Narrow Gun Opinion Says Law Not in ‘Amber,’ But History Rules

Last week, the US Supreme Court upheld a federal law prohibiting an individual subject to a domestic violence restraining order from possessing a firearm. The 8-1 opinion offers much-needed clarity in this area, and is a victory for domestic violence survivors and their advocates.

However, the decision doesn’t represent a watershed moment for gun regulation. The narrowly tailored opinion focuses on a problematic historical analysis. It leaves open many questions about constitutionality of modern gun regulation, and allows courts assessing gun laws to set aside evidence of firearms’ harms in today’s society.

Writing for the majority in United States v. Rahimi, Chief Justice John Roberts noted that an individual subject to a restraining order can be prohibited from possessing a firearm consistent with the Second Amendment “when a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner.”

The court reasoned that since “the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” and the regulation at issue “fits comfortably” within that tradition.

To fully appreciate the Rahimi decision, we must recognize the widespread confusion lower courts encountered when interpreting NYSA Rifle Association v. Bruen. There, the Supreme Court struck down a New York state licensing statute, and noted that when analyzing the constitutionality of firearms regulations, lower courts had to examine whether the regulation was rooted in a historical tradition of firearms regulation.

The Bruen decision emphasized that for the regulation to survive a constitutional challenge, it should adhere to principles of the Second Amendment, but need not be a “historical twin” of previous regulations. An analogue would suffice.

This new analysis abandoned previous methodology that allowed lower courts to balance history with whether the laws were tailored to achieve an important governmental interest like public safety. Justice Ketanji Brown Jackson noted in her Rahimi concurrence the lower courts’ confusion applying this test is “indisputable,” and the Supreme Court’s failure to articulate a clearer standard is to blame.

In Rahimi, the court had “no trouble” finding that the statute at issue “fits comfortably” in the historical tradition. The court devoted much of the opinion to demonstrating that surety laws and “going armed” laws are sufficient historical analogues to the modern statute, and there has been a historical tradition of preventing those who threaten the physical safety of others from misuse of firearms.

In what is sure to be the most quoted line from the opinion, Roberts declared the court’s Second Amendment precedents “were not meant to suggest a law trapped in amber.”

Perhaps the court had “no trouble” because the facts of this case couldn’t have offered a better picture of who needs to be temporarily disarmed. Zackey Rahimi was subject to a domestic violence protection order after assaulting his girlfriend in December 2019. A state court entered a protective order against him in early 2020, noting he had committed an act of family violence and it was likely to reoccur.

While subject to that order, he engaged in numerous acts of violence including assaulting another woman and in a separate incident, a shooting. When he was arrested for one such incident, a search of his home revealed a rifle, ammunition, and a copy of the restraining order. Prosecutors indicted Rahimi under Section 922(g)(8), and Rahimi appealed, arguing that the law was unconstitutional given the Bruen decision.

Justice Clarence Thomas, the lone dissenter, clung to the historical analysis he articulated in his majority opinion in Bruen. He would have struck down the law at issue in Rahimi because, in his view, there were no historical analogues. The majority dismissed this and noted that what Thomas articulated amounted to requiring a historical twin.

Despite the additional clarity for lower courts and victory for advocates for domestic violence survivors, problems and questions regarding the court’s Second Amendment jurisprudence persist. Justice Sonia Sotomayor recognized that Bruen’s “myopic focus on history” restricts the ability of legislatures to enact gun regulations that address modern problems. Rahimi’s adherence to the Bruen methodology will allow lower courts to ignore important evidence regarding the modern-day impact of gun violence in our country when assessing new regulations.

In addition to its adherence to this problematic historical analysis, the majority was also quick to note the narrowness of its holding in Rahimi. Roberts concluded, “In Heller, McDonald, and Bruen, this Court did not ‘undertake an exhaustive historical analysis … of the full scope of the Second Amendment’ (citing Bruen). Nor do we do so today.” Roberts said the holding was limited to finding that it doesn’t violate the Second Amendment to disarm a person found by a court to pose a credible threat to another’s personal safety.

The concurring justices also noted, separately, that numerous questions remain after the Rahimi decision. For example, Justice Neil Gorsuch said the opinion doesn’t “resolve whether the government may disarm an individual permanently” and that the majority hasn’t determined whether Section 922(g)(8) may be enforced against a person who uses a firearm in self-defense.

Jackson asked, among other questions, “Who is protected by the Second Amendment from a historical perspective” and to “what historical era (or eras) should courts look to divine a historical tradition?”

Although the court upheld Section 922(g)(8), the balancing of interests under the pre-Bruen framework is no longer relevant to the court’s determination of the regulation’s constitutionality. Thus, barriers to other attempts to implement modern gun regulations likely remain.

The case is United States v. Rahimi, No. 22-915, decided 6/21/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Kami Chavis is vice dean, professor of law, and director of the Center for Criminal Justice Policy and Reform at William & Mary Law School.

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