently in much less complicated cases.

First, the majority opinion is quite narrow. The high court determined only that § 922(g)(8) is constitutional as applied to Rahimi, under circumstances in which no reasonable person doubts that a judge could (indeed, should) make a fact-based finding that Rahimi poses a credible threat of violence to others.

The majority explicitly left open future challenges to the second and more concerning basis for disarmament under § 922(g)(8)—the issuance of a restraining order that merely prohibits a person from using or threatening to use physical force against the protected party without any judicial inquiry into whether the person in fact poses a credible threat of violence.

In addition, there’s significant room to challenge restraining orders (or other, similar types of disarmament measures, such as red flag laws) imposed via processes that lack sufficient due process safeguards.

Second, the Supreme Court majority explicitly rejected one of the government’s more concerning arguments—that it could disarm Rahimi merely because it deemed him “irresponsible.” The historical tradition rests upon a much more limited and objective basis: whether a person poses a violent threat.

Third, nothing in the Rahimi case suggests that the Supreme Court is interested in rolling back core assertions made in prior Second Amendment cases. Quite the opposite.

The majority reiterated, among other things, that regulations such as surety laws are not a historical analogue for broad prohibitions affecting ordinary, nonviolent citizens, and that the Second Amendment’s reach isn’t limited to guns existing at the time of the Founding.

And all four of the conservative justices who joined the majority opinion wrote separate concurrences that pretty significantly ameliorate any potential concerns over their future Second Amendment jurisprudence.

Justice Neil Gorsuch, for example, criticized the “government always wins” approach taken by many lower courts prior to the Bruen decision, while Justice Brett Kavanaugh defended Bruen’s emphasis on text, history, and tradition from attacks launched by justices who dissented (or would have dissented) in that case.

These are all good indications that, even if the Supreme Court is skittish about striking down laws aimed at disarming clearly violent people such as Rahimi, it remains committed to vindicating the rights of ordinary, law-abiding citizens.

Hopefully, the next Second Amendment case to make its way back to the high court features plaintiffs more along the lines of Dick Heller and Otis McDonald, and less like Zackey Rahimi.

This article was published by The Daily Signal and is reproduced with permission.

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