On November 7, 2023, the Supreme Court held oral arguments in United States v. Rahimi. The question presented in Rahimi is whether 18 U.S.C. § 922(g)(8)—which prohibits person subject to a domestic violence restraining order from possessing firearms—violates the Second Amendment. This is the first gun case that the Supreme Court will consider since its decision last year in New York State Rifle & Pistol Ass’n. v. Bruen, 142 S. Ct. 2111 (2022).
Bruen upended a more than a decade’s worth of how courts around the country have considered whether a gun law or regulation violates the Second Amendment’s protect of the right to keep and bear arms. There the Court held that the only question is whether a law or regulation has some basis in the historical understanding of the Second Amendment. There is no consideration of whether the government has a reason or interest for enacting a law or regulation that limits the right to possess a firearm. What this functionally means is that laws and regulations limiting possession of a firearm are unconstitutional unless there is historical support for the law or regulation from the time period shortly after the Second Amendment was enacted.
When the Fifth Circuit applied Bruen to Rahimi’s constitutional challenge of § 922(g)(8), the Court held that the law violated the Second Amendment because it lacked the historical basis necessary to justify its restriction of the right to possess a gun. In response to the Fifth Circuit’s decision, the United States quickly filed a petition for a writ of certiorari with the Supreme Court asking it to consider the case, and the Supreme Court granted the writ.
This case has drawn a tremendous amount of interest from groups who have filed amicus briefs in favor of § 922(g)(8) and groups who are opposed to it. Key questions that the Court will likely have to answer include (1) who are “the people” protected by the Second Amendment and (2) is there a figurative line in the sand for when a regulation is old enough to be sufficient to not violate the Second Amendment. This case also presents the Court with issues related to the amount of due process—or lack thereof—in how domestic violence restraining orders are issued.
Beyond § 922(g)(8), Rahimi should provide lower courts with guidance on how the Bruen framework for Second Amendment challenges should be applied going forward. Applying the Bruen framework as strictly as it suggests may well endanger the vast majority of gun laws and regulations. Rahimi presents the Court with the opportunity to clarify exactly how strictly this framework should apply and what sort of historical basis is necessary to justify restrictions on the right to possess firearms.
