United States v. Rahimi

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

February 2, 2023

No. 21-11001 Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Zackey Rahimi,

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:21-CR-83-1

Before Jones, Ho, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

The question presented in this case is not whether prohibiting the

possession of firearms by someone subject to a domestic violence restraining

order is a laudable policy goal. The question is whether 18 U.S.C.

§ 922(g)(8), a specific statute that does so, is constitutional under the Second

Amendment of the United States Constitution. In the light of N.Y. State Rifle

& Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district

court and a prior panel upheld the statute, applying this court’s pre-Bruen

No. 21-11001

precedent. See United States v. Rahimi, No. 21-11001, 2022 WL 2070392 at

*1 n.1 (5th Cir. June 8, 2022). Rahimi filed a petition for rehearing en banc;

while the petition was pending, the Supreme Court decided Bruen. The prior

panel withdrew its opinion and requested supplemental briefing on the

impact of that case on this one. Considering the issue afresh, we conclude

that Bruen requires us to re-evaluate our Second Amendment jurisprudence

and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We

therefore reverse the district court’s ruling to the contrary and vacate

Rahimi’s conviction.

I.

Between December 2020 and January 2021, Rahimi was involved in

five shootings in and around Arlington, Texas. 1 On December 1, after selling

narcotics to an individual, he fired multiple shots into that individual’s

residence. The following day, Rahimi was involved in a car accident. He

exited his vehicle, shot at the other driver, and fled the scene. He returned

to the scene in a different vehicle and shot at the other driver’s car. On

December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi

fired multiple shots in the air after his friend’s credit card was declined at a

Whataburger restaurant.

Officers in the Arlington Police Department identified Rahimi as a

suspect in the shootings and obtained a warrant to search his home. Officers

executed the warrant and found a rifle and a pistol. Rahimi admitted that he

possessed the firearms. He also admitted that he was subject to an agreed

civil protective order entered February 5, 2020, by a Texas state court after

Rahimi’s alleged assault of his ex-girlfriend. The protective order restrained

1

The facts are drawn from the Pre-Sentence Report, which the district court

adopted, and the factual resume, to which Rahimi stipulated.

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him from harassing, stalking, or threatening his ex-girlfriend and their child.

The order also expressly prohibited Rahimi from possessing a firearm. 2

A federal grand jury indicted Rahimi for possessing a firearm while

under a domestic violence restraining order in violation of 18 U.S.C.

§ 922(g)(8), which provides:

It shall be unlawful for any person[] who is subject to a court

order that[:] (A) was issued after a hearing of which such

person received actual notice, and at which such person had an

opportunity to participate; (B) restrains such person from

harassing, stalking, or threatening an intimate partner of such

person or child of such intimate partner or person, or engaging

in other conduct that would place an intimate partner in

reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible

threat to the physical safety of such intimate partner or child;

or (ii) by its terms explicitly prohibits the use, attempted use,

or threatened use of physical force against such intimate

partner or child that would reasonably be expected to cause

bodily injury . . . to . . . possess in or affecting commerce, any

firearm or ammunition . . . .

Rahimi moved to dismiss the indictment on the ground that § 922(g)(8) is

unconstitutional, but he acknowledged that United States v. McGinnis, 956

F.3d 747 (5th Cir. 2020), foreclosed his argument. 3 The district court denied

Rahimi’s motion, and he pled guilty.

2

The validity of the underlying protective order, and Rahimi’s breach of it, are not

before us.

3

The Government urged Rahimi’s argument was also foreclosed by United States

v. Emerson, 270 F.3d 203 (5th Cir. 2001).

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On appeal, Rahimi renewed his constitutional challenge to

§ 922(g)(8). 4 Rahimi again acknowledged that his argument was foreclosed,

and a prior panel of this court agreed. See Rahimi, 2022 WL 2070392 at *1

n.1. But after Bruen, the prior panel withdrew its opinion, ordered

supplemental briefing, and ordered the clerk to expedite this case for oral

argument before another panel of the court. Rahimi now contends that Bruen

overrules our precedent and that under Bruen, § 922(g)(8) is

unconstitutional. We agree on both points.

II.

Under the rule of orderliness, one panel of the Fifth Circuit “‘may not

overturn another panel’s decision, absent an intervening change in the law,

such as by a statutory amendment, or the Supreme Court, or our en banc

court.’” In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021)

(quoting Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).

The Supreme Court need not expressly overrule our precedent. “Rather, a

latter panel must simply determine that a former panel’s decision has fallen

unequivocally out of step with some intervening change in the law.” Id.

“One situation in which this may naturally occur is where an intervening

Supreme Court decision fundamentally changes the focus of the relevant

analysis.” Id. (internal quotation marks and alterations omitted). That is the

case here, as the Government concedes.

In Emerson, we held that the Second Amendment guarantees an

individual right to keep and bear arms—the first circuit expressly to do so.

4

Rahimi also asserted that the district court erred when it ordered his federal

sentence to run consecutively to sentences for his state crimes because the underlying

conduct of the state sentences was relevant conduct for the purposes of U.S.S.G. § 1B1.3.

The prior panel affirmed the district court. Because we find § 922(g)(8) unconstitutional

and vacate Rahimi’s sentence, we do not further address the sentencing issue here.

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270 F.3d at 260. But we also concluded that § 922(g)(8) was constitutional

as applied to the defendant there. Id. at 263. “Emerson first considered the

scope of the Second Amendment right ‘as historically understood,’ and then

determined—presumably by applying some form of means-end scrutiny sub

silentio—that § 922(g)(8) [wa]s ‘narrowly tailored’ to the goal of minimizing

‘the threat of lawless violence.’” McGinnis, 956 F.3d at 755 (quoting

Emerson, 270 F.3d at 264).

After D.C. v. Heller, 554 U.S. 570 (2008), courts coalesced around a

similar “two-step inquiry for analyzing laws that might impact the Second

Amendment.” McGinnis, 956 F.3d at 753 (internal quotation marks

omitted). First, we “ask[ed] whether the conduct at issue [fell] within the

scope of the Second Amendment right.” Id. at 754 (internal quotation marks

omitted). If the conduct fell outside the scope of the Second Amendment

right, then the challenged law was constitutional. Id. But if the conduct fell

within the scope of the right, then we proceeded to the second step of the

analysis, which applied either intermediate or strict scrutiny. Id. at 754, 757

(expressly applying means-end scrutiny). In McGinnis, this court upheld

§ 922(g)(8) using this two-step framework. The initial panel in this case did

likewise, citing McGinnis. Rahimi, 2022 WL 2070392 at *1 n.1.

Enter Bruen. Expounding on Heller, the Supreme Court held that

“[w]hen the Second Amendment’s plain text covers an individual’s conduct,

the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at

2129–30. In that context, the Government bears the burden of “justify[ing]

its regulation by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.” Id. at 2130. Put another way, “the

[G]overnment must affirmatively prove that its firearms regulation is part of

the historical tradition that delimits the outer bounds of the right to keep and

bear arms.” Id. at 2127. In the course of its explication, the Court expressly

repudiated the circuit courts’ means-end scrutiny—the second step

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embodied in Emerson and applied in McGinnis. Id. at 2128–30. To the extent

that the Court did not overtly overrule Emerson and McGinnis—it did not cite

those cases but discussed other circuits’ similar precedent—Bruen clearly

“fundamentally change[d]” our analysis of laws that implicate the Second

Amendment, Bonvillian Marine, 19 F.4th at 792, rendering our prior

precedent obsolete.

III.

Our review of Rahimi’s facial challenge to § 922(g)(8) is de novo. See

United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir. 1997). First, the court

addresses the Government’s argument that Rahimi is not among those

citizens entitled to the Second Amendment’s protections. Concluding he is,

we then turn to whether § 922(g)(8) passes muster under Bruen’s standard. 5

A.

According to the Government, Heller and Bruen add a gloss on the

Second Amendment that restricts its applicability to only “law-abiding,

responsible citizens,” Heller, 554 U.S. at 635, and “ordinary, law-abiding

citizens,” Bruen, 142 S. Ct. at 2122. Because Rahimi is neither responsible

nor law-abiding, as evidenced by his conduct and by the domestic violence

restraining order issued against him, he falls outside the ambit of the Second

5

The Government also argues that because Bruen endorsed “shall-issue” licensing

schemes, and Texas’s shall-issue licensing scheme (since modified to allow “constitutional

carry,” see 2021 Tex. Sess. Law Serv. Ch. 809 (West)) included the requirement that an

applicant not be under a domestic violence restraining order, it follows that § 922(g)(8) is

constitutional. Of course, the Bruen Court did not rule on the constitutionality of 43

specific state licensing regimes because that was not the issue before the Court. See Bruen,

142 S. Ct. at 2138 n.9. Rather, the Court merely blessed the general concept of shall-issue

regimes. Id.

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Amendment. Therefore, argues the Government, § 922(g)(8) is

constitutional as applied to Rahimi.

There is some debate on this issue. Compare Kanter v. Barr, 919 F.3d

437, 451–53 (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S.

Ct. 2111, with Binderup v. Att’y Gen. U.S., 836 F.3d 336, 357 (3d Cir. 2016)

(en banc) (Hardiman, J., concurring in part and concurring in the judgments).

As summarized by now-Justice Barrett, “one [approach] uses history and

tradition to identify the scope of the right, and the other uses that same body

of evidence to identify the scope of the legislature’s power to take it away.”

Kanter, 919 F.3d at 452 (Barrett, J., dissenting). The Government’s

argument that Rahimi falls outside the community covered by the Second

Amendment rests on the first approach. But it runs headlong into Heller and

Bruen, which we read to espouse the second one.

Unpacking the issue, the Government’s argument fails because (1) it

is inconsistent with Heller, Bruen, and the text of the Second Amendment,

(2) it inexplicably treats Second Amendment rights differently than other

individually held rights, and (3) it has no limiting principles. We briefly

examine each deficiency.

The Second Amendment provides, simply enough:

A well regulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear Arms, shall

not be infringed.

U.S. Const. amend. II. Heller explained that the words “the people” in

the Second Amendment have been interpreted throughout the Constitution

to “unambiguously refer[] to all members of the political community, not an

unspecified subset.” 554 U.S. at 580. Further, “the people” “refer[] to a

class of persons who are part of a national community or who have otherwise

developed sufficient connection with this country to be considered part of

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that community.” Id. (citing United States v. Verdugo–Urquidez, 494 U.S.

259, 265 (1990)). For those reasons, the Heller Court began its analysis with

the “strong presumption that the Second Amendment right is exercised

individually and belongs to all Americans,” id. at 581, and then confirmed

that presumption, id. at 595. Heller’s exposition of “the people” strongly

indicates that Rahimi is included in “the people” and thus within the Second

Amendment’s scope.

To be sure, as the Government argues, Heller and Bruen also refer to

“law-abiding, responsible citizens” in discussing the amendment’s reach

(Bruen adds “ordinary, law-abiding citizens”). But read in context, the

Court’s phrasing does not add an implied gloss that constricts the Second

Amendment’s reach. Heller simply uses the phrase “law-abiding,

responsible citizens” as shorthand in explaining that its holding (that the

amendment codifies an individual right to keep and bear arms) should not

“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 . . . .”

Id. at 626–27; see also id. at 627 n.26 (“We identify these presumptively lawful

regulatory measures only as examples; our list does not purport to be

exhaustive.”). In other words, Heller’s reference to “law-abiding,

responsible” citizens meant to exclude from the Court’s discussion groups

that have historically been stripped of their Second Amendment rights.

Bruen’s reference to “ordinary, law-abiding” citizens is no different. See 142

S. Ct. at 2134.

The Government’s reading of Heller and Bruen also turns the typical

way of conceptualizing constitutional rights on its head. “[A] person could

be in one day and out the next: the moment he was convicted of a violent

crime or suffered the onset of mental illness, his rights would be stripped as

a self-executing consequence of his new status.” Kanter, 919 F.3d at 452

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(Barrett, J., dissenting). This is “an unusual way of thinking about rights

[because i]n other contexts that involve the loss of a right, the deprivation

occurs because of state action, and state action determines the scope of the

loss (subject, of course, to any applicable constitutional constraints).” Id.

“Felon voting rights are a good example: a state can disenfranchise felons,

but if it refrains from doing so, their voting rights remain constitutionally

protected.” Id. at 453. The Government fails to justify this disparate

treatment of the Second Amendment.

Perhaps most importantly, the Government’s proffered

interpretation lacks any true limiting principle. Under the Government’s

reading, Congress could remove “unordinary” or “irresponsible” or “non-

law abiding” people—however expediently defined—from the scope of the

Second Amendment. Could speeders be stripped of their right to keep and

bear arms? Political nonconformists? People who do not recycle or drive an

electric vehicle? One easily gets the point: Neither Heller nor Bruen

countenances such a malleable scope of the Second Amendment’s

protections; to the contrary, the Supreme Court has made clear that “the

Second Amendment right is exercised individually and belongs to all

Americans,” Heller, 554 U.S. at 581. Rahimi, while hardly a model citizen, is

nonetheless part of the political community entitled to the Second

Amendment’s guarantees, all other things equal.

B.

Which brings us to the question of whether Rahimi’s right to keep and

bear arms may be constitutionally restricted by operation of § 922(g)(8). The

parties dispute Rahimi’s burden necessary to sustain his facial challenge to

the statute. The Government contends that Rahimi “must establish that no

set of circumstances exists under which the Act would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987). Rahimi contests that assertion,

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asserting during oral argument that the Government’s interpretation of

Salerno has fallen out of favor, though he contends that in any event, he has

satisfied Salerno’s standard.

Bruen instructs how to proceed. The plaintiffs there levied a facial

challenge to New York’s public carry licensing regime. 142 S. Ct. at 2122.

To evaluate the challenged law, the Supreme Court employed a historical

analysis, aimed at “assess[ing] whether modern firearms regulations are

consistent with the Second Amendment’s text and historical

understanding.” Id. at 2131. Construing Heller, the Court flatly rejected any

means-end scrutiny as part of this analysis, id. at 2129, such that if a statute

is inconsistent with the Second Amendment’s text and historical

understanding, then it falls under any circumstances. Cf. Salerno, 481 U.S.

at 745; Freedom Path, Inc. v. Internal Revenue Serv., 913 F.3d 503, 508 (5th Cir.

2019) (“A facial challenge to a statute considers only the text of the statute

itself, not its application to the particular circumstances of an individual.”

(cleaned up)).

Bruen articulated two analytical steps: First, courts must determine

whether “the Second Amendment’s plain text covers an individual’s

conduct[.]” 142 S. Ct. at 2129–30. If so, then the “Constitution

presumptively protects that conduct,” and the Government “must justify its

regulation by demonstrating that it is consistent with the Nation’s historical

tradition of firearm regulation.” Id. at 2130. “Only then may a court

conclude that the individual’s conduct falls outside the Second

Amendment’s unqualified command.” Id. (internal quotation marks

omitted).

To carry its burden, the Government must point to “historical

precedent from before, during, and even after the founding [that] evinces a

comparable tradition of regulation.” Id. at 2131–32 (internal quotation marks

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omitted). “[W]e are not obliged to sift the historical materials for evidence

to sustain [§ 922(g)(8)]. That is [the Government’s] burden.” Id. at 2150.

The Government need not identify a “historical twin”; rather, a

“well-established and representative historical analogue” suffices. Id. at

2133. The Supreme Court distilled two metrics for courts to compare the

Government’s proffered analogues against the challenged law: how the

challenged law burdens the right to armed self-defense, and why the law

burdens that right. Id. (citing McDonald v. City of Chicago, Ill., 561 U.S. 742,

767 (2010) and Heller, 544 U.S. at 599). “[W]hether modern and historical

regulations impose a comparable burden on the right of armed self-defense

and whether that burden is comparably justified are central considerations

when engaging in an analogical inquiry.” Id. (internal quotation marks and

emphasis omitted).

As to the degree of similarity required, “analogical reasoning under

the Second Amendment is neither a regulatory straightjacket nor a regulatory

blank check.” Id. “[C]ourts should not uphold every modern law that

remotely resembles a historical analogue, because doing so risks endorsing

outliers that our ancestors would never have accepted.” Id. (internal

quotation marks, alterations, and citations omitted). On the other hand,

“even if a modern-day regulation is not a dead ringer for historical

precursors, it still may be analogous enough to pass constitutional muster.”

Id. The core question is whether the challenged law and proffered analogue

are “relevantly similar.” Id. at 2132.

When the challenged regulation addresses a “general societal problem

that has persisted since the 18th century, the lack of a distinctly similar

historical regulation addressing that problem is relevant evidence that the

challenged regulation is inconsistent with the Second Amendment.” Id. at

2131. Moreover, “if earlier generations addressed the societal problem, but

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did so through materially different means, that also could be evidence that a

modern regulation is unconstitutional.” Id.

C.

Rahimi’s possession of a pistol and a rifle easily falls within the

purview of the Second Amendment. The amendment grants him the right

“to keep” firearms, and “possession” is included within the meaning of

“keep.” See id. at 2134–35. And it is undisputed that the types of firearms

that Rahimi possessed are “in common use,” such that they fall within the

scope of the amendment. See id. at 2143 (“[T]he Second Amendment

protects only the carrying of weapons that are those ‘in common use at the

time,’ as opposed to those that ‘are highly unusual in society at large.’”)

(quoting Heller, 554 U.S. at 627)). Thus, Bruen’s first step is met, and the

Second Amendment presumptively protects Rahimi’s right to keep the

weapons officers discovered in his home. See id. at 2126.

But Rahimi, like any other citizen, may have forfeited his Second

Amendment rights if his conduct ran afoul of a “lawful regulatory

measure[]” “prohibiting . . . the possession of firearms,” Heller, 554 U.S. at

626–27 & 627 n.26, that is consistent with “the historical tradition that

delimits the outer bounds of the right to keep and bear arms,” Bruen, 142 S.

Ct. at 2127. The question turns on whether § 922(g)(8) falls within that

historical tradition, or outside of it.

To reiterate, the statute makes it unlawful

for any person[] who is subject to a court order that[:] (A) was

issued after a hearing of which such person received actual

notice, and at which such person had an opportunity to

participate; (B) restrains such person from harassing, stalking,

or threatening an intimate partner of such person or child of

such intimate partner or person, or engaging in other conduct

that would place an intimate partner in reasonable fear of bodily

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injury to the partner or child; and (C)(i) includes a finding that

such person represents a credible threat to the physical safety

of such intimate partner or child; or (ii) by its terms explicitly

prohibits the use, attempted use, or threatened use of physical

force against such intimate partner or child that would

reasonably be expected to cause bodily injury . . . to . . . possess

in or affecting commerce, any firearm or ammunition . . . .

§ 922(g)(8); see McGinnis, 956 F.3d at 758 (stating that § 922(g)(8)’s purpose

is to reduce “domestic gun abuse”). Distilled to its essence, the provision

operates to deprive an individual of his right to keep and bear arms once a

court finds, after notice and a hearing, that the individual poses a “credible

threat” to an intimate partner or her child and enters a restraining order to

that effect. The covered individual forfeits his Second Amendment right for

the duration of the court’s order. This is so even when the individual has not

been criminally convicted of any offense and when the underlying proceeding

is merely civil in nature.

These characteristics crystallize “how” and “why” § 922(g)(8)

“burden[s] a law-abiding citizen’s right to armed self-defense.” Bruen, 142

S. Ct. at 2133. In particular, we focus on these key features of the statute:

(1) forfeiture of the right to possess weapons (2) after a civil proceeding 6

(3) in which a court enters a protective order based on a finding of a “credible

threat” to another specific person, (4) in order to protect that person from

6

The distinction between a criminal and civil proceeding is important because

criminal proceedings have afforded the accused substantial protections throughout our

Nation’s history. In crafting the Bill of Rights, the Founders were plainly attuned to

preservation of these protections. See U.S. Const. amend. IV; U.S. Const. amend. V;

U.S. Const. amend. VI; U.S. Const. amend. VIII. It is therefore significant that

§ 922(g)(8) works to eliminate the Second Amendment right of individuals subject merely

to civil process.

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“domestic gun abuse.” The first three aspects go to how the statute

accomplishes its goal; the fourth is the statute’s goal, the why.

To sustain § 922(g)(8)’s burden on Rahimi’s Second Amendment

right, the Government bears the burden of proffering “relevantly similar”

historical regulations that imposed “a comparable burden on the right of

armed self-defense” that were also “comparably justified.” Id. at 2132–33.

And “when it comes to interpreting the Constitution, not all history is

created equal. Constitutional rights are enshrined with the scope they were

understood to have when the people adopted them.” Id. at 2136 (internal

quotation marks omitted). We thus afford greater weight to historical

analogues more contemporaneous to the Second Amendment’s ratification.

The Government offers potential historical analogues to § 922(g)(8)

that fall generally into three categories: (1) English and American laws (and

sundry unadopted proposals to modify the Second Amendment) providing

for disarmament of “dangerous” people, (2) English and American “going

armed” laws, and (3) colonial and early state surety laws. We discuss in turn

why each of these historical regulations falter as “relevantly similar”

precursors to § 922(g)(8).

1.

The Government relies on laws of varying antiquity as evidence of its

“dangerousness” analogues. We sketch these chronologically, mindful that

greater weight attaches to laws nearer in time to the Second Amendment’s

ratification.

Under the English Militia Act of 1662, officers of the Crown could

“seize all arms in the custody or possession of any person” whom they

“judge[d] dangerous to the Peace of the Kingdom.” 13 & 14 Car. 2, c.3, § 13

(1662). Citing scholarship, the Government thus posits that “by the time of

American independence, England had established a well-practiced tradition

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of disarming dangerous persons—violent persons and disaffected persons

perceived as threatening to the crown.” Joseph G.S. Greenlee, The Historical

Justification for Prohibiting Dangerous Persons from Possessing Firearms, 20

Wyo. L. Rev. 249, 261 (2020).

But the Militia Act’s provenance demonstrates that it is not a

forerunner of our Nation’s historical tradition of firearm regulation. Under

Charles I (who reigned 1625–1649), the Crown and Parliament contested for

control of the militia. Nelson Lund, The Past and Future of the Individual’s

Right to Arms, 31 Ga. L. Rev. 1, 8 (1996). After the resulting civil war and

Oliver Cromwell’s interregnum, the monarchy was restored in 1660 when

Charles II took the throne. Charles II began using the militia to disarm his

political opponents. Id. (citing J. Malcolm, To Keep and Bear

Arms: The Origins of an Anglo-American Right (1994) 35–

38 (1994). The Militia Act of 1662 facilitated this disarmament, which

escalated under the Catholic James II once he took the throne in 1685. Id.;

see Heller, 554 U.S. at 593 (noting that the disarmaments “caused

Englishmen . . . to be jealous of their arms”). After the Glorious Revolution,

which enthroned Protestants William and Mary, the Declaration of Rights,

codified as the 1689 English Bill of Rights, qualified the Militia Act by

guaranteeing “[t]hat the subjects which are Protestants may have arms for

their defence suitable to their Conditions and as allowed by Law.” 1 W. &

M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. “This right,” which restricted the

Militia Act’s reach in order to prevent the kind of politically motivated

disarmaments pursued by Charles II and James II, “has long been understood

to be the predecessor to our Second Amendment.” Heller, 554 U.S. at 593.

This understanding, and the history behind it, defeats any utility of the

Militia Act of 1662 as a historical analogue for § 922(g)(8).

The Government next points to laws in several colonies and states that

disarmed classes of people considered to be dangerous, specifically including

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those unwilling to take an oath of allegiance, slaves, and Native Americans.

See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to

Keep Arms in Early America: The Legal Context of the Second Amendment, 25

Law & Hist. Rev. 139, 157–60 (2007). These laws disarmed people

thought to pose a threat to the security of the state due to their perceived lack

of loyalty or societal status. See Nat’l Rifle Ass’n of Am., Inc. v. Bureau of

Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 200–01 (5th Cir. 2012)

(discussing relevant scholarship), abrogated by Bruen, 142 S. Ct. at 2126–30.

“While public safety was a concern, most disarmament efforts were meant

to prevent armed rebellions. The early Americans adopted much of that

tradition in the colonies.” Greenlee, supra, at 261.

Despite some facial similarities in how these “dangerousness” laws

worked—like § 922(g)(8), they operated to disarm covered people—there

were also material differences. For one, they disarmed people by class or

group, not after individualized findings of “credible threats” to identified

potential victims. Even more, why they disarmed people was different. The

purpose of these “dangerousness” laws was the preservation of political and

social order, not the protection of an identified person from the specific

threat posed by another. Therefore, laws disarming “dangerous” classes of

people are not “relevantly similar” to § 922(g)(8) such that they can serve

as historical analogues.

Finally, the Government offers two proposals that emerged in state

ratification conventions considering the proposed Constitution. A minority

of Pennsylvania’s convention authored a report in which they contended that

citizens have a right to bear arms “unless for crimes committed, or real danger

of public injury.” 2 Bernard Schwartz, The Bill of Rights: A

Documentary History 662, 665 (1971) (emphasis added). And at the

Massachusetts convention, Samuel Adams proposed a qualifier to the

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Second Amendment that limited the scope of the right to “peaceable

citizens.” Id. at 681.

But these proposed amendments are not reflective of the Nation’s

early understanding of the scope of the Second Amendment right. While

they were influential proposals, see Heller, 554 U.S. at 604, neither became

part of the Second Amendment as ratified. Thus, the proposals might

somewhat illuminate the scope of firearm rights at the time of ratification,

but they cannot counter the Second Amendment’s text, or serve as an

analogue for § 922(g)(8) because, inter alia, they were not enacted. Cf.

Bruen, 142 S. Ct. at 2137 (“[T]o the extent later history contradicts what the

text [of the Second Amendment] says, the text controls.”).

2.

The Government also relies on the ancient criminal offense of “going

armed to terrify the King’s subjects.” Bruen, 142 S. Ct. at 2141 (alteration

and emphasis omitted). This common law offense persisted in America and

was in some cases codified. Id. at 2144. The Government offers four

exemplars codified in the Massachusetts Bay Colony, the state of Virginia,

and the colonies of New Hampshire and North Carolina.

The Massachusetts law provided “[t]hat every justice of the

peace . . . may cause to be staid and arrested all affrayers, rioters, disturbers

or breakers of the peace, and such as shall ride, or go armed

offensively . . . and upon view of such justice or justices, confession of the

party or other legal conviction of any such offence, shall commit the offender

to prison . . . and seize and take away his armor or weapons . . . .” 1 Acts and

Resolves, Public and Private, of the Province of the Massachusetts Bay, 52–

53 (1869) (1692 statute) (cleaned up). Similarly, the New Hampshire statute

authorized justices of the peace “upon view of such justice, confession of the

party, or legal proof of any such offense . . . [to] cause the [offender’s] arms

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or weapons to be taken away . . . .” Acts and Laws of His Majesty’s Province

of New-Hampshire: In New-England; with Sundry Acts of Parliament, 17

(1771) (1701 statute); see Bruen, 142 S. Ct. at 2142–43 (noting that

Massachusetts and New Hampshire laws “were substantively identical”).

Virginia’s law differed slightly: “[N]o man . . . [shall] go []or ride armed by

night or by day, in fairs or markets, or in other places, in terror of the country,

upon pain of being arrested and committed to prison by any justice on his

view, or proof of others, there to a time for so long a time as a jury, to be

sworn for that purpose by the said justice, shall direct, and in like manner to

forfeit his armour to the Commonwealth . . . .” Revised Code of the State of

Virginia: Collection of All Such Acts of the General Assembly of Virginia, of

a Public and Permanent Nature, as Are Now in Force, 554 (1819) (1786

statute). North Carolina’s colonial law was contained within its constable’s

oath, which required constables to “arrest all such persons as, in your sight,

shall ride or go armed offensively, or shall commit or make any riot, affray, or

other breach of his Majesty’s peace . . . .” Collection of All of the Public Acts

of Assembly of the Province of North-Carolina: Now in Force and Use, 131

(1751) (1741 statute) (cleaned up). While similarly aimed at curbing “going

armed offensively,” the North Carolina law did not provide for forfeiture.

These proffered analogues fall short for several reasons. An

overarching one is that it is dubious these “going armed” laws are reflective

of our Nation’s historical tradition of firearm regulation, at least as to

forfeiture of firearms. See Bruen, 142 S. Ct. at 2142 (“[W]e doubt that three

colonial regulations could suffice to show a tradition of public carry

regulation.”). North Carolina’s law did not provide for forfeiture, so it

quickly falls out of the mix. And fairly early on, Massachusetts and Virginia

dropped forfeiture as a penalty, going the way of North Carolina and thereby

undercutting the Government’s reliance on those laws. Indeed,

Massachusetts amended its law to remove the forfeiture provision in 1795,

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just four years after the ratification of the Second Amendment. 2 Laws of the

Commonwealth of Massachusetts, from November 28, 1780 to February 28,

1807, 653 (1807) (statute enacted Jan. 29, 1795). Virginia had done so by

1847, shortly before the Commonwealth re-codified its laws in 1849. See

Code of Virginia: With the Declaration of Independence and Constitution of

the United States and the Declaration of Rights and Constitution of Virginia,

756 (1849). 7 It is unclear how long New Hampshire’s “going armed” law

preserved its forfeiture provision, but assuming arguendo it persisted longer

than the others, one outlier is not enough “to show a tradition of public carry

regulation.” Bruen, 142 S. Ct. at 2142.

And on substance, the early “going armed” laws that led to weapons

forfeiture are not relevantly similar to § 922(g)(8). First, those laws only

disarmed an offender after criminal proceedings and conviction. By contrast,

§ 922(g)(8) disarms people who have merely been civilly adjudicated to be a

threat to another person. Moreover, the “going armed” laws, like the

“dangerousness” laws discussed above, appear to have been aimed at

curbing terroristic or riotous behavior, i.e., disarming those who had been

adjudicated to be a threat to society generally, rather than to identified

individuals. Thus, these “going armed” laws are not viable historical

analogues for § 922(g)(8).

3.

Lastly, the Government points to historical surety laws. At common

law, an individual who could show that he had “just cause to fear” that

another would injure him or destroy his property could “demand surety of

7

By the 1849 code, Virginia’s going armed law had evolved into its anti-riot law

(chapter 195) and surety law (chapter 201). See id. Neither chapter provided for forfeiture

of an offender’s weapons.

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the peace against such person.” 4 William Blackstone,

Commentaries on the Laws of England 252 (1769). The surety

“was intended merely for prevention, without any crime actually committed

by the party; but arising only from probable suspicion, that some crime [wa]s

intended or likely to happen.” Id. at 249. If the party of whom surety was

demanded refused to post surety, he would be forbidden from carrying a

weapon in public absent special need. See Bruen, 142 S. Ct. at 2148–49

(discussing operation of historical surety laws). Many jurisdictions codified

this tradition, either before ratification of the Bill of Rights or in early decades

thereafter. 8

The surety laws come closer to being “relevantly similar” to

§ 922(g)(8) than the “dangerousness” and “going armed” laws discussed

supra. First, they are more clearly a part of our tradition of firearm regulation.

And they were “comparably justified,” id. at 2133, in that they were meant

to protect an identified person (who sought surety) from the risk of harm

posed by another identified individual (who had to post surety to carry arms).

Put simply, the why behind historical surety laws analogously aligns with that

underlying § 922(g)(8). 9

8

E.g., 1 Acts and Resolves, Public and Private, of the Province of the Massachusetts

Bay, 52–53 (1869) (1692 statute); Acts and Laws of His Majesty’s Province of New-

Hampshire: In New-England; with Sundry Acts of Parliament, 17 (1771) (1701 statute); 2

Statutes at Large of Pennsylvania from 1682 to 1801, pg. 23 (1896) (1700 statute); 1 Laws

of the State of Delaware from the Fourteenth Day of October, One Thousand Seven

Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and Ninety-

Seven, pg. 52 (1797) (1700 statute); Acts and Laws of His Majesties Colony of Connecticut

in New-England 91 (1901) (1702 statute); see also Bruen, 142 S. Ct. at 2148 (stating that at

least ten jurisdictions enacted surety laws between 1836 and 1871).

9

The parties spar somewhat over the required granularity of the underlying

problem in comparing § 922(g)(8) to proffered analogues. Rahimi contends more generally

that domestic violence was, and remains, a persistent social ill that society has taken

numerous actions against—though not disarmament. The Government counters that

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Aspects of how the surety laws worked resemble certain of the

mechanics of § 922(g)(8) as well. The surety laws required only a civil

proceeding, not a criminal conviction. The “credible threat” finding

required to trigger § 922(g)(8)’s prohibition on possession of weapons

echoes the showing that was required to justify posting of surety to avoid

forfeiture. But that is where the analogy breaks down: As the Government

acknowledges, historical surety laws did not prohibit public carry, much less

possession of weapons, so long as the offender posted surety. See also id. at

2149 (noting that there is “little evidence that authorities ever enforced

surety laws”). Where the surety laws imposed a conditional, partial

restriction on the Second Amendment right, § 922(g)(8) works an absolute

deprivation of the right, not only publicly to carry, but to possess any firearm,

upon entry of a sufficient protective order. At bottom, the historical surety

laws did not impose “a comparable burden on the right of armed self-

defense,” id. at 2133, as § 922(g)(8). 10

* * *

“crime statistics from the founding era are hard to come by,” but that “there is reason to

doubt that domestic homicide was as prevalent at the founding as it is in the modern era.”

To be sure, historical surety laws were not targeted to domestic violence or even more

specifically to domestic homicide. But somewhat abstracting the laws’ justifications, as we

do above the line, strikes us as consistent with Bruen’s instruction that “even if a modern-

day regulation is not a dead ringer for historical precursors, it still may be analogous enough

to pass constitutional muster.” 142 S. Ct. at 2133.

10

Accord David B. Kopel & Joseph G. S. Greenlee, The Federal Circuits’ Second

Amendment Doctrines, 61 St. Louis L.J. 193, 244 (2017) (“[T]here is simply no

tradition—from 1791 or 1866—of prohibiting gun possession (or voting, jury service, or

government service) for people convicted of misdemeanors or subject to civil protective

orders.”); Carolyn B. Ramsey, Firearms in the Family, 78 Ohio St. L.J. 1257, 1301 (2017)

(“Historical support for the exclusion of domestic violence offenders from Second

Amendment protection appears rather thin.”).

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The Government fails to demonstrate that § 922(g)(8)’s restriction of

the Second Amendment right fits within our Nation’s historical tradition of

firearm regulation. The Government’s proffered analogues falter under one

or both of the metrics the Supreme Court articulated in Bruen as the baseline

for measuring “relevantly similar” analogues: “how and why the regulations

burden a law-abiding citizen’s right to armed self-defense.” Id. As a result,

§ 922(g)(8) falls outside the class of firearm regulations countenanced by the

Second Amendment.

IV.

Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals

meant to protect vulnerable people in our society. Weighing those policy

goals’ merits through the sort of means-end scrutiny our prior precedent

indulged, we previously concluded that the societal benefits of § 922(g)(8)

outweighed its burden on Rahimi’s Second Amendment rights. But Bruen

forecloses any such analysis in favor of a historical analogical inquiry into the

scope of the allowable burden on the Second Amendment right. Through

that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an

“outlier[] that our ancestors would never have accepted.” Id. Therefore,

the statute is unconstitutional, and Rahimi’s conviction under that statute

must be vacated.

REVERSED; CONVICTION VACATED.

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James C. Ho, Circuit Judge, concurring:

The right to keep and bear arms has long been recognized as a

fundamental civil right. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 784

(1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments

as the “civil-rights Amendments”); Konigsberg v. State Bar of Cal., 366 U.S.

36, 49–50 n.10 (1961). Blackstone saw it as essential to “‘the natural right’”

of Englishmen to “‘self-preservation and defence.” District of Columbia v.

Heller, 554 U.S. 570, 593–94 (2008) (quoting 1 William Blackstone,

Commentaries on the Laws of England 139–40 (1765)).

But the Second Amendment has too often been denigrated as “a

second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).

In response, the Supreme Court has called on judges to be more faithful

guardians of the text and original meaning of the Second Amendment. See

N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our

court today dutifully follows the framework recently set forth in N.Y. State

Rifle. It recognizes the absence of relevant historical analogues required to

support the Government’s position in this case. I am pleased to concur.

I write separately to point out that our Founders firmly believed in the

fundamental role of government in protecting citizens against violence, as

well as the individual right to keep and bear arms—and that these two

principles are not inconsistent but entirely compatible with one another.

Our Founders understood that those who commit or threaten violence

against innocent law-abiding citizens may be arrested, convicted, and

incarcerated. They knew that arrest and incarceration naturally entails the

loss of a wide range of liberties—including the loss of access to arms. 1

1

See, e.g., Chimel v. California, 395 U.S. 752, 762–63 (1969) (“When an arrest is

made, it is reasonable for the arresting officer to search the person arrested in order to

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So when the government detains—and thereby disarms—a member

of our community, it must do so consistent with the fundamental protections

that our Constitution affords to those accused of a crime. For example, the

government may detain dangerous criminals, not just after conviction, but

also before trial. Pre-trial detention is expressly contemplated by the

Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a

significant role in protecting innocent citizens against violence. See, e.g.,

United States v. Salerno, 481 U.S. 739, 755 (1987) (permitting “the detention

prior to trial of arrestees charged with serious felonies who . . . pose a threat

to the safety of individuals or to the community”).

Our laws also contemplate the incarceration of those who criminally

threaten, but have not (yet) committed, violence. After all, to the victim,

such actions are not only life-threatening—they’re life-altering. See, e.g.,

United States v. Ackell, 907 F.3d 67 (1st Cir. 2018) (upholding criminal

stalking law); United States v. Gonzalez, 905 F.3d 165 (3rd Cir. 2018) (same);

United States v. Osinger, 753 F.3d 939 (9th Cir. 2014) (same); United States v.

Petrovic, 701 F.3d 849 (8th Cir. 2012) (same); see also People v. Counterman,

497 P.3d 1039 (Colo. Ct. App. 2021) (same), cert. granted, _ U.S. _ (2023).

In sum, our Founders envisioned a nation in which both citizen and

sovereign alike play important roles in protecting the innocent against violent

criminals. Our decision today is consistent with that vision. I concur.

remove any weapons that the latter might seek to use in order to resist arrest or effect his

escape.”); State v. Buzzard, 4 Ark. 18, 21 (1842) (Ringo, C.J.) (“Persons accused of crime,

upon their arrest, have constantly been divested of their arms, without the legality of the

act having ever been questioned.”).

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