By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
In this column in the March–April 2023 issue (“Get ready for the fallout from U.S. v. Rahimi and Bruen”[1]), I discussed the sea change to Second Amendment jurisprudence in New York State Rifle & Pistol Association Inc. v. Bruen[2] and the U.S. Fifth Circuit’s subsequent declaration in United States v. Rahimi[3] that the federal ban on the possession of firearms by those under a domestic violence protective order was unconstitutional. At that time there were several dozen post-Bruen opinions analyzing federal gun regulations and many more pending in litigation; several of those opinions expressed concern over the lack of guidance in the lower courts as to the correct application of Bruen. On June 21, 2024, the U.S. Supreme Court issued its opinion reversing the Fifth Circuit in Rahimi, giving the courts (and us) a little more much-needed guidance.
Background
Zackey Rahimi was involved in five shootings in and around Arlington between December 2020 and January 2021, including shooting into the residence of person to whom he had sold narcotics, shooting at another driver after a collision, and then fleeing (then returning in a different vehicle and shooting again at the other driver’s car), shooting at a constable’s car, and shooting into the air after his friend’s credit card was declined at Whataburger (later charmingly described by Chief Justice Roberts as a “roadside burger restaurant”). Arlington police identified Rahimi as a suspect in the shootings and executed a warrant on his home, where they found a rifle, a pistol, and a copy of a Texas state court civil protective order for an allegation of assault family violence, the terms of which expressly prohibited him from the possession of a firearm, which was[4] a federal crime.
Federal prosecutors then indicted Rahimi for possession of a firearm while under a domestic violence restraining order in violation of 18 U.S.C. §922(g)(8). Rahimi moved to dismiss the federal indictment on the ground that §922(g)(8) is unconstitutional, while acknowledging that then-existing caselaw in the Fifth Circuit had expressly held otherwise.[5] The federal district court denied his motion to dismiss, and a Fifth Circuit panel upheld that denial based on that court’s precedent.[6]
Only 15 days after the Fifth Circuit issued its first opinion in Rahimi’s case, the U.S. Supreme Court handed down its opinion in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen. Justice Thomas, writing for the majority, held that requiring a showing of special need for a firearm is unconstitutional and that the government’s regulation must be “consistent with this Nation’s historical tradition of firearm regulation,” meaning at the time of the Second Amendment’s adoption in 1791 and the Fourteenth Amendment’s adoption in 1868. The Fifth Circuit granted rehearing to reconsider Rahimi’s case in light of Bruen and found that there was no historical analogue for §922(g)(8), concluding that it was an “outlier that our ancestors would never have accepted.” The statute was declared unconstitutional, and Rahimi’s conviction was vacated. The Department of Justice petitioned for writ of certiorari to the U.S. Supreme Court.
As the judges saw it
The U.S. Supreme Court reversed in an 8–1 ruling. Writing for the majority, Chief Justice Roberts held that the lower court had misapplied precedent involving facial constitutionality challenges and that §922(g)(8) had historical analogues in English and 18th-Century American law. These included surety laws, such as requiring a bond to carry a weapon whenever there was a “probable ground to suspect of future misbehavior,” and State statutes codifying the ancient common law offense of “going armed to terrify the King’s subjects,” which Roberts noted “disrupted the public order and led almost necessarily to actual violence. … The law punished these acts with forfeiture of the arms and imprisonment.” The Fifth Circuit had rejected these laws as insufficiently similar to the regulation at hand, but the Supreme Court held that that view was too rigid, saying Bruen required only a historical analogue, not a historical twin. As Chief Justice Roberts put it, Second Amendment jurisprudence is not “trapped in amber.” Historical surety laws and going-armed laws did not broadly restrict the public generally but applied only once a court had found that an individual “represents a credible threat to the physical safety” of another, which is explicitly what §922(g)(8)(C)(i) says in the statutory text. Roberts reasoned that if violating surety and going-armed laws could result in imprisonment, then the lesser restriction of temporary disarmament under §922(g)(8) is historically permissible as well.
Chief Justice Roberts concluded that the majority had “no trouble” concluding that §922(g)(8) survives Rahimi’s facial challenge and that “our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.” The holding was largely limited to the facts and the statute in question, and that was likely intentional on Chief Justice Roberts’s part. Keeping the opinion tied tightly to the facts of the case rather than making a broad and expansive statement on Second Amendment jurisprudence allowed eight judges in the majority to sign onto something they all found palatable. Accordingly, there’s perhaps more “meat on the bone” to be found in the concurrences and dissent.
Concurrences
Justice Sotomayor concurred, joined by Justice Kagan. Although she disagreed with the holding of Bruen, she agreed with the majority that Bruen required a finding that the challenged law must comport with the principles underlying the Second Amendment rather than a precise historical match. Although §922(g)(8) is by no means identical to surety and going-armed laws, it restricts firearm use to mitigate demonstrated threats of physical violence just as those laws did, and that shared principle is sufficient. She criticized the dissent’s rigid view of what is required under Bruen, saying that the majority view was preferable as it “permits a historical inquiry calibrated to reveal something useful and transferable to the present day.”
Justice Gorsuch also concurred. While he agreed that the challenged law need not be a “dead ringer” for some historical analogue, he also expressed some agreement with Justice Thomas’s dissenting opinion regarding how comparable the analogue needed to be. Nevertheless, in his opinion the outcome here was exactly what Bruen mandated. Gorsuch places much of his reasoning on the fact that Rahimi raised a facial challenge to the law which requires a showing that the law, violates the Second Amendment in all applications, which the Court has called the “most difficult challenge to mount successfully.”[7]
Justice Barrett’s concurrence is of particular interest to us in defending the constitutionality of firearm regulations. She cited Justice Scalia’s opinion in District of Columbia v. Heller[8] in saying that the Second Amendment codified both a pre-existing right and pre-existing limits on that right. She noted the difficulty that lower courts have had in applying Bruen and stated that the problem was one of generality, i.e., whether courts must find a “founding era relative” (“if not a twin, a cousin”) of the modern regulation, or whether they must determine whether founding-era gun regulations yield concrete principles that may be discerned. In her opinion many of the lower courts, including the Fifth Circuit, incorrectly used the narrower first approach, which both forces 21st-Century regulations to use an 18th-Century approach and assumes that the founders used their regulatory powers to the maximum in a “use it or lose it” mentality. In her view the latter was what Bruen required; analogical reasoning requires that historical regulations reveal a principle, not a mold.
Justice Kavanaugh wrote a lengthy concurrence to address the proper roles of text, history, and precedent in constitutional analysis. In his opinion text controls, but when problems arise in interpreting vague constitutional texts, history rather than policy should guide the courts. Here he looked to not only the pre-ratification history of the regulation in question, but also to the post-ratification history, i.e., the “collective understanding of Americans who, over time, have interpreted and applied the broadly worded constitutional text.” He defended the validity of looking to post-ratification history by citing caselaw from over two centuries engaging in and endorsing the practice.[9] Justice Kavanaugh’s concurrence is a reminder of the continuing relevance of historical precedence and is worth remembering when citing to those older cases.
Justice Jackson concurred, saying that she disagreed with and would have dissented in Bruen, but that the Court’s opinion was a correct application of that case and that she accordingly joined the majority. She wrote separately to address the difficulty that the lower courts have had in applying Bruen and that the Court should be aware of the difficulty faced by the judges on the ground in assessing workable legal standards. As she put it, “Make no mistake: Today’s effort to clear up ‘misunderst[andings],’ is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.” To that end she cited over a dozen opinions from lower courts in which judges expressed their frustration and confusion over the correct application of Bruen.[10] Although she agreed with the Court’s application of Bruen in this case, she reminded the Court that both legislatures and the public deserve workable standards and clarity.
The dissent
Justice Thomas, who wrote the majority opinion in Bruen, was the lone dissent. He stated that the directive in Bruen was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the nation’s historical tradition of firearm regulation, and none of the historical regulations proffered are sufficiently similar to §922(g)(8). He noted that states already have criminal prosecution as a mechanism for disarming anyone who uses a firearm to threaten physical violence, but the question here is whether the government may disarm anyone subject to a protective order even if he had never been accused or convicted of a crime. Having found no historical analogue for revoking a citizen’s Second Amendment right based on the possibility of violence against another person, he would find the law unconstitutional.
The takeaway
The Fifth Circuit gives us an example of how courts are moving forward in light of Rahimi in United States v. Diaz,[11] issued on September 18, 2024. Diaz was convicted in federal district court for felon in possession of a firearm under 18 U.S.C. §922(g)(1), and raised both facial and as-applied constitutional challenges to that law. Other circuits, such as the Eleventh Circuit Court of Appeals,[12] had simply held per curiam that the late Justice Scalia’s “felons and the mentally ill” language in Heller settled the matter. The U.S. Attorney’s Offices argued here that that language could begin and end the court’s inquiry,[13] but the Fifth Circuit disagreed, holding that Scalia’s language was mere dicta and that Rahimi required a full historical analysis. Echoing Roberts’s language that a lesser restriction than the law allowed at the time of the Constitution’s passage is historically permissible, the court noted that “those convicted of horse theft—likely the closest colonial-era analogue to vehicle theft—were often subject to the death penalty.”[14] Because the theft crime Diaz was convicted of would have led to capital punishment or estate forfeiture, “Disarming Diaz fits within this tradition of serious and permanent punishment.”[15]
The Court’s decision in Rahimi addresses some of the concerns voiced in my earlier column from the March–April 2023 issue, the opinions of lower courts applying Bruen, and Justice Jackson’s concurrence, but certainly not all. It is a step in the right direction, but only a step for now. For those constitutional challenges we see arising in the meantime, remember to look to how those arguments are playing out in the lower state and federal courts.
[1] www.tdcaa.com/journal/get-ready-for-the-fallout-from-u-s-v-rahimi-and-bruen.
[2] 142 S.Ct. 2111 (2022).
[3] 61 F.4th 443 (5th Cir. 2023), rev’d, 144 S.Ct. 1889 (2024).
[4] That is to say it was a federal crime, then it wasn’t a federal crime, and now it is again.
[5] United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020).
[6] United States v. Rahimi, No. 21-11001, 2022 WL 2070392 (5th Cir. June 8, 2022) (opinion withdrawn).
[7] United States v. Salerno, 481 U.S. 739, 745 (1987).
[8] 554 U.S. 570 (2008). Justice Barrett refers here to Justice Scalia’s observation that the historical understanding that the pre-existing right to keep and bear arms was limited to those weapons in common use by militias at the time. Id. at 624-627 (citing United States v. Miller, 307 U.S. 174, 179 (1939)). Justice Scalia went on to say that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626-27.
[9] In so doing Justice Kavanaugh created perhaps the longest string cite in modern U.S. Supreme Court history, comprising 32 case citations. It is a thing of beauty.
[10] Among those opinions cited is Judge Higginson’s concurrence in United States v. Daniels, 77 F.4th 337, 356-62 (5th Cir. 2023), which eloquently laid out the difficulties of the lower courts in applying Bruen and the “uncertainty and upheaval resulting from best efforts to apply Bruen [that] now extend far beyond our dockets.”
[11] 116 F.4th 458 (5th Cir. 2024).
[12] See Diaz, 116 F.4th 458 n.2 (citing United States v. Rambo, No. 23-13772, 2024 U.S. App. LEXIS 18375, 2024 WL 3534730, at *2 (11th Cir. July 25, 2024) (per curiam); United States v. Young, No. 13-10464, 2024 U.S. App. LEXIS 17801, 2024 WL 3466607, at *9 (11th Cir. July 19, 2024) (per curiam); United States v. Johnson, No. 23-11885, 2024 U.S. App. LEXIS 16932, 2024 WL 3371414, at *3 (11th Cir. July 11, 2024) (per curiam).
[13] One of the few Texas state court cases to thus far address a constitutional challenge post-Rahimi, In re Ex Parte Strickland, No. 12-24-00031-CR, 2024 Tex. App. LEXIS 7355 (Tex. App.—Tyler Oct. 9, 2024, no pet. h.) (mem. op.) (op. on re’hg), also relied on Heller and Bruen in finding that a felon was not a “law-abiding, responsible citizen,” and went on to hold that surety and going-armed laws justified the disarming of felons.
[14] Citing Crime and Reform in Post-Revolutionary Virginia, 1 Law & Hist. Rev. 53, 73 (1983)).
[15] Because Diaz’s as-applied challenge failed, his facial challenge failed as a matter of law.