By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
If you’ve seen one of my CLE presentations, you’ve probably figured out that I like memes. One of my favorites involves an imaginary conversation with one’s anxiety:
Anxiety: Get ready.
Me: What?
Anxiety: Get ready.
Me: Ready for what?
Anxiety: I don’t know, just get ready.
That’s a pretty good metaphor for Second Amendment jurisprudence landscape in the wake of the U.S. Supreme Court’s opinion in New York State Rifle & Pistol Association Inc. v. Bruen[1] and the Fifth Circuit’s opinion in United States v. Rahimi.[2] Major changes are coming to the constitutionality of firearm legislation and regulation, but it’s still anyone’s guess where and how far reaching those changes will be.[3]
Background
Zackey Rahimi was involved in five shootings in and around Arlington, Texas, between December 2020 and January 2021, including shooting into the residence of an individual to whom he had sold narcotics; shooting at another driver after a wreck, fleeing, 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 (I am not making that last one up). Arlington police identified Rahimi as a suspect in the shootings and executed a warrant on his home, where they found a rifle and a pistol. Rahimi was at that time under 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 is (or was) 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.[4] The federal district court unsurprisingly denied his motion to dismiss, and a Fifth Circuit panel unsurprisingly upheld that denial based on that court’s precedent.[5] That’s when the surprises started happening.
Bruen and the U.S. Supreme Court
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,[6] which saw a sea change in Second Amendment jurisprudence. Bruen involved a constitutional challenge to New York State’s handgun carry licensure scheme. In 43 “shall issue” states, the state government issues licenses to carry handguns in public based on the satisfaction of certain threshold requirements; if the applicant meets those requirements, the state shall issue the license without regard to need or suitability. In six states, however, the State government makes issuance conditional on some further showing of the applicant’s special need for a handgun. New York was one of the latter states, issuing only when the applicant demonstrated some special need for self-defense, which was there termed a “proper-cause” requirement. The petitioners were New York residents who did not claim any special need.
Since the U.S. Supreme Court’s decision in District of Columbia v. Heller,[7] most lower courts had applied Heller’s two-step inquiry to determine the constitutionality of a particular law. First, courts asked whether the challenged law burdens conduct protected by the Second Amendment. If it did, courts analyzed whether the law was constitutuional utilizing a type of means-end scrutiny, which varied depending on what degree the law burdened the “core” historical right of self-defense.
The majority opinion of Justice Thomas, joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett, declined to adopt that two-part approach, holding instead that:
when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’
Using this approach, Justice Thomas found that the right to bear arms in public was within the plain text of the Second Amendment, and that the burden fell to New York to show that the “proper cause” requirement was 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. After a dizzying historical analysis spanning from the 13th to 20th Centuries, Justice Thomas and the majority concluded that the respondents for the State of New York had not met their burden to identify a historic American tradition justifying the State’s proper-cause requirement.
The dissenting opinion of Justice Breyer, joined by Justices Sotomayor and Kagan, took issue with the majority deciding the issue on the basis of pleadings without a developed evidentiary record, limiting the analysis almost exclusively to history, “refus[ing] to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be” (citing gun violence statistics intended to demonstrate that compelling interest), and failing to identify and analyze the relevant historical facts, which Justice Breyer said “ignores abundance of historical evidence supporting regulations restricting the public carriage of firearms.”[8]
As the Fifth Circuit Saw It
So back to the Fifth Circuit. A rehearing in Rahimi was held by a new panel, consisting of Judges Cory T. Wilson, Edith Jones, and James C. Ho. Attorneys for the U.S. Attorney’s Office for the Northern District of Texas and the Department of Justice agreed that Bruen changed the analysis but not the outcome. They argued that the conduct burdened by §922(g)(8) did not fall within the scope of the Second Amendment right as it was articulated under both Heller and Bruen, “which protects only the right of law-abiding, responsible citizens[9] to possess firearms for self-defense” (emphasis in the Government’s brief), and cited a long tradition both in England and the United States of prohibiting firearm possession by those who pose a threat to the community or to others’ safety.[10] The Court found that this argument failed because:
1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment,
2) it treats Second Amendment rights differently from other individually held rights, and
3) it has no limiting principles.[11]
That brought the court to the crux of the historical analysis under Bruen: whether Rahimi’s conduct ran afoul of a “lawful regulatory measure” “prohibiting … the possession of firearms” that is consistent with “the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Under this analysis, the Government must show similar historical regulations that imposed a comparable burden that was comparably justified, preferably from the era closest to the Second Amendment’s enactment. The Government proffered multiple regulations, which included the Militia Act of 1662, the laws of several colonies and States which disarmed certain classes of people deemed dangerous, two proposed (but unadopted) amendments that emerged at State conventions on ratifying the Constitution, surety laws requiring a bond to carry a weapon, and four state statutes codifying the ancient common law offense of “going armed to terrify the King’s subjects.” All were found to lack relevant similarity to the regulation at hand.
Having rejected all of the Government’s proffered historical analogues, the Fifth Circuit concluded that §922(g)(8)’s ban on possession of firearms is an “outlier that our ancestors would never have accepted,” that the statute is unconstitutional, and that Rahimi’s conviction must be vacated. On February 2, 2023, United States Attorney General Merrick B. Garland issued a public statement that the Department of Justice would seek further review,[12] likely a rehearing en banc and petitioning the U.S. Supreme Court.
What’s this mean for the rest of us?
Here’s the tricky part: We know for certain after Bruen and Rahimi that state firearm regulations predicating handgun carry licenses on a showing of special need like New York’s are unconstitutional, as are statutes criminalizing the possession of firearms by persons subject to domestic violence civil restraining orders such as 18 U.S.C. §922(g)(8), but it’s very difficult to predict where we’ll go next.
• A U.S. District Court in Fort Worth found a Texas law prohibiting carrying of handguns outside the home by 18- to 20-year-olds unconstitutional after Bruen in Firearms Policy Coalition, Inc. v. McCraw,[13] and the Department of Public Safety withdrew its appeal to the Fifth Circuit after Rahimi was issued.
• Another case in the U.S. Third Circuit Court of Appeals challenging a different subsection of the same statute as Rahimi went the other direction: In Range v. Att’y Gen. United States,[14] the court upheld 18 U.S.C. §922(g)(1), which criminalizes possession of a firearm by a felon (in that case a nonviolent felon who had committed welfare fraud). At least three federal district courts in Texas also upheld §922(g)(1) against facial or as-applied challenges: United States v. Banuelos,[15] United States v. Jordan,[16] and Shipley v. Hijar.[17] A number of other federal district court courts have held the same,[18] frequently citing Justice Scalia’s admonition in Heller that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”[19]
• In Rigby v. Jennings,[20] a federal district judge in Delaware cited Bruen in striking down provisions of Delaware’s new law that prohibited distribution, possession, and manufacturing of unserialized firearms, aka “ghost guns.”
• However, in Nat’l Ass’n for Gun Rights, Inc. v. City of San Jose,[21] a federal district judge in California relied on the historical analogue of surety laws (used to require an armed person to post a bond for firearm possession if there was “reasonable cause” to fear the person would cause injury or breach the peace) to uphold a municipal requirement that gun owners procure and maintain firearms liability insurance.
• In United States v. Quiroz,[22] a federal district judge in Texas dismissed a charge against a defendant who received (by purchasing) a firearm while under felony indictment, finding that 18 U.S.C. §922(n) was facially unconstitutional under Bruen. Quiroz is on appeal to the Fifth Circuit as of this writing. Three other federal district courts in Oklahoma, Tennessee, and Indiana have followed the same reasoning in Quiroz and held §922(n) unconstitutional;[23] three district courts in Oklahoma, Tennessee, and New York have gone the other direction and held §922(n) constitutional.[24]
• In United States v. Price,[25] a federal district court in West Virginia found that the historical record supported criminalization of possession of a firearm by a convicted felon, 18 U.S.C. §922(g)(1), but did not support criminalization of possession of a firearm with an altered or obliterated serial number, 18 U.S.C. §922(k).
• A Northern District of Texas court declined to follow Price in United States v. Holton,[26] saying that requiring serial numbers restricted only the manner in which a person may keep and bear arms, not on the right or ability to do so. That court criticized the holding in Price, saying that “between the Price court’s expansive interpretation of ‘possession’ and its rigid interpretation of history, it is hard to imagine what gun laws would not fall within Second Amendment protection.”
• A Maryland federal district court also declined to follow Price in United States v. Tita,[27] citing Holton and also finding that requiring a serial number does not impede one’s ability to appropriately use a gun for self-defense.
That’s just a sampling, and it’s by no means exhaustive. Footnote 4 in the federal district court case of United States v. Butts[28] (upholding 18 U.S.C. §922(g)(1), possession of a firearm by a felon) lists almost 30 post-Bruen opinions analyzing federal gun regulations; these particular cases all upheld the regulations in question, but the story is far from over. As of this writing, no fewer than 50 federal cases challenging the constitutionality of various firearm laws are pending around the country, and more are sure to follow. It seems likely that our own state courts will be watching the federal courts closely before jumping in too deeply.
One question of immediate import is to what degree Bruen will affect firearms restrictions as part of pretrial conditions of release. A federal district court has held that a person charged with a crime based on a finding of probable cause is not “law abiding” and the aforementioned surety statutes are a historical analogue to support a pretrial release restriction on the possession of firearms, in United States v. Perez-Garcia,[29] and that case is currently pending appeal to the Ninth Circuit. At least three other federal district court cases have made the same holding within just the last two months,[30] but as you can tell from the above discussion, this is a fast-moving and rapidly changing area of the law; many of the opinions discussed are only weeks old, or even days old. Only time will tell how everything plays out, so stay tuned.
Endnotes
[1] 142 S.Ct. 2111 (2022).
[2] No. 21-11001, __F.4th__, 2023 U.S. App. LEXIS 2693 (5th Cir. Feb. 2, 2023)
[3] My devotion to TDCAA is so great that I’m writing on Super Bowl Sunday instead of watching the game. Are you ready for some endnotes?
[4] United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020).
[5] United States v. Rahimi, No. 21-11001, 2022 WL 2070392 (5th Cir. June 8, 2022) (opinion withdrawn).
[6] 142 S.Ct. 2111 (2022).
[7] 554 U.S. 570 (2008).
[8] 142 S.Ct. at 2164 (2022).
[9] Both Heller and Bruen make reference to “law-abiding, responsible citizens” in describing the Second Amendment’s reach; Bruen adds “ordinary, law abiding citizens.” Rahimi at 8.
[10] U.S. v. Rahimi, No. 21-11001, “Supplemental Brief for Appellee the United States,” pp. 6, 21-32, filed August 9, 2022.
[11] No. 21-11001, __F.4th__, 2023 U.S. App. LEXIS 2693 (5th Cir. Feb. 2, 2023). The Court here asks rhetorically if speeders, political nonconformists, and people who do not recycle or drive electric vehicles could be similarly stripped of their Second Amendment rights.
[12] www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland-regarding-united-states-v-rahimi (retrieved February 10, 2023).
[13] 21-CV-1245, 2022 U.S. Dist. LEXIS 152834, 2022 WL 3656996, at *11 (N.D. Tex. Aug. 31, 2022).
[14] 53 F.4th 262 (3d Cir. 2022).
[15] No. 22-CR-00903, 2022 U.S. Dist. LEXIS 229948, 2022 WL 17752205, at *5 (W.D. Tex. Nov. 10, 2022).
[16] No. EP-22-CR-01140-DCG-1, 2023 U.S. Dist. LEXIS 4764, 2023 WL 157789 (W.D. Tex. Jan. 11, 2023).
[17] No. EP-23-CV-11-KC, 2023 U.S. Dist. LEXIS 9886, 2023 WL 353994 (W.D. Tex. Jan. 20, 2023).
[18] United States v. Moore, No. 3:20-CR-00474-IM-1, 2023 U.S. Dist. LEXIS 7018, 2023 WL 154588, at *6 (D. Or. Jan. 11, 2023) catalogues a number of cases that as of January 2023 have made the same holding as Range: United States v. Butts, No. CR 22-33-M-DWM, 2022 U.S. Dist. LEXIS 197925, 2022 WL 16553037 (D. Mont. Oct. 31, 2022); United States v. Carleson, No. 3:22-CR-00032-SLG, 2022 U.S. Dist. LEXIS 222626, 2022 WL 17490753 (D. Alaska Oct. 28, 2022); United States v. Siddoway, No. 1:21-CR-00205-BLW, 2022 U.S. Dist. LEXIS 178168, 2022 WL 4482739 (D. Idaho Sept. 27, 2022); United States v. Hill, No. 21CR107 WQH, 2022 U.S. Dist. LEXIS 170214, 2022 WL 4361917 (S.D. Cal. Sept. 20, 2022); see also Butts, No. CR 22-33-M-DWM at *4 n. 4, 2022 U.S. Dist. LEXIS 197925 (collecting cases). United States v. Martin, No. 2:21-cr-00068, 2023 WL 1767161, 2023 U.S. Dist. LEXIS 18413 (D. Vt. Feb. 3, 2023), released just days later, holds the same.
[19] 554 U.S. at 626.
[20] __ F.Supp.3d __, 2022 U.S. Dist. LEXIS 172375, 2022 WL 4448220 (D. Del. Sept. 23, 2022).
[21] ___ F. Supp. 3d ___, No. 22-00501, 2022 U.S. Dist. LEXIS 138385, 2022 WL 3083715 (N.D. Cal. Aug. 3, 2022).
[22] __ F.Supp.3d __, 2022 WL 4352482, 2022 U.S. Dist. LEXIS 168329 (W.D. Tex. Sep. 19, 2022).
[23] United States v. Stambaugh, No. 22 Cr. 218 (PRW), 2022 U.S. Dist. LEXIS 206016, 2022 WL 16936043 (W.D. Okla. Nov. 14, 2022); United States v. Holden, No. 22 CR. 30 (RLM), 2022 U.S. Dist. LEXIS 212835, 2022 WL 17103509 (N.D. Ind. Oct. 31, 2022) (relying on Quiroz), appeal docketed, No. 22-3160 (Dec. 1, 2022); United States v. Hicks, 2023 WL 164170 (W.D. Tex. Jan. 9, 2023), appeal docketed, No. 23-50030 (Jan. 12, 2023).
[24] United States v. Kays, No. 22 Cr. 40, 2022 U.S. Dist. LEXIS 154929, 2022 WL 3718519 (TDD) (W.D. Okla. Aug. 29, 2022); United States v. Kelly, No. 22 Cr. 37 (AAT), 2022 U.S. Dist. LEXIS 215189, 2022 WL 17336578 (M.D. Tenn. Nov. 16, 2022); United States v. Rowson, No. 22 Cr. 310 (PAE,), 2023 WL 431037, 2023 U.S. Dist. LEXIS 13832 (S.D.N.Y. Jan. 6, 2023). An unpublished Fifth Circuit case, United States v. Avila, No. 22-50088, 2022 U.S. App. LEXIS 35321, 2022 WL 17832287 (5th Cir. Dec. 21, 2022), declined to review §922(n) de novo and did not find plain error when the Second Amendment challenge was not raised in the lower court.
[25] No. 2:22-cr-00097, 2022 U.S. Dist. LEXIS 186571, 2022 WL 6968457 (S.D.W.Va. Oct. 12, 2022).
[26] No. 3:21-CR-0482-B, 2022 U.S. Dist. LEXIS 200327, 2022 WL 16701935 (N.D. Tex. Nov. 3, 2022).
[27] No. RDB-21-0334, 2022 U.S. Dist. LEXIS 231140 (D. Md. Dec. 22, 2022).
[28] Butts, No. CR 22-33-M-DWM at *4 n. 4, 2022 U.S. Dist. LEXIS 197925.
[29] No. 3:22-CR-01581-GPC, 2022 U.S. Dist. LEXIS 172157, 2022 WL 4351967, at *6 (S.D. Cal. Sept. 18, 2022).
[30] United States v. Slye, No. 1:22-mj-144, 2022 U.S. Dist. LEXIS 190502, 2022 WL 9728732 (W.D. Pa. Oct. 6, 2022); United States v. Fencl, No. 21-CR-3101 JLS, 2022 U.S. Dist. LEXIS 220973, 2022 WL 17486363 (S.D. Cal. Dec. 7, 2022), appeal docketed, No. 22-50316 (9th Cir. Dec. 21, 2022); United States v. Wendt, No. 4:22-cr-00199-SHL-HCA-1, 2023 U.S. Dist. LEXIS 7228, 2023 WL 166461 (S.D. Iowa Jan. 11, 2023).