Petition for Writ of Certiorari — United States, Petitioner v. Zackey Rahimi
Supreme Court briefMar 17, 2023
Ask Donna
What actually matters in this document.
Text
No.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
ZACKEY RAHIMI
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KENNETH A. POLITE, JR.
Assistant Attorney General
BRIAN H. FLETCHER
Deputy Solicitor General
VIVEK SURI
Assistant to the Solicitor
General
WILLIAM A. GLASER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether 18 U.S.C. 922(g)(8), which prohibits the
possession of firearms by persons subject to domesticviolence restraining orders, violates the Second Amendment on its face.
(I)
RELATED PROCEEDINGS
United States District Court (N.D. Tex.):
United States v. Rahimi, No. 21-cr-83 (Sept. 27,
2021)
United States Court of Appeals (5th Cir.):
United States v. Rahimi, No. 21-11001 (Feb. 2, 2023)
(II)
TABLE OF CONTENTS
Page
Opinion below ................................................................................ 1
Jurisdiction .................................................................................... 1
Constitutional and statutory provisions involved ...................... 1
Statement ...................................................................................... 2
Reasons for granting the petition ............................................... 6
A. The court of appeals erred in holding that the
Second Amendment precludes Congress from
disarming individuals subject to domestic-violence
restraining orders ............................................................ 8
B. This Court should review the decision below ............. 13
Conclusion ................................................................................... 17
Appendix A — Court of appeals opinion (Mar. 2, 2023) ....... 1a
Appendix B — Court of appeals opinion
(Feb. 2, 2023) ............................................. 42a
Appendix C — Court of appeals order (July 7, 2022) ......... 70a
Appendix D — Court of appeals opinion
(June 8, 2022) .............................................. 72a
Appendix E — District court order (June 3, 2021) ............. 78a
Appendix F — Constitutional and statutory provisions ..... 81a
TABLE OF AUTHORITIES
Cases:
Allen v. Cooper, 140 S. Ct. 994 (2020) .................................. 14
Barr v. American Ass’n of Political Consultants,
Inc., 140 S. Ct. 2335 (2020) ................................................. 13
Blodgett v. Holden, 275 U.S. 142 (1927) .............................. 13
District of Columbia v. Heller, 554 U.S. 570 (2008) ... 7, 8, 10
Georgia v. Randolph, 547 U.S. 103 (2006) .......................... 15
Iancu v. Brunetti, 139 S. Ct. 2294 (2019) ............................ 13
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) ...................... 12
Maricopa County v. Lopez-Valenzuela,
574 U.S. 1006 (2014)............................................................ 13
(III)
IV
Cases—Continued:
Page
NRA v. Bureau of Alcohol, Tobacco, Firearms, &
Explosives, 700 F.3d 185 (5th Cir. 2012),
cert. denied, 571 U.S. 1196 (2014) ....................................... 8
New York State Rifle & Pistol Association v. Bruen,
142 S. Ct. 2111 (2022) ............................ 5, 6, 9, 10, 12-14, 16
Torres v. Texas Department of Public Safety,
142 S. Ct. 2455 (2022) ......................................................... 13
United States v. Bena, 664 F.3d 1180 (8th Cir. 2011) ........ 14
United States v. Boyd, 999 F.3d 171 (3d Cir.),
cert. denied, 142 S. Ct. 511 (2021) ..................................... 14
United States v. Castleman, 572 U.S. 157 (2014) ........... 7, 15
United States v. Chapman,
666 F.3d 220 (4th Cir. 2012) ............................................... 15
United States v. Emerson, 270 F.3d 203 (5th Cir.
2001), cert. denied, 536 U.S. 907 (2002) ............................ 11
United States v. Hayes, 555 U.S. 415 (2009) ........................ 6
United States v. McGinnis,
956 F.3d 747 (5th Cir. 2020), cert. denied,
141 S. Ct. 1397 (2021) ..................................................... 5, 15
United States v. Reese,
627 F.3d 792 (10th Cir. 2010), cert. denied,
563 U.S. 990 (2011).............................................................. 15
United States v. Vaello Madero,
142 S. Ct. 1539 (2022) ......................................................... 13
Constitution and statutes:
U.S. Const. Amend. II................................ 4, 5, 7, 9, 10, 14, 16
Act for Constituting a Council of Safety, ch. 40, § 20,
1777 N.J. Laws 90 ................................................................. 9
Act of May 1, 1776, ch. 21, § 1, 1776 Mass. Acts 479 ............ 8
Act for the Punishing of Criminal Offenders,
1692 Mass. Laws 11-12 ......................................................... 9
V
Statutes—Continued:
Page
Act for the Punishing Criminal Offenders,
1696-1701 N.H. Laws 15 ...................................................... 9
Act of June 13, 1777, ch. 21, § 4, 1777 Pa. Laws 63 .............. 8
Bipartisan Safer Communities Act,
Pub. L. No. 117-159, § 12004, 136 Stat. 1313:
§ 12004, 136 Stat. 1329 ...................................................... 4
Militia Act of 1662, 13 & 14 Car. 2, c. 3, § 13 ......................... 8
18 U.S.C. 921(a)(32) ................................................................. 4
18 U.S.C. 922(g) ..................................................................... 13
18 U.S.C. 922(g)(8) .............................................. 3-7, 11, 14, 15
18 U.S.C. 922(g)(8)(A) ............................................................. 4
18 U.S.C. 922(g)(8)(B) ............................................................. 4
18 U.S.C. 922(g)(8)(C) ....................................................... 4, 11
18 U.S.C. 924(a)(2) (2018) ....................................................... 4
18 U.S.C. 924(a)(2) ................................................................... 3
18 U.S.C. 924(a)(8) ................................................................... 4
La. Rev. Stat. Ann. § 14:79(A)(4) (Supp. 2023) ................... 15
Mass. Rev. Stat. 750 (1836) ................................................... 10
Me. Rev. Stat. ch. 169, § 16, 709 (1840)................................ 10
Mich. Rev. Stat. ch. 162, § 16, 692 (1846) ............................ 10
Tex. Fam. Code Ann. (West Supp. 2019):
§ 85.022(a)......................................................................... 11
§ 85.022(b)(1) .................................................................... 11
Tex. Penal Code Ann. § 46.04(c) (West Supp. 2022) .......... 15
Miscellaneous:
Act of May 28, 1777, ch. 3 (Va.), reprinted in
9 William Waller Hening, The Statutes at Large;
Being a Collection of all the Laws of Virginia from
the First Session of the Legislature, in the Year
1619 (1821) ............................................................................. 8
Cong. Globe, 39th Cong., 1st Sess. (1866) ........................... 10
VI
Miscellaneous—Continued:
Page
Diarmuid F. O’Scannlain, Glorious Revolution to
American Revolution: The English Origin of the
Right to Keep and Bear Arms, 95 Notre Dame L.
Rev. 397 (2019) ...................................................................... 8
William Rawle, A View of the Constitution of the
United States of America (2d ed. 1829) ........................... 10
2 Bernard Schwartz, The Bill of Rights:
A Documentary History (1971) .......................................... 9
In the Supreme Court of the United States
No.
UNITED STATES, PETITIONER
v.
ZACKEY RAHIMI
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States,
respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Fifth Circuit in this case.
OPINION BELOW
The opinion of the court of appeals (App., infra, 1a41a) is not yet published in the Federal Reporter, but is
available at 2023 WL 2317796.
JURISDICTION
The judgment of the court of appeals was entered on
March 2, 2023. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
Pertinent constitutional and statutory provisions are
reproduced in the appendix. App., infra, 81a-82a.
(1)
2
STATEMENT
1. Respondent Zackey Rahimi was a drug dealer
who “mostly sold marijuana and occasionally sold cocaine.” C.A. ROA 211. In December 2019, Rahimi and
his girlfriend C.M. had an argument in a parking lot in
Arlington, Texas. Id. at 217. C.M. tried to leave, but
Rahimi grabbed her wrist, knocking her to the ground.
Ibid. He then dragged her back to his car, picked her
up, and pushed her inside, causing her to hit her head
on the dashboard. Ibid. Realizing that a bystander had
seen him, he retrieved a gun and fired a shot. Ibid. In
the meantime, C.M. escaped the car and fled the scene.
Ibid. Rahimi later called her and threatened to shoot
her if she told anyone about the assault. Ibid.
In February 2020, after giving Rahimi notice and an
opportunity for a hearing, a Texas state court granted
C.M. a restraining order, which was valid for two years.
C.A. ROA 12-18. The court found that Rahimi had
“committed family violence” and that such violence was
“likely to occur again in the future.” Id. at 13. The court
accordingly prohibited Rahimi from committing family
violence and from threatening, harassing, or approaching C.M. or her family. Id. at 13-14. The order also suspended Rahimi’s handgun license, prohibited him from
possessing a firearm, and warned him that possessing a
firearm while the order remained in effect may be a federal felony. Id. at 14, 16. Rahimi signed an acknowledgement that he had “received a copy of this protective
order in open court at the close of the hearing in this
matter.” Id. at 18.
Rahimi, however, defied the restraining order. In
August 2020, he tried to communicate with C.M. on social media and approached her house in the middle of
the night, prompting state police to arrest him for vio-
3
lating the order. C.A. ROA 218. And in November 2020,
he threatened another woman with a gun, leading the
State of Texas to charge him with aggravated assault
with a deadly weapon. Id. at 219.
Rahimi then participated in a series of five shootings
in December 2020 and January 2021. First, after someone who had bought drugs from him “started talking
‘trash’ ” on social media, he went to the man’s home and
fired bullets into it using an AR-15 rifle. C.A. ROA 209.
The next day, after colliding with another vehicle, he
alighted from his car, shot at the other driver, fled, returned to the scene, fired more shots at the other car,
and fled again. Ibid. Three days later, Rahimi fired a
gun in the air in a residential neighborhood in the presence of young children. Id. at 210. A few weeks after
that, a truck flashed its headlights at Rahimi when he
sped past it on a highway; in response, Rahimi slammed
his brakes, cut across the highway, followed the truck
off an exit, and fired multiple shots at another car that
had been traveling behind the truck. Ibid. Finally, in
early January, Rahimi pulled out a gun and fired multiple shots in the air after a friend’s credit card was declined at a fast-food restaurant. Ibid.
Police officers identified Rahimi as a suspect in those
shootings and secured a search warrant for his home.
C.A. ROA 210. A search of his room uncovered a .45caliber pistol, a .308-caliber rifle, pistol and rifle magazines, ammunition, approximately $20,000 in cash, and
a copy of the restraining order. Id. at 211.
2. A federal grand jury in the Northern District of
Texas indicted Rahimi for violating 18 U.S.C. 922(g)(8)
and 924(a)(2). C.A. ROA 19-22. Section 922(g)(8), which
Congress enacted in 1994, prohibits a person who is subject to a domestic-violence restraining order from pos-
4
sessing a firearm in or affecting commerce. At the time
of Rahimi’s conduct, a knowing violation of Section
922(g)(8) was punishable by up to ten years of imprisonment. 18 U.S.C. 924(a)(2) (2018).1
To trigger Section 922(g)(8), a restraining order
must satisfy three conditions. First, a court must have
issued the order after giving the person subject to it notice and an opportunity to be heard. 18 U.S.C.
922(g)(8)(A). Second, the order must forbid the person
from harassing, stalking, or threatening an “intimate
partner,” the person’s child, or an intimate partner’s
child. 18 U.S.C. 922(g)(8)(B); see 18 U.S.C. 921(a)(32)
(defining “intimate partner”). Third, the order must either (1) include a finding that the person poses a “credible threat” to the physical safety of the intimate partner or child or (2) explicitly prohibit the use, attempted
use, or threatened use of physical force against the intimate partner or child. 18 U.S.C. 922(g)(8)(C).
The restraining order in this case satisfied each of
those requirements. Rahimi received notice and an opportunity to be heard. C.A. ROA 12. C.M. was Rahimi’s
intimate partner because they had a child together. Id.
at 13. And the order both contained a finding that
Rahimi posed a credible threat to C.M.’s physical safety
and prohibited the threatened use of physical force
against C.M. Id. at 13-14.
Rahimi moved to dismiss the indictment, arguing
that Section 922(g)(8) violates the Second Amendment
on its face. C.A. ROA 41-59. The district court denied
the motion, observing that the Fifth Circuit had upheld
Congress has since increased the maximum punishment to 15
years of imprisonment. See 18 U.S.C. 924(a)(8); see also Bipartisan
Safer Communities Act, Pub. L. No. 117-159, § 12004, 136 Stat. 1313,
1329.
1
5
the constitutionality of Section 922(g)(8) in United
States v. McGinnis, 956 F.3d 747 (2020), cert. denied,
141 S. Ct. 1397 (2021). App., infra, 78a-80a. Rahimi
then pleaded guilty. C.A. ROA 68-69, 160. The court
sentenced him to 73 months of imprisonment, to be followed by three years of supervised release. Id. at 96.
3. The Fifth Circuit at first affirmed, reasoning that
its decision in McGinnis foreclosed Rahimi’s Second
Amendment challenge. App., infra, 73a n.1; see id. at
72a-77a. But after this Court decided New York State
Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111
(2022), the Fifth Circuit withdrew its opinion. App., infra, 70a-71a. After receiving supplemental briefing on
Bruen, the court reversed. Id. at 42a-69a. A month
later, the court withdrew that opinion and issued an
amended opinion that again reversed. Id. at 1a-41a.
The Fifth Circuit held that Section 922(g)(8) violates
the Second Amendment on its face. App., infra, 7a-27a.
The court began by reasoning that Rahimi fell “within
the Second Amendment’s scope.” Id. at 8a. It acknowledged that this Court has described the right to keep
and bear arms as a right belonging to “ ‘ordinary, lawabiding citizens,’ ” but it interpreted that phrase to exclude only “ ‘felons,’ ” “ ‘the mentally ill,’ ” and other
“groups that have historically been stripped of their
Second Amendment rights.” Id. at 8a-9a (citations
omitted). The Fifth Circuit concluded that, although
Rahimi was “hardly a model citizen,” he was not a “convicted felon” or otherwise excluded from the Second
Amendment’s scope. Id. at 10a-11a.
The court of appeals stated that, because Rahimi
presumptively fell within the Second Amendment’s
scope, the government bore the burden of identifying
historical analogues to Section 922(g)(8)—that is,
6
longstanding regulations “that imposed ‘a comparable
burden on the right of armed self-defense’ that were
also ‘comparably justified.’ ” Id. at 17a (quoting Bruen,
142 S. Ct. at 2132-2133). The court then rejected each
of the analogues the government offered. For example,
the government cited a 17th-century English statute
disarming individuals judged to be dangerous, but the
court concluded that the statute was “not a forerunner
of our Nation’s historical tradition of firearm regulation.” Id. at 18a. The government cited colonial and
early state laws disarming categories of individuals legislatures “considered to be dangerous,” but the Fifth
Circuit distinguished those laws on the ground that they
operated on a categorical basis, while Section 922(g)(8)
rests on individualized findings. Id. at 19a. The government also cited colonial and state laws under which a
person who was found to pose a threat to someone else
could bear arms only if he posted a surety. Id. at 24a25a. But the Fifth Circuit emphasized that surety laws
imposed only a “partial restriction” on the right to keep
and bear arms, while Section 922(g)(8) “works an absolute deprivation of the right.” Id. at 26a.
Judge Ho issued a concurring opinion. App., infra,
29a-41a. He found Section 922(g)(8) “difficult to justify”
because it disarms individuals “based on civil protective
orders” rather than “criminal proceedings.” Id. at 36a.
He expressed concern that such orders are susceptible
to “abuse.” Id. at 37a.
REASONS FOR GRANTING THE PETITION
“Firearms and domestic strife are a potentially
deadly combination.” United States v. Hayes, 555 U.S.
415, 427 (2009). More than a million acts of domestic
violence occur in the United States every year, and the
presence of a firearm increases the chance that violence
7
will escalate to homicide. United States v. Castleman,
572 U.S. 157, 160 (2014); see id. at 159-160. “All too often, * * * the only difference between a battered
woman and a dead woman is the presence of a gun.” Id.
at 160 (brackets and citation omitted).
In Section 922(g)(8), Congress sought to address
that problem by disarming individuals who are subject
to domestic-violence restraining orders. That prohibition comes into operation only if a court finds, after notice and a hearing, that a person poses a credible threat
to the physical safety of an intimate partner or child or
expressly forbids the person from using, attempting to
use, or threatening to use physical force against the intimate partner or child. And the prohibition lasts only
as long as the restraining order remains in effect.
The Fifth Circuit, however, concluded that Section
922(g)(8) violates the Second Amendment—not just as
applied to a particular defendant, but on its face. That
holding was profoundly mistaken. Governments have
long disarmed individuals who pose a threat to the
safety of others, and Section 922(g)(8) falls comfortably
within that tradition. The Fifth Circuit’s contrary decision misapplies this Court’s precedents, conflicts with
the decisions of other courts of appeals, and threatens
grave harms for victims of domestic violence. This
Court should grant certiorari and reverse.
A. The Court Of Appeals Erred In Holding That The Second
Amendment Precludes Congress From Disarming Individuals Subject To Domestic-Violence Restraining Orders
1. The Second Amendment guarantees that “the
right of the people to keep and bear Arms, shall not be
infringed.” That right, however, is “not unlimited.”
District of Columbia v. Heller, 554 U.S. 570, 595 (2008).
8
This Court has recognized, for example, that the Second
Amendment allows the government to ban “dangerous
and unusual weapons,” id. at 627 (citation omitted), and
to exclude weapons from “sensitive places,” id. at 626.
So too, the Second Amendment allows the government
to disarm dangerous individuals—that is, those who
would pose a serious risk of harm to themselves or to
others if allowed to possess a firearm.
The Second Amendment “codified a right ‘inherited
from our English ancestors.’ ” Heller, 554 U.S. at 599
(citation omitted). In England, a 17th century statute
empowered the government to “seize all arms in the
custody or possession of any person” who was “judge[d]
dangerous to the Peace of the Kingdom.” Militia Act
1662, 13 & 14 Car. 2, c. 3, § 13. The use of that statute
“continued unabated” after the adoption of the 1689
English Bill of Rights, which expressly guaranteed the
right to keep and bear arms. Diarmuid F. O’Scannlain,
Glorious Revolution to American Revolution: The
English Origin of the Right to Keep and Bear Arms, 95
Notre Dame L. Rev. 397, 405 (2019).
Colonial and early state legislatures likewise disarmed individuals who “posed a potential danger” to
others. NRA v. Bureau of Alcohol, Tobacco, Firearms,
& Explosives, 700 F.3d 185, 200 (5th Cir. 2012), cert. denied, 571 U.S. 1196 (2014). Some early laws categorically disarmed entire groups deemed dangerous or untrustworthy, such as those who refused to swear allegiance. Ibid.; see, e.g., Act of May 1, 1776, ch. 21, § 1,
1776 Mass. Acts 479; Act of June 13, 1777, ch. 21, § 4,
1777 Pa. Laws 63; Act of May 28, 1777, ch. 3 (Va.), reprinted in 9 William Waller Hening, The Statutes at
Large; Being a Collection of all the Laws of Virginia
from the First Session of the Legislature, in the Year
9
1619, at 281-283 (1821). Other laws called for case-bycase judgments about dangerousness. See, e.g., Act for
Constituting a Council of Safety, ch. 40, § 20, 1777 N.J.
Laws 90 (empowering officials to “take from such Persons as they shall judge disaffected and dangerous to
the present Government, all the Arms, Accoutrements
and Ammunition which they own or possess”). Still
other laws disarmed individuals who had demonstrated
their dangerousness by engaging in particular types of
conduct, such as carrying arms in a manner that
spreads fear or terror among the people. See, e.g., Act
for the Punishing of Criminal Offenders, 1692 Mass.
Laws 11-12; Act for the Punishing Criminal Offenders,
1696-1701 N.H. Laws 15.
Precursors to the Second Amendment proposed in
the state ratifying conventions likewise suggest that
legislatures may disarm certain categories of individuals, including those who are dangerous. A proposal presented at the Pennsylvania ratifying convention, for instance, stated that “no law shall be passed for disarming
the people or any of them unless for crimes committed,
or real danger of public injury from individuals.”
2 Bernard Schwartz, The Bill of Rights: A Documentary History 665 (1971) (emphasis added). A proposal
presented by Samuel Adams at the Massachusetts ratifying convention likewise provided that Congress may
not “prevent the people of the United States, who are
peaceable citizens, from keeping their own arms.” Id.
at 681 (emphasis added).
Post-ratification practice points in the same direction. In the mid-19th century, many States enacted
laws requiring “those threatening to do harm” to “post
bond before carrying weapons in public.” New York
State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2148
10
(2022); see, e.g., Mass. Rev. Stat. ch. 134, § 16, 750
(1836); Me. Rev. Stat. ch. 169, § 16, 709 (1840); Mich.
Rev. Stat. ch. 162, § 16, 162 (1846). Those statutes show
that individuals who were “reasonably accused of intending to injure another or breach the peace” could
properly be subject to firearm restrictions that did not
apply to others. Bruen, 142 S. Ct. at 2148-2149. Or as
one early scholar wrote, the government may properly
restrict a person’s right to carry firearms when there is
“just reason to fear that he purposes to make an unlawful use of them.” William Rawle, A View of the Constitution of the United States of America 126 (2d ed. 1829).
The understanding that dangerous individuals could
be disarmed persisted after the Civil War. In 1866, for
example, a federal Reconstruction order applicable to
South Carolina provided that the “rights of all loyal and
well-disposed inhabitants to bear arms will not be infringed,” but that “no disorderly person, vagrant, or
disturber of the peace, shall be allowed to bear arms.”
Cong. Globe, 39th Cong., 1st Sess. 908-909 (1866). A circular issued by the Freedman’s Bureau at around the
same time explained that a person “may be disarmed if
convicted of making an improper or dangerous use of
weapons.” Bruen, 142 S. Ct. at 2152 (citation omitted).
In keeping with that history, this Court explained in
Heller that the right to keep and bear arms belongs only
to “law-abiding, responsible citizens.” 554 U.S. at 635.
And in Bruen, the Court stated that the Second Amendment protects the right of “an ordinary, law-abiding citizen” to possess and carry arms for self-defense. 142
S. Ct. at 2122. Those descriptions suggest that the government may properly disarm citizens who are dangerous, irresponsible, or unlikely to abide by the law.
11
Section 922(g)(8) fits squarely within the longstanding tradition of disarming dangerous individuals. Section 922(g)(8) applies only if the restraining order either
(1) includes a finding that the individual poses a “credible threat to the physical safety” of an intimate partner
or child or (2) expressly prohibits the “use, attempted
use, or threatened use of physical force” against the intimate partner or child. 18 U.S.C. 922(g)(8)(C). Everyone who satisfies the first criterion, by definition, poses
a danger to others. And in adopting the second criterion, Congress reasonably concluded that courts would
specifically prohibit the use, attempted use, or threatened use of force only if “evidence credited by the court
reflected a real threat or danger of injury to the protected party.” United States v. Emerson, 270 F.3d 203,
262 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).
The Texas law that authorized the restraining order
against respondent, for example, empowers a court to
prohibit a person from “committing family violence” if
that person has been “found to have committed family
violence” and the court determines that an order is
“necessary or appropriate to prevent or reduce the likelihood of family violence” in the future. Tex. Fam. Code
Ann. §§ 85.022(a) and (b)(1) (West Supp. 2019).
2. In concluding that Section 922(g)(8) lacks adequate historical support, the Fifth Circuit missed the
forest for the trees. The court overlooked the strong
historical evidence supporting the general principle
that the government may disarm dangerous individuals.
The court instead analyzed each historical statute in isolation and dismissed each one on the ground that it differed from Section 922(g)(8) in some way. For example,
the court discounted many laws because they rested on
“categori[cal]” judgments of dangerousness or unsuita-
12
bility to possess firearms rather than individualized
findings. App., infra, 19a. The court discounted other
laws because they sought to protect “society generally,”
not to prevent harm to “identified individuals.” Id. at
24a. And it disregarded still other laws because they
disarmed individuals only after criminal convictions, not
after civil proceedings. Ibid.
As an initial matter, the Fifth Circuit’s reasoning
was wrong on its own terms. Although some historical
laws disarmed categories of individuals legislatures
considered dangerous, other laws disarmed those who
had been found dangerous on a case-by-case basis. See
pp. 8-10, supra. And it would be bizarre if legislatures
could disarm dangerous individuals based on categorical presumptions, but not based on individualized judicial findings after notice and a hearing. Similarly, although some early laws disarmed those who posed a
threat to society at large, others applied to those who
posed threats to identified victims. See pp. 8-10, supra.
Finally, the Fifth Circuit was wrong to suggest that the
government cannot disarm dangerous individuals who
have not yet been convicted of crimes. As the laws discussed above show, legislatures have long disarmed
“dangerous people who have not been convicted of felonies.” Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019)
(Barrett, J., dissenting).
More fundamentally, the Fifth Circuit’s mode of
analysis was flawed. Although courts interpreting the
Second Amendment must consider text, history, and
tradition, they should not focus on whether the law at
issue has “a historical twin.” Bruen, 142 S. Ct. at 2133.
To the contrary, this Court emphasized that “even if a
modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass
13
constitutional muster.” Ibid. Section 922(g)(8) is “analogous enough” to its “historical precursors” because it
imposes similar burdens for similar reasons. Ibid. Like
them, it allows ordinary, law-abiding citizens to keep
and bear arms while disarming individuals who pose a
danger to others. Indeed, Section 922(g)’s temporary
disarmament imposes a significantly lesser burden than
those precursor laws, and does so for an especially compelling reason—preventing acute and demonstrated
threats of domestic violence.
B. This Court Should Review The Decision Below
1. This Court’s review is warranted because the
Fifth Circuit held an important federal statute unconstitutional on its face. Judging the constitutionality of
a federal statute is “the gravest and most delicate duty
that this Court is called on to perform.” Blodgett v.
Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.).
Accordingly, “when a lower court has invalidated a federal statute,” the Court’s “usual” approach is to grant
certiorari. Iancu v. Brunetti, 139 S. Ct. 2294, 2298
(2019). Indeed, the Court applies a “strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional.” Maricopa County v. Lopez-Valenzuela,
574 U.S. 1006, 1007 (2014) (statement of Thomas, J., respecting the denial of the application for a stay).
This Court has thus recently and repeatedly reviewed decisions invalidating federal statutes even in
the absence of a circuit conflict. See, e.g., Haaland v.
Brackeen, No. 21-376 (argued Nov. 9, 2022); Torres v.
Texas Department of Public Safety, 142 S. Ct. 2455,
2461 (2022); United States v. Vaello Madero, 142 S. Ct.
1539, 1542 (2022); Barr v. American Ass’n of Political
Consultants, Inc., 140 S. Ct. 2335, 2345-2346 (2020)
14
(plurality opinion); Allen v. Cooper, 140 S. Ct. 994, 1000
(2020). The Court should follow the same course here.
2. This Court’s review also is warranted because the
Fifth Circuit’s decision in this case conflicts with two
court of appeals decisions that predated Bruen but that
remain good law today. In the years preceding Bruen,
the courts of appeals had “coalesced around a ‘two-step’
framework for analyzing Second Amendment challenges.” Bruen, 142 S. Ct. at 2125. At the first step, the
government could justify the challenged regulation by
showing that it fell outside the scope of the Second
Amendment as originally understood; at the second
step, it could justify the regulation by showing that it
survived strict or intermediate scrutiny. See id. at 2126.
In Bruen, this Court recognized that the first step was
“broadly consistent with Heller,” but rejected the second step as “one step too many.” Id. at 2127.
Before Bruen, the Third and Eighth Circuits both
upheld Section 922(g)(8) under the first step of that twopart framework. In United States v. Boyd, 999 F.3d
171, cert. denied, 142 S. Ct. 511 (2021), the Third Circuit
found “longstanding historical support” for the principle that “ ‘legislatures have the power to prohibit dangerous people from possessing guns.’ ” Id. at 186 (citation omitted). It then concluded that “those who are
subject to domestic violence protective orders covered
by § 922(g)(8) fall within the historical bar of presumptively dangerous persons.” Ibid. Similarly, in United
States v. Bena, 664 F.3d 1180 (2011), the Eighth Circuit
cited “historical support” for disarming “citizens who
are not law-abiding and responsible.” Id. at 1183. The
court concluded that Section 922(g)(8) is consistent with
the “tradition” of limiting the right to keep and bear
arms to “peaceable” citizens. Id. at 1184. Because those
15
decisions applied the historical approach that Bruen endorsed, rather than the tiers-of-scrutiny approach that
Bruen rejected, they remain controlling precedents in
the Third and Eighth Circuits. The decision below directly conflicts with those decisions.2
3. The exceptional importance of the question presented underscores the need for this Court’s review.
“[D]omestic abuse is a serious problem in the United
States.” Georgia v. Randolph, 547 U.S. 103, 117 (2006).
Tens of millions of Americans “will, in the course of
their lifetimes, be the victims of intimate-partner
abuse.” Ibid. And the presence of a gun in a house with
a domestic abuser increases the risk of homicide sixfold.
See Castleman, 572 U.S. at 160.
The Fifth Circuit held, however, that the Second
Amendment forecloses Congress’s effort to address
that danger through Section 922(g)(8). That holding
has led to the suspension of criminal prosecutions under
Section 922(g)(8) in the nine judicial districts within the
Fifth Circuit. It has cast doubt on the enforceability of
Section 922(g)(8) state-law counterparts in Louisiana
and Texas. See La. Rev. Stat. Ann. § 14:79(A)(4) (Supp.
2023); Tex. Penal Code Ann. §§ 46.04(c) (West Supp.
2022). And if allowed to stand, it would thwart Congress’s considered judgment that persons who have
been found to be a threat to their intimate partners or
children should not be permitted to acquire or possess
firearms. Given the significant disruptive consequences
Three other courts of appeals, including the Fifth Circuit itself,
previously upheld Section 922(g)(8) under intermediate scrutiny.
See United States v. Chapman, 666 F.3d 220, 231 (4th Cir. 2012);
United States v. McGinnis, 956 F.3d 747, 758 (5th Cir. 2020), cert.
denied, 141 S. Ct. 1397 (2021); United States v. Reese, 627 F.3d 792,
801-804 (10th Cir. 2010), cert. denied, 563 U.S. 990 (2011).
2
16
of the Fifth Circuit’s decision, the government is filing
this petition for a writ of certiorari on a highly expedited
schedule—a little more than two weeks after the issuance of the Fifth Circuit’s final amended opinion—in order to allow the Court to consider the petition before it
recesses for the summer.
4. Finally, this Court should grant review so that it
can correct the Fifth Circuit’s misinterpretation of
Bruen. In Bruen, the Court emphasized that its historical test did not create a “regulatory straightjacket” and
that the government retains substantial power to regulate firearms to protect public safety. 142 S. Ct. at 2133.
Justice Alito emphasized the limits of the Court’s holding, writing that it “decides nothing about who may lawfully possess a firearm or the requirements that must
be met to buy a gun.” Id. at 2157 (Alito, J., concurring).
Justice Kavanaugh, too, wrote that, under the Court’s
decision, the Second Amendment “allows a ‘variety’ of
gun regulations.” Id. at 2162 (Kavanaugh, J., concurring) (citation omitted).
The Fifth Circuit’s decision contradicts those assurances. The Fifth Circuit treated even minor and immaterial distinctions between historical laws and their
modern counterparts as a sufficient reason to find the
modern laws unconstitutional. If that approach were
applied across the board, few modern statutes would
survive judicial review; most modern gun regulations,
after all, differ from their historical forbears in at least
some ways. This Court should grant the petition for a
writ of certiorari to clarify that, contrary to the Fifth
Circuit’s view, the Second Amendment allows the government to disarm dangerous individuals, including
those subject to domestic-violence restraining orders.
17
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KENNETH A. POLITE, JR.
Assistant Attorney General
BRIAN H. FLETCHER
Deputy Solicitor General
VIVEK SURI
Assistant to the Solicitor
General
WILLIAM A. GLASER
Attorney
MARCH 2023
APPENDIX
TABLE OF CONTENTS
Page
Appendix A
Appendix B
— Court of appeals opinion (Mar. 2, 2023) .... 1a
— Court of appeals opinion
(Feb. 2, 2023) ......................................... 42a
Appendix C — Court of appeals order (July 7, 2022) ...... 70a
Appendix D — Court of appeals opinion
(June 8, 2022) ......................................... 72a
Appendix E — District court order (June 3, 2021) .......... 78a
Appendix F — Constitutional and statutory provisions:
U.S. Const. Amend. II .......................... 81a
18 U.S.C. 922(g)(8) ................................ 81a
18 U.S.C. 924(a)(2) (2018) ..................... 82a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-11001
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
ZACKEY RAHIMI, DEFENDANT -APPELLANT
Filed:
Mar. 2, 2023
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:
Our prior panel opinion, United States v. Rahimi, 59
F.4th 163 (5th Cir. 2023), is WITHDRAWN and the following opinion is SUBSTITUTED therefor:
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.
(1a)
2a
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 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 that 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 reevaluate 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
The facts are drawn from the Pre-Sentence Report, which the
district court adopted, and the factual resume, to which Rahimi
stipulated.
1
3a
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 Tarrant County state
district court after Rahimi’s alleged assault of his exgirlfriend. The protective order prohibited Rahimi
from, inter alia, “[c]ommitting family violence,”
“[g]oing to or within 200 yards of the residence or place
of employment” of his ex-girlfriend, and “[e]ngaging in
conduct . . . including following the person, that is
reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” either his ex-girlfriend or a member of her family or household. 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
The validity of the underlying protective order, and Rahimi’s
breach of it, are not before us, though the order’s underlying prohibitions, e.g., restraining Rahimi from committing family violence,
from using or threatening use of physical force, from following,
harassing, annoying, abusing, or tormenting his ex-girlfriend, and
from going within 200 yards of his ex-girlfriend or her family (including their child), are plainly lawful and enforceable.
2
4a
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.
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
The Government urged Rahimi’s argument was also foreclosed
by United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
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 conclude that
§ 922(g)(8) is unconstitutional and vacate Rahimi’s sentence, we do
not further address the sentencing issue here.
3
5a
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. 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) [was] ‘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).
6a
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 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 dis-
7a
cussed 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 Sec-
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.
5
8a
ond Amendment. Therefore, argues the Government,
§ 922(g)(8) is constitutional as applied to Rahimi.
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 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 scope (Bruen adds “ordinary, law-abiding citizens”). And there is some debate
over the extent to which the Court’s “law-abiding” qualifier constricts the Second Amendment’s reach. 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., 836 F.3d 336, 357 (3d
9a
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.
That reading, in turn, leads us to conclude that, in
context, Heller simply uses “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. . . . ” 554 U.S. at 626-27;
accord Range v. Attorney Gen., 53 F.4th 262, 266 (3d
Cir. 2022) (upholding 18 U.S.C. § 922(g)(1), which prohibits firearm possession by convicted felons, because
“the people” categorically “excludes those who have
demonstrated disregard for the rule of law through the
commission of felony and felony-equivalent offenses”),
reh’g en banc granted, opinion vacated, 56 F.4th 992 (3d
Cir. 2023). In other words, Heller’s reference to “lawabiding, responsible” citizens meant to exclude from the
Court’s discussion groups that have historically been
stripped of their Second Amendment rights, i.e., groups
whose disarmament the Founders “presumptively” tolerated or would have tolerated. See 554 U.S. at 627,
n.26 (“We identify these presumptively lawful regula-
10a
tory measures only as examples; our list does not purport to be exhaustive.”). Bruen’s reference to “ordinary, law-abiding” citizens is no different. See 142
S. Ct. at 2134.
From the record before us, Rahimi did not fall into
any such group at the time he was charged with violating
§ 922(g)(8), so the “strong presumption” that he remained among “the people” protected by the amendment holds. When he was charged, Rahimi was subject
to an agreed domestic violence restraining order that
was entered in a civil proceeding. That alone does not
suffice to remove him from the political community
within the amendment’s scope. And, while he was suspected of other criminal conduct at the time, Rahimi was
not a convicted felon or otherwise subject to another
“longstanding prohibition[] on the possession of firearms” that would have excluded him. Heller, 554 U.S.
at 626-27; see Range, 53 F.4th at 273 (concluding that
Heller, McDonald v. City of Chicago, Ill., 561 U.S. 742
(2010), and Bruen support that criminals, as a group,
“fall[] outside ‘the people’ . . . and that § 922(g)(1) is
well-rooted in the nation’s history and tradition of firearm regulation”). 6
This discussion is not to cast doubt on firearm restrictions that
attach during criminal proceedings prior to conviction. E.g., 18
U.S.C. § 922(n) (prohibiting person under indictment from shipping, transporting, or receiving any firearm); 18 U.S.C.
§ 3142(c)(B)(viii) (allowing judicial officer to require person released on pretrial bond to “refrain from possessing a firearm, destructive device, or other dangerous weapon”). Those restrictions are not before us. We simply hew carefully to the Supreme
Court’s delineation of who falls within, and without, the overarching class of “law-abiding, responsible citizens” covered by the Second Amendment.
6
11a
Indeed, the upshot of the Government’s argument is
that the Second Amendment right can be readily divested, such that “a person could be in one day and out
the next: . . . his rights would be stripped as a selfexecuting consequence of his new status.” Kanter, 919
F.3d at 452 (Barrett, J., dissenting). But this turns the
typical way of conceptualizing constitutional rights on
its head. And the Government’s argument reads the
Supreme Court’s “law-abiding” gloss so expansively
that it risks swallowing the text of the amendment. Cf.
Bruen, 142 S. Ct. at 2156 (“The constitutional right to
bear arms in public for self-defense is not ‘a second-class
right, subject to an entirely different body of rules than
the other Bill of Rights guarantees.’ ”
(quoting
McDonald, 561 U.S. at 780)).
Further, the Government’s proffered interpretation
of “law-abiding” admits to no 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 among “the
people” entitled to the Second Amendment’s guarantees, all other things equal.
12a
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, 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
13a
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
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 selfdefense, and why the law burdens that right. Id. (citing McDonald, 561 U.S. at 767, and Heller, 544 U.S. at
599). “[W]hether modern and historical regulations
impose a comparable burden on the right of armed selfdefense 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
14a
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 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
15a
weapons officers discovered in his home.
2126.
See id. at
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 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
16a
an individual of his right to possess (i.e., “to keep”) firearms once a court enters an order, after notice and a
hearing, that restrains the individual “from harassing,
stalking, or threatening an intimate partner” or the
partner’s child. The order can rest on a specific finding
that the restrained individual poses a “credible threat”
to an intimate partner or her child. Or it may simply
include a general prohibition on the use, attempted use,
or threatened use of physical force reasonably expected
to cause bodily injury. 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 or accused 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 proceeding7 (3) in which a court enters a protective
order based on a finding of a “credible threat” to another
specific person, or that includes a blanket prohibition on
the use, of threatened use, of physical force, (4) in order
to protect that person from “domestic gun abuse.” The
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.
7
17a
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 falters 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
18a
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 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
19a
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 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.
But we question at a threshold level whether colonial
and state laws disarming categories of “disloyal” or
“unacceptable” people present tenable analogues to
§ 922(g)(8). Laws that disarmed slaves, Native Americans, and disloyal people may well have been targeted at
groups excluded from the political community—i.e.,
written out of “the people” altogether—as much as they
were about curtailing violence or ensuring the security
20a
of the state. Their utility as historical analogues is
therefore dubious, at best. In any event, these laws fail
on substance as analogues to § 922(g)(8), because out of
the gate, why they disarmed people was different. The
purpose of laws disarming “disloyal” or “unacceptable”
groups was ostensibly the preservation of political and
social order, not the protection of an identified person
from the threat of “domestic gun abuse,” McGinnis, 956
F.3d at 758, posed by another individual. Thus, 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 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
21a
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 or
weapons to be taken away. . . . ” Acts and Laws of
His Majesty’s Province of New-Hampshire: In NewEngland; 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
22a
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 doubtful 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, just four years after the ratification of the
23a
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). 8 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
—or, who are simply governed by a civil order that “by
its terms explicitly prohibits the use, attempted use, or
threatened use of physical force,” § 922(g)(8)(C)(ii),
whether or not there is a “credible threat to the physical
safety” of anyone else, § 922(g)(8)(C)(i). Rahimi’s domestic violence restraining order satisfied both conditions; but it bears emphasis that the order at issue here
was entered by agreement, in a civil proceeding, after
Rahimi apparently waived hearing (the order states no
formal hearing was held, and no record was created),
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.
8
24a
and without counsel or other safeguards that would be
afforded him in the criminal context. These distinctions alone defeat the “going armed” laws as useful analogues for § 922(g)(8).
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.
And § 922(g)(8) works to disarm not only individuals who
are threats to other individuals but also every party to a
domestic proceeding (think: divorce court) who, with no
history of violence whatever, becomes subject to a domestic restraining order that contains boilerplate language that tracks § 922(g)(8)(C)(ii). In other words,
where “going armed” laws were tied to violent or riotous
conduct and threats to society, § 922(g)(8) implicates a
much wider swath of conduct, not inherently dependent
on any actual violence or threat. 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 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
25a
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. 9
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).10
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 NewEngland; 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).
10
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 “crime statistics from the founding era are hard
9
26a
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)(C)(i)’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.
And, as discussed supra, § 922(g)(8)(C)(ii) works that
deprivation based on an order that “prohibits the use,
attempted use, or threatened use of physical force,”
whether there is a “just cause to fear” any harm, or not.
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).
* * *
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.
27a
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.11 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
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.”); Keateon G. Hille, The Second
Amendment: From Miller to Chovan, and Why the Marzzarella
Framework is the Best Shot Courts Have, 50 GONZ. L. REV. 377,
392 (2015) (acknowledging that the “prohibition on firearms possession by domestic violence misdemeanants is not longstanding”
and advocating for a means-ends test); Allen Rostron, Justice
Breyer’s Triumph in the Third Battle Over the Second Amendment, 80 GEO. WASH. L. REV. 703, 741 (2012) (“If longstanding tradition is the key common characteristic of the items on the Heller
list, modern legal innovations like the ban on guns for domestic violence misdemeanants, however much they may reduce risks and
benefit society, do not qualify.”).
11
28a
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.
29a
JAMES C. HO, Circuit Judge, concurring:
The right to keep and bear arms has long been recognized as a fundamental civil right. Blackstone saw it
as an essential component of “ ‘the natural right’ ” to
“ ‘self-preservation and defence.’ ” District of Columbia v. Heller, 554 U.S. 570, 593-94 (2008) (quoting 1 WILLIAM B LACKSTONE , C OMMENTARIES ON THE LAWS OF
ENGLAND 139-40 (1765)). And the Supreme Court has
repeatedly analogized the Second Amendment to other
constitutional rights guaranteed to every American.
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) (comparing “the commands of the First Amendment” to “the equally unqualified command of the Second Amendment”); N.Y. State Rifle & Pistol Ass’n v.
Bruen, 142 S. Ct. 2111, 2126, 2130 (2022) (quoting Konigsberg).
But lower courts have routinely ignored these principles, treating the Second Amendment as “a second-class
right.” McDonald v. City of Chicago, 561 U.S. 742, 780
(2010) (plurality opinion). So the Supreme Court has
now commanded lower courts to be more forceful guardians of the right to keep and bear arms, by establishing
a new framework for lower courts to apply under the
Second Amendment.
“When the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively
protects that conduct.” Bruen, 142 S. Ct. at 2129-30.
“The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. at 2130.
30a
“[T]his historical inquiry that courts must conduct will
often involve reasoning by analogy—a commonplace
task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a
proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar.’ ” Id. at 2132. This
framework “is neither a regulatory straightjacket nor a
regulatory blank check.” Id. at 2133. It requires the
government to “identify a well-established and representative historical analogue, not a historical twin.”
Id.
Our court’s decision today dutifully applies Bruen,
and I join it in full. I write separately to explain how
respect for the Second Amendment is entirely compatible with respect for our profound societal interest in
protecting citizens from violent criminals. Our Founders firmly believed in both the fundamental right to keep
and bear arms and the fundamental role of government
in combating violent crime.
I.
“[T]he right to keep and bear arms . . . has controversial public safety implications.”
Bruen, 142
S. Ct. at 2126 n.3 (quotations omitted). But it’s hardly
“the only constitutional right” that does. Id. (quotations omitted, emphasis added). To the contrary, “[a]ll
of the constitutional provisions that impose restrictions
on law enforcement and on the prosecution of crimes fall
into the same category.” McDonald, 561 U.S. at 783
(plurality opinion).
So any legal framework that involves any of these
constitutional provisions can have significant and con-
31a
troversial public safety consequences. A framework
that under-protects a right unduly deprives citizens of
liberty. But a framework that over-protects a right unduly deprives citizens of competing interests like public
safety.
Take, for example, the exclusionary rule. See Mapp
v. Ohio, 367 U.S. 643 (1961). Since its inception, the
rule has been sharply criticized for over-protecting the
accused and releasing dangerous criminals into our
neighborhoods. It’s often said that nothing in the Constitution requires the criminal to “go free because the
constable has blundered.” Herring v. United States,
555 U.S. 135, 148 (2009) (quoting People v. Defore, 150
N.E. 585, 587 (N.Y. 1926)). “The exclusionary rule
generates substantial social costs” by “setting the guilty
free and the dangerous at large.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (cleaned up).
The same can be said about Miranda v. Arizona, 384
U.S. 436 (1966). The Supreme Court has “repeatedly
referred to the Miranda warnings as ‘prophylactic’ and
‘not themselves rights protected by the Constitution.’ ”
Dickerson v. United States, 530 U.S. 428, 437-38 (2000)
(citations omitted). What’s more, “[i]n some unknown
number of cases the Court’s rule will return a killer, a
rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” Miranda, 384 U.S. at 542 (White,
J., dissenting).
So it’s easy to see why decisions like Mapp and Miranda have been criticized for over-protecting constitutional rights and harming public safety.
32a
But there’s a big difference between the first criticism and the second, at least as far as the judiciary is
concerned. It’s our duty as judges to interpret the
Constitution based on the text and original understanding of the relevant provision—not on public policy considerations, or worse, fear of public opprobrium or criticism from the political branches. See, e.g., McDonald,
561 U.S. at 783 (plurality opinion) (finding “no case in
which we have refrained from holding that a provision
of the Bill of Rights is binding on the States on the
ground that the right at issue has disputed public safety
implications”); Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228, 2278 (2022) (“[W]e cannot allow our decisions to be affected by any extraneous influences such
as concern about the public’s reaction to our work.”);
Mance v. Sessions, 896 F.3d 390, 405 (5th Cir. 2018) (Ho,
J., dissenting from denial of rehearing en banc) (“Constitutional rights must not give way to hoplophobia.”).
And that’s precisely the problem here: Members of
the Supreme Court have repeatedly criticized lower
courts for disfavoring the Second Amendment. 1 The
See, e.g., Silvester v. Becerra, 138 S. Ct. 945, 945 (2018) (Thomas, J., dissenting from denial of certiorari) (bemoaning “lower
courts’ general failure to afford the Second Amendment the respect due an enumerated constitutional right”); Peruta v. California, 137 S. Ct. 1995, 1999 (2017) (Thomas, J., joined by Gorsuch, J.,
dissenting from denial of certiorari) (lamenting “distressing trend”
of “the treatment of the Second Amendment as a disfavored
right”); Friedman v. City of Highland Park, 136 S. Ct. 447, 447
(2015) (Thomas, J., joined by Scalia, J., dissenting from denial of
certiorari) (criticizing “noncompliance with our Second Amendment precedents” by “several Courts of Appeals”); Jackson v. City
& Cty. of San Francisco, 135 S. Ct. 2799, 2799 (2015) (Thomas, J.,
joined by Scalia, J., dissenting from denial of certiorari) (“lower
courts, including the ones here, have failed to protect [the Second
1
33a
Supreme Court has now responded by setting forth a
new legal framework in Bruen. It is incumbent on
lower courts to implement Bruen in good faith and to
the best of our ability.
Bruen calls on us to examine our Nation’s history and
traditions to determine the meaning and scope of the
Second Amendment. It’s hardly the first time that the
Supreme Court has looked to history and tradition to interpret constitutional provisions. 2 And it surely won’t
be the last.
Amendment right]”); id. at 2802 (“ ‘A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.’ ”) (quoting Heller, 554 U.S. at 634).
2
See, e.g., Myers v. United States, 272 U.S. 52, 109-76 (1926) (noting that “the power of removal of executive officers . . . was presented early in the first session of the First Congress,” known as the
“decision of 1789,” and also surveying English and colonial history
and subsequent Congressional and Executive practice); Marsh v.
Chambers, 463 U.S. 783, 786-92 (1983) (noting that “[t]he opening of
sessions of legislative and other deliberative public bodies with
prayer is deeply embedded in the history and tradition of this country” and surveying colonial history, the deliberations of the First
Congress, and “unambiguous and unbroken history of more than 200
years”); Crawford v. Washington, 541 U.S. 36, 43-50 (2004) (examining the “historical background” of the Confrontation Clause, noting
that “[t]he right to confront one’s accusers is a concept that dates
back to Roman times,” and surveying English history and colonial
and early state practice); United States v. Stevens, 559 U.S. 460, 46869 (2010) (reviewing “historic and traditional categories” of speech
that government has been allowed to regulate “[f]rom 1791 to the
present”); Timbs v. Indiana, 139 S. Ct. 682, 687-89 (2019) (observing
that “[t]he Excessive Fines Clause traces its venerable lineage back
to at least 1215” and surveying authorities from English history and
colonial practice).
34a
II.
Those who commit violence, including domestic violence, shouldn’t just be disarmed—they should be detained, prosecuted, convicted, and incarcerated. And
that’s exactly why we have a criminal justice system—
to punish criminals and disable them from engaging in
further crimes.
The Constitution presumes the existence of a criminal justice system. See, e.g., U.S. CONST. amends. V,
VI (setting forth various rights of the accused in criminal proceedings); U.S. CONST. amend. VIII (prohibiting
cruel and unusual punishments). That system allows
the government to deny convicted criminals a wide
range of liberties that it could not deny to innocent, lawabiding citizens. For example, the government cannot
deprive innocent citizens of their liberty of movement.
See, e.g., Williams v. Fears, 179 U.S. 270, 274 (1900);
City of Chicago v. Morales, 527 U.S. 41, 53 (1999). But
it can certainly arrest and incarcerate violent criminals.
Arrest and incarceration naturally entail the loss of a
wide range of liberties—including the loss of access to
weapons. 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 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.”).
The Supreme Court has also made clear that our Nation’s history and traditions include “longstanding pro-
35a
hibitions on the possession of firearms by felons”—and
that such measures are “presumptively lawful.” Heller, 554 U.S. at 626 & n.26. See also McDonald, 561
U.S. at 786 (plurality opinion) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the
possession of firearms by felons,’ ” and “[w]e repeat
those assurances here. . . . [I]ncorporation does not
imperil every law regulating firearms.”). So the government can presumably disarm dangerous convicted
felons, whether they’re incarcerated or not, without violating the Second Amendment.
The Second Amendment is not “a second-class right.”
Bruen, 142 S. Ct. at 2156. It is not “subject to an entirely different body of rules than the other Bill of Rights
guarantees.” Id. That principle guides us here: The
government can impose various restrictions on the rights
of dangerous convicted felons, consistent with our Nation’s history and traditions—and that includes the right
to keep and bear arms.
III.
The power to incarcerate violent criminals is not just
constitutionally permissible—it’s imperative to protecting victims. After all, anyone who’s willing to break
the law when it comes to domestic violence is presumably willing to break the law when it comes to guns as
well. The only way to protect the victim may be to detain as well as disarm the violent criminal.
For example, the government can detain and disarm,
not just after conviction, but also before trial. Pre-trial
detention is presumed by the Excessive Bail Clause and
the Speedy Trial Clause. And it plays a significant role
36a
in protecting citizens from violence, including domestic
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”).
In addition, the government can detain and disarm,
based not just on acts of violence, but criminal threats
of violence as well. 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. App. 2021) (same), cert.
granted sub nom. Counterman v. Colorado, 143 S. Ct.
644 (2023). After all, to the victim, such actions are not
only life-threatening—they’re life-altering, even if they
don’t eventually result in violence.
IV.
18 U.S.C. § 922(g)(8) disarms individuals based on
civil protective orders—not criminal proceedings. As
the court today explains, there is no analogous historical
tradition sufficient to support § 922(g)(8) under Bruen.
Moreover, there are additional reasons why disarmament based on civil protective orders should give us
pause. Scholars and judges have expressed alarm that
civil protective orders are too often misused as a tactical
device in divorce proceedings—and issued without any
actual threat of danger. That makes it difficult to justify § 922(g)(8) as a measure to disarm dangerous individuals.
37a
A.
“Many divorce lawyers routinely recommend pursuit
of civil protection orders for clients in divorce proceedings . . . as a tactical leverage device.” Jeannie
Suk, Criminal Law Comes Home, 116 YALE L.J. 2, 62
n.257 (2006). See also, e.g., Randy Frances Kandel,
Squabbling in the Shadows: What the Law Can Learn
from the Way Divorcing Couples Use Protective Orders
as Bargaining Chips in Domestic Spats and Child Custody Mediation, 48 S.C. L. REV. 441, 448 (1997) (civil
protective orders are deployed as “an affirmative element of divorce strategy”).
That’s because civil protective orders can help a
party in a divorce proceeding to “secure [favorable] rulings on critical issues such as [marital and child] support, exclusion from marital residence and property disposition.” Murray v. Murray, 631 A.2d 984, 986 (N.J.
Super. Ct. App. Div. 1993). Protective orders can also
be “a powerful strategic tool in custody disputes.” Suk,
supra, at 62.
That makes civil protective orders a tempting target
for abuse. Judges have expressed “concern[] . . .
with the serious policy implications of permitting allegations of . . . domestic violence” to be used in divorce
proceedings. Murray, 631 A.2d at 986. See also City of
Seattle v. May, 256 P.3d 1161, 1166 n.1 (Wash. 2011)
(Sanders, J., dissenting) (noting “the growing trend to
use protection orders as tactical weapons in divorce
cases”). And for good reason. “[N]ot all parties to divorce are above using [protective orders] not for their
intended purpose but solely to gain advantage in a dissolution.” Scott A. Lerner, Sword or Shield? Combating Orders-of-Protection Abuse in Divorce, 95 ILL.
38a
BAR J. 590, 591 (2007). Anyone who is “willing to commit perjury can spend months or even years . . .
planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding.” David N. Heleniak, The New Star
Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act, 57 RUTGERS L. REV.
1009, 1014 (2005). So “[a] plaintiff willing to exaggerate past incidents or even commit perjury can have access to a responsive support group, a sympathetic court,
and a litany of immediate relief.” Peter Slocum, Biting
the D.V. Bullet: Are Domestic-Violence Restraining
Orders Trampling on Second Amendment Rights?, 40
SETON HALL L. REV. 639, 662-63 (2010).
Moreover, these concerns are exacerbated by the fact
that judges are too often ill-equipped to prevent abuse.
Family court judges may face enormous pressure to
grant civil protective orders—and no incentive to deny
them. For example, family court judges may receive
mandatory training in which they’re warned about “the
unfavorable publicity” that could result if they deny requests for civil protective orders. Id. at 668. As one
judge has noted, “[a] newspaper headline can be death
to a municipal court judge’s career.” Id. at 667 n.213
(quotations omitted). So “the prospect of an unfavorable newspaper headline is a frightening one.” Id. To
quote another judge: “Your job is not to become concerned about all the constitutional rights of the [defendant] you’re violating as you grant a restraining order.
Throw him out on the street, give him the clothes on his
back and tell him, ‘See ya’ around.’ ” Id. at 668. Yet
another judge said: “If there is any doubt in your mind
about what to do, you should issue the restraining order.” Id.
39a
As a result, “[r]estraining orders . . . are granted
to virtually all who apply.” May, 256 P.3d at 1166 n.1
(Sanders, J., dissenting) (quotations omitted).
So
there’s a “tremendous” risk that courts will enter protective orders automatically—despite the absence of
any real threat of danger. Heleniak, supra, at 1014.
See generally Slocum, supra. In one case, for example,
a family court judge granted a restraining order on the
ground that the husband told his wife that he did not
love her and was no longer attracted to her. See Murray, 631 A.2d at 984. “There was no prior history of
domestic violence,” yet the judge issued the order anyway. Id. Another judge issued a restraining order
against David Letterman on the ground that his presence on television harassed the plaintiff. See Todd Peterson, David Letterman Fights Restraining Order,
PEOPLE (Dec. 21, 2005).
These orders were later rescinded. But the defendants were nevertheless prohibited from possessing a
firearm while the orders were in effect, as a result of
§ 922(g)(8).
B.
Moreover, the consequences of disarming citizens
under § 922(g)(8) may be especially perverse considering the common practice of “mutual” protective orders.
In any domestic violence dispute, a judge may see no
downside in forbidding both parties from harming one
another. A judge “may think that mutual restraining
orders are not substantially different from regular restraining orders—after all, the goal is to keep the parties away from one another so that the violence will not
continue.” Jacquie Andreano, The Disproportionate
40a
Effect of Mutual Restraining Orders on Same-Sex Domestic Violence Victims, 108 CAL. L. REV. 1047, 1054
(2020). “Judges may also feel that issuing a mutual restraining order saves time because they do not have to
hear testimony and make a finding regarding which
party is a primary aggressor or even that one party has
committed domestic violence.” Id.
But “[t]hese judicial assessments have often led to
the issuance of unmerited mutual restraining orders,
namely in situations where one party is the abuser and
the other party is a victim.” Id. (emphasis added).
As a result, “both parties are restrained even if only one
is an abuser.” Id. at 1055 (emphasis added). See also
Elizabeth Topliffe, Why Civil Protection Orders Are Effective Remedies for Domestic Violence but Mutual
Protective Orders Are Not, 67 Ind. L.J. 1039, 1055-56
(1992) (“[J]udges often issue a mutual protection order
without any request from the respondent or his lawyer.
. . . [J]udges and lawyers . . . may be tempted to
resort to mutual protective orders frequently. However, when they do this in cases where there truly is one
victim and one batterer, they ignore some of the real difficulties of mutual protection orders.”). See generally
DAVID HIRSCHEL, NAT ’L CRIMINAL JUSTICE REFERENCE SERV., DOMESTIC VIOLENCE CASES : WHAT RESEARCH SHOWS ABOUT ARREST AND DUAL ARREST
RATES (2008).
The net result of all this is profoundly perverse, because it means that § 922(g)(8) effectively disarms victims of domestic violence. What’s worse, victims of domestic violence may even be put in greater danger than
before. Abusers may know or assume that their victims are law-abiding citizens who will comply with their
41a
legal obligation not to arm themselves in self-defense
due to § 922(g)(8). Abusers might even remind their
victims of the existence of § 922(g)(8) and the entry of a
mutual protective order to taunt and subdue their victims. Meanwhile, the abusers are criminals who have
already demonstrated that they have zero propensity to
obey the dictates of criminal statutes. As a result,
§ 922(g)(8) effectively empowers and enables abusers by
guaranteeing that their victims will be unable to fight
back.
* * *
We must protect citizens against domestic violence.
And we can do so without offending the Second Amendment framework set forth in Bruen.
Those who commit or criminally threaten domestic
violence have already demonstrated an utter lack of respect for the rights of others and the rule of law. So
merely enacting laws that tell them to disarm is a woefully inadequate solution. Abusers must be detained,
prosecuted, and incarcerated. And that’s what the
criminal justice system is for. I concur.
42a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-11001
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
ZACKEY RAHIMI, DEFENDANT -APPELLANT
Filed:
Feb. 2, 2023
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 precedent. See United
43a
States v. Rahimi, No. 21-11011, 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 reevaluate 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
The facts are drawn from the Pre-Sentence Report, which the
district court adopted, and the factual resume, to which Rahimi
stipulated.
1
44a
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 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.
. . .
The validity of the underlying protective order, and Rahimi’s
breach of it, are not before us.
2
45a
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.
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 SuThe Government urged Rahimi’s argument was also foreclosed
by United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
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.
3
46a
preme 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. 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
47a
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 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 protec-
48a
tions. 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 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 nowJustice 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
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.
5
49a
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 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.
50a
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 (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 con-
51a
straints).” 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 “nonlaw 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, asserting during oral argument
52a
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 af-
53a
ter the founding [that] evinces a comparable tradition of
regulation.” Id. at 2131-32 (internal quotation marks
omitted). “[W]e we 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 selfdefense, 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.
54a
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 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
55a
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 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.
56a
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 proceeding6 (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
“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 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.
6
57a
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 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 Fu-
58a
ture 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 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
59a
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 Second Amendment that lim-
60a
ited the scope of the right to “peaceable citizens.”
at 681.
Id.
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
61a
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 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
62a
“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, 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
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.
7
63a
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 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
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
8
64a
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
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
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
“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.
65a
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
* * *
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.”
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.”).
10
66a
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.
67a
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 B LACKSTONE , C OMMENTARIES 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
68a
knew that arrest and incarceration naturally entails the
loss of a wide range of liberties—including the loss of
access to arms.1
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, 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 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.”).
1
69a
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.
70a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-11001
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
ZACKEY RAHIMI, DEFENDANT -APPELLANT
Filed:
July 7, 2022
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-83-1
ORDER
Before KING, COSTA, and HO, Circuit Judges.
PER CURIAM:
The opinion filed on June 8, 2022, United States v.
Rahimi, No. 21-11001, 2022 WL 2070392 (5th Cir. June
8, 2022), is hereby WITHDRAWN. The Clerk is directed to expedite this case and set it for oral argument
on the next available calendar. The pending petition
for rehearing en banc is hereby DISMISSED as moot.
The parties shall file additional briefing addressing the
71a
effect of New York State Rifle & Pistol Association v.
Bruen on this case on a schedule set by the Clerk’s office.
So ORDERED.
72a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 21-11001
Summary Calendar
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
ZACKEY RAHIMI, DEFENDANT -APPELLANT
Filed:
June 8, 2022
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-83-1
Before KING, COSTA, and HO, Circuit Judges.
PER CURIAM:1
Zackey Rahimi, after being charged with various
state offenses, pleaded guilty to a violation of federal law
for possessing a firearm in contravention of a restraining order. The district court ordered Rahimi’s federal
sentence of imprisonment to run concurrently with certain state-case sentences but to run consecutively with
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIRCUIT RULE
47.5.4.
*
73a
other state-case sentences because the acts involved in
the latter were not “relevant conduct” for purposes of
U.S.S.G. § 1B1.3. Rahimi appeals, challenging the
finding that certain acts were not relevant conduct.
We find no clear error and affirm.
I.
Zackey Rahimi was suspected to have participated in
a series of shootings that occurred between December
2020 and January 2021. As a result, police officers obtained a warrant to search his residence, and when they
executed the warrant, they found a pistol and a restraining order issued on February 5, 2020. The order restrained Rahimi from possessing a firearm and warned
him that possession of a firearm or ammunition while
the order was in effect could be a felony under 18 U.S.C.
§ 922(g) and § 924(a)(2).
A federal grand jury indicted Rahimi for possession
of firearms in violation of sections 922(g)(8) and 924(a)(2).1
Later, Rahimi pleaded guilty.
At sentencing, the
presentence investigation report (“PSR”) detailed
Rahimi’s lengthy criminal history. Relevant to this appeal are the state charges that were pending against him
for offenses that occurred from December 2019 to November 2020. Three pending state charges resulted
from Rahimi’s use of a firearm in the physical assault of
Rahimi moved to dismiss the indictment on the ground that section 922(g)(8) on its face violates the Second Amendment and the
district court denied the motion. Rahimi appeals this decision but
acknowledges that it is foreclosed by our binding precedent. United
States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), cert. denied, 141
S. Ct. 1397 (2021).
1
74a
his girlfriend in December 2019, 2 and another state
charge arose from an aggravated assault with a deadly
weapon of a different woman in November 2020. Rahimi
objected to the PSR, arguing that the pending charges
described relevant conduct to the instant offense such
that the sentence for the instant federal offense should
be ordered to run concurrently to the state sentences.
The district court overruled the objection, adopted the
PSR, and ordered the federal sentence to run consecutively to the pending charges because they were not relevant conduct. Rahimi appeals, arguing that the district court clearly erred by concluding the pending
charges were not relevant conduct.
II.
A determination of relevant conduct is a finding of
fact that is reviewed for clear error. United States v.
Brummett, 355 F.3d 343, 344-45 (5th Cir. 2003). A district court has the discretion to order its sentences of
imprisonment be served concurrently or consecutively
to anticipated state terms of imprisonment. Setser v.
United States, 566 U.S. 231, 236 (2012). A determination of relevant conduct is “not clearly erroneous as long
as [it is] ‘plausible in light of the record as a whole.’ ”
United States v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010)
(quoting United States v. Rhine, 583 F.3d 878, 885 (5th
Cir. 2009)).
The sentencing guidelines provide that “the sentence
for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment” if anThe charges included terroristic threat of a family/household
member, discharge of a firearm in certain municipalities, and family
violence assault causing bodily injury.
2
75a
other offense is “relevant conduct . . . under the
provisions of subsections (a)(1), (a)(2), or (a)(3) of
§ 1B1.3.” U.S.S.G. § 5G1.3(c). “Relevant conduct is
defined as ‘all acts and omissions’ that . . . [are] part
of the ‘same course of conduct’ as the offense of conviction.”
Ortiz, 613 F.3d at 557 (quoting U.S.S.G.
§ 1B1.3(a)(2)). Two or more offenses may constitute as
the same course of conduct “if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” § 1B1.3, cmt. (n.5(B)(ii)).
Relevant factors include “the degree of similarity of the
offenses, the regularity (repetitions) of the offenses, and
the time interval between the offenses.” Id.
III.
Rahimi argues that the pending charges are relevant
to the instant federal charge because they are all a part
of a pattern of ongoing (i.e., similar) conduct involving a
firearm and domestic violence. He contends that the
temporal proximity favors a finding of relevant conduct
because the November 2020 conduct occurred just two
months before the search of his residence (resulting in
the instant charge) and the December 2019 conduct was
little more than a year prior to the instant offense.
Last, Rahimi argues that the number of similar crimes
involving firearm possession shows regularity.
However, we conclude that the record as a whole supports the district court’s finding that the pending state
charges are not a part of the same course of conduct as
Rahimi’s possession of a firearm in violation of a restraining order.
First, although the record shows
some regularity to Rahimi’s violent use—and thus possession—of a firearm, we have previously held that a 10-
76a
month lag between a past act and the instant offense is
“not strong” evidence of temporal proximity for purposes of section 1B1.3. United States v. Davis, 967
F.3d 441, 442 (5th Cir. 2020) (per curiam). Second,
Rahimi’s December 2019 conduct involved the domestic
assault of his girlfriend in a public parking lot. When
warned by his passenger about the presence of another
witness, Rahimi fired a shot at the witness. The instant offense involves no public violence or domestic assault and so bears little resemblance to the December
2019 events.
Similarly, Rahimi’s November 2020 conduct involved
the violent use of a firearm in furtherance of an assault.
Indeed, Rahimi’s possession of a firearm in that instance
was also a violation of the February 2020 restraining order, but “[a]s we have previously cautioned . . . courts
must not conduct this [similarity] analysis at such a level
of generality as to render it meaningless.” United
States v. Rhine, 583 F.3d 878, 888 (5th Cir. 2009).
Rahimi’s violent use of the firearm in November is
meaningfully different from merely possessing a firearm. Cf. United States v. Horton, 993 F.3d 370, 376
(5th Cir.), cert. denied, 142 S. Ct. 382 (2021) (finding
meaningful differences in the location of the conduct and
amount of drugs at issue on different occasions). Because the similarity and temporal-proximity factors are
strained,3 the district court’s finding that these previous acts are not relevant conduct is “plausible in light of
See Davis, 967 F.3d at 442 (finding no relevant conduct when the
temporal proximity was “not strong” and the other two factors were
“arguably absent”).
3
77a
the record as a whole,” and accordingly is not clearly erroneous. Rhine, 583 F.3d at 885.
III.
For the foregoing reasons, we AFFIRM.
78a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORTH WORTH DIVISION
No. 4:21-cr-00083-P
UNITED STATES OF AMERICA
v.
ZACKEY RAHIMI (01)
Filed:
June 3, 2021
ORDER
Before the Court is Defendant Zackey Rahimi’s Motion to Dismiss Indictment Under FED. R. CR. P. 12
(b)(3)(B). ECF No. 17. Having considered Rahimi’s
Motion to Dismiss Indictment (“Motion”), the Government’s Response, briefing, and applicable law, the Court
finds that Rahimi’s Motion to Dismiss Indictment
should be and is hereby DENIED.
18 U.S.C. § 922(g)(8) restricts an individual’s access
to firearms and ammunition if that individual is subject
to a specific court order. The court order prevents that
individual from engaging in conduct that would place an
intimate partner or child in fear of bodily injury. 18
U.S.C. § 922(g)(8). Defendant asserts that 18 U.S.C.
§ 922(g)(8) is a facially unconstitutional restriction on a
person’s Second Amendment rig
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.