The U.S. Supreme Court upheld a federal law Friday banning firearm possession by people accused of committing domestic abuse, the first Second Amendment case to reach the court since its 2022 ruling expanding the right to carry guns outside one's home. (AP Photo/Mariam Zuhaib)
Although the modern law lacks an exact historical match, Chief Justice John Roberts wrote for the majority that its similarity to past regulations disarming dangerous people helped it pass the court's test established in its landmark 2022 ruling in New York State Rifle & Pistol Association v. Bruen
, which expanded the right to carry guns outside one's home."The law must comport with the principles underlying the Second Amendment, but it need not be a 'dead ringer' or a 'historical twin,'" Chief Justice Roberts wrote.
Laws from the late 1700s prohibiting individuals from using firearms under the threat of fines and enabling the government to confiscate an individual's gun if they threatened another with it or carried it in certain protected public areas proves the Second Amendment's framers wanted to protect the public from dangerous people, the chief said.
"Taken together, the … laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed," he said.
Justice Clarence Thomas was the sole dissenter to Friday's opinion, arguing the modern law is unconstitutional under the Bruen test because "not a single historical regulation justifies the statute at issue." He also criticized the majority for "mixing and matching" the various laws it cited to support its argument.
"The question before us is whether a single historical law has both a comparable burden and justification as 922(g)(8), not whether several laws can be cobbled together to qualify," Justice Thomas said.
Friday's decision was the first time the Supreme Court has applied its Bruen test to a case. The federal government asked the court in March 2023 to reverse a Fifth Circuit decision that applied the strictest reading of the test to Rahimi's constitutional challenge.
A Fifth Circuit panel in February 2023 sided with Rahimi, who was appealing his conviction for violating his domestic violence restraining order, ruling the federal statute "fails to pass constitutional muster."
While the Supreme Court's ruling helps curb the Fifth Circuit's strict application of Bruen and to clarify how strictly the test should be applied in Second Amendment cases, it left several questions still unanswered, including how similar modern and historical laws must be to pass the test, lawyers said.
"It does help the lower courts to apply Bruen," Amy Starr, Davis Polk & Wardwell LLP's chief pro bono counsel, said. "But there are plenty of questions left unanswered."
The majority fully rejected the historical twin analysis used by Justice Thomas and the Fifth Circuit when it struck down the modern day statute in February 2023. While Chief Justice Roberts wrote such an analysis misunderstands the court's prior rulings and improperly traps them "in amber," he also didn't provide an alternative for courts to use.
That may be because the majority couldn't decide on one test.
"Chief Justice Roberts threaded a difficult needle and got eight votes by playing it very straight and narrow," Robert Leider, an assistant professor at George Mason University's Antonin Scalia School of Law, said.
The exact contours of the proper Bruen test, however, will be sculpted through several years of future litigation, Leider said.
Chief Justice Roberts wrote for the majority that courts should determine whether a modern law is "relevantly similar" to the country's tradition of regulating firearms, but five concurrences to Friday's opinion shows each justice seems to have their own definition of the term.
Justice Amy Coney Barrett noted that historical regulations "reveal a principle, not a mold," and that the principle should be a court's guiding light in Second Amendment cases.
"To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart," she said. "Besides, imposing a test that demands overly specific analogues has serious problems."
Justice Sonia Sotomayor authored a concurring opinion, joined by Justice Elena Kagan, stating she was still "troubled" by the court's 6-3 decision in Bruen, from which she dissented, but that Friday's ruling clarifies the test in a helpful way.
"In short, the court's interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding," Justice Sotomayor wrote.
Justice Ketanji Brown Jackson wrote separately but agreed with her liberal colleagues that "there are miles to go" in this area of law.
"Meanwhile, the rule of law suffers," she said. "That ideal — key to our democracy — thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruen's history-focused test ticks none of those boxes."
On the other hand, Justices Neil Gorsuch and Brett Kavanaugh each wrote individual concurrences about what roles text, history and precedent should play in a court's analysis.
"As judges charged with respecting the people's directions in the Constitution — directions that are 'trapped in amber' — our only lawful role is to apply them in the cases that come before us," Justice Gorsuch wrote. "Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide."
Rahimi was indicted in April 2021 after police found firearms and ammunition in his home while he was bound by a restraining order for knocking his girlfriend to the ground during a fight in a parking lot.
Using legal arguments that served as precursor to those embraced by the Supreme Court in Bruen, Rahimi moved to dismiss his indictment by saying the law was unconstitutional either under the existing two-step framework that balanced the constitutional rights of individuals to bear firearms and the government's interests to regulate possession, or, more ambitiously, under a historical analysis of the regulation.
On June 3, 2021, however, the U.S. District Court for the Northern District of Texas shot down Rahimi's attempt to escape prosecution, citing a 2020 ruling by the Fifth Circuit in United States v. McGinnis
that had found the gun ban for domestic abusers constitutional. A year later, the Fifth Circuit affirmed the district's court ruling in an unsigned opinion.But Rahimi got a big legal break 15 days later, when the Supreme Court rendered its decision in Bruen.
In the majority opinion by Justice Clarence Thomas axing New York state's gun licensing regime, the high court replaced the government means-ends test, which had been used since the right of private citizens to carry guns in self-defense was recognized in the 2008 case District of Columbia v. Heller
, with a new legal framework focusing on the history and tradition of gun regulations.The ruling served as a tectonic shift in firearm jurisprudence, inviting myriad legal challenges to existing federal and state gun regulations across the country, and sowing confusion across lower courts about how exactly to implement the new guidance.
Riding that wave and bolstered by Bruen's ruling, Rahimi renewed his challenge to the domestic abuser ban. This time, in February 2023, a Fifth Circuit panel embraced his arguments.
In a majority authored by U.S. Circuit Judge Cory T. Wilson, the Court of Appeals found that although Rahimi was "hardly a model citizen" — he was involved in five shootings in and around Arlington, Texas, after receiving a restraining order for assaulting his ex-girlfriend — Section 922(g)(8) "fails to pass constitutional muster."
Federal prosecutors appealed that ruling to the Supreme Court in March 2023, arguing that, dating back to the Revolutionary War, the federal government had exercised power to disarm people deemed "dangerous, irresponsible, or otherwise unfit to possess arms," and that the Second Amendment had never prevented states in the 19th century from enacting laws to keep firearms out of the hands of children, intoxicated people and vagrants.
In its certiorari petition, the government said the presence of a gun in a house with a domestic abuser increases the risk of homicide sixfold.
Data reported by law enforcement agencies across the country and compiled by the Bureau of Justice Statistics indicate that, in 2021, 34% of female murder victims were killed by an intimate partner. By comparison, about 6% of males murdered that year were victims of intimate partner homicide.
According to the National Intimate Partner and Sexual Violence Survey, an ongoing government survey that gathers national and state-level data on domestic violence in the United States, 20 people every minute are subjected to physical violence by an intimate partner across the country.
In its briefs, the government told the Supreme Court it needs to retain the power to disarm people it deems dangerous.
The Rahimi case immediately became a blockbuster, and one of the most closely watched in the current term. Since the petition for certiorari was filed, a total of 67 friend-of-the-court briefs have been filed on either side of the dispute, a sign that the issue of disarming domestic abusers spilled well beyond the docket and touched a nerve in the public discourse.
Notable briefs include those of gun violence and domestic abuse prevention groups, large municipalities such as New York City, prosecutors and Second Amendment scholars that supported the U.S. government's argument for restricting gun possession by people who have been found by courts to present a danger to intimate partners or children. Gun rights advocates and lobby groups such as the National Rifle Association, on the other hand, piled up in support of Rahimi.
While the parties geared up for the fight, challenges to other provisions of federal law prohibiting firearm access to groups such as unauthorized immigrants, people convicted of felonies, and drug users have continued to simmer in the lower courts.
Through their questioning during oral arguments in November, Supreme Court justices expressed reservations about the soundness of Fifth Circuit's ruling, suggesting that the lower court misapplied the Bruen test when it said there were no comparable Founding Era gun regulations that could legally justify the existence of the current domestic abuser ban.
During the roughly 90-minute arguments, U.S. Solicitor General Elizabeth B. Prelogar and the federal public defender representing Rahimi sparred over the concept of danger and touched on other groups that have been barred from possessing firearms in the modern era.
Prelogar argued that, in accordance with Second Amendment's history and tradition, the government has the power to disarm people who, like Rahimi, are not "law-abiding and responsible." She also argued that the fact that no analogous domestic violence-related law existed around the time the Second Amendment was enacted didn't make the current law unconstitutional.
During the arguments, Justice Ketanji Brown Jackson criticized the Bruen decision itself, saying its legal test has been applied to a whitewashed version of the Founding Era's history of gun regulation by leaving out prohibitions for groups of people considered dangerous or disfavored at the time, including freed slaves and Native Americans.
The U.S. government was represented by Elizabeth B. Prelogar of the U.S. Department of Justice.
Rahimi was represented by James Matthew Wright of the Office of the Federal Public Defender.
The case is United States v. Zackey Rahimi, case number 22-915, in the Supreme Court of the United States.
--Additional reporting by Katie Buehler and Lilyanna D'Amato. Editing by Michael Watanabe.
Update: This story has been updated to include more information from the opinion and additional comments.