December 4, 2023


The U.S. Supreme Court heard an argument in United States v. Rahimi on Tuesday. Rahimi is the Second Amendment case that Merrick Garland, President Biden’s Attorney General, pushed to get to the Supreme Court, hoping to take advantage of defendant Zackey Rahimi’s allegedly odious background. Garland and the anti-gunners considered the Rahimi case their best chance to gut or water down the text-and-history methodology set forth by the Supreme Court in District of Columbia v. Heller and NYSRPA v. Bruen. Based on the Justices’ questions during oral argument, I doubt that Garland’s strategy will succeed.

The Rahimi case involves a Second Amendment challenge to the federal gun control statute 18 U.S.C. 922(g)(8), which provides that individuals subject to state-based domestic violence restraining orders are prohibited from possessing a firearm anywhere in the United States for the duration of that order. The federal law is a nationwide ban. To illustrate, it would ban the possession of firearms by a person living in Arizona even when a restraining order is entered in Maine.

According to court records, Mr. Rahimi lived in Texas and admitted to engaging in violent acts against an ex-girlfriend, and then consented to the entry of a domestic violence restraining order. This restraining order triggered federal law 922(g)(8), and thus, Mr. Rahimi was not allowed to possess firearms while the order was in effect. Subsequently, Mr. Rahimi was allegedly involved in a series of shootings. The police obtained a warrant to search his home and discovered Mr. Rahimi’s firearms. The federal government charged Mr. Rahimi with violating 18 U.S.C. 922(g)(8); he was ultimately convicted.

Mr. Rahimi asserted a Second Amendment defense in the federal district court, which initially failed. After the Supreme Court decided Bruen in June 2022, this defense gained traction. Then, earlier this year, the U.S. Court of Appeals for the Fifth Circuit found that 922(g)(8) facially violated the Second Amendment. The Fifth Circuit concluded that under Bruen, there was no well-established tradition of gun control laws analogous to 922(g)(8), and, thus, Congress violated the Constitution with its enactment. Garland then sought certiorari from the Supreme Court, which was granted in June.

On Tuesday, the U.S. Department of Justice sent their top appellate lawyer, Solicitor General Elizabeth Prelogar, to argue against Matthew Wright, the public defender representing Mr. Rahimi.

Having reviewed the briefs and listened to oral argument, it’s my best guess that Mr. Rahimi will lose his appeal.

I expect that the Supreme Court will rule for the government on narrow grounds, finding that 18 U.S.C. 922(g)(8) is facially constitutional. But it will only find this to the extent it applies to physically violent, dangerous individuals. And while the media may try to portray this as a setback for “gun rights,” it likely won’t be true. In fact, it may be the opposite.

I suspect the Court will find that there remain countless “as applied” challenges to future 922(g)(8) cases, including arguments arising from the Second Amendment, the Commerce Clause, due process considerations, and more. The Court will probably uphold the statute facially because it will find that “if a person is found to be a physically violent danger”—after adequate due process and other appropriate limitations on governmental power—then it is POSSIBLE that 18 U.S.C. 922(g)(8) could legally be enforced against some people in certain circumstances. Because it is possible that 922(g)(8) may have constitutional applications to some violently dangerous individuals, 922(g)(8) will likely be found to be facially constitutional.

It is unlikely that the Supreme Court’s decision will deal a terrible blow to Bruen’s text-and-history methodology. Although it is impossible to know what the Supreme Court will ultimately do and the contents of their opinion until released, I suspect that the decision will be narrowly drafted to conclude that physically violent, dangerous individuals may be disarmed; however, they may only be disarmed after there is some sort of individualized process and a specific factual finding of dangerousness after a hearing with robust procedural protections. If the Court rules this way, it will likely be a devasting blow to several arguments that the DOJ and their anti-gun friends have been arguing in court for years.

For example, the anti-gun movement has argued that the government may disarm Americans who are found to be not “virtuous,” insisting that the right to keep and bear arms belongs only to the virtuous citizen. The good news is that when asked by Justice Barrett whether DOJ was advancing this so-called “virtuousness” theory, the Solicitor General said unequivocally “No.” (see Oral Argument Tr. 12) The DOJ’s abandonment of its “virtuous citizen” argument is very good for the Second Amendment community because lower courts had previously used that theory to disarm non-violent Americans, including in the Seventh Circuit’s decision in Kanter v. Barr.

DOJ wants to broaden the scope of who can be disarmed to include anyone a legislative body (Congress or state lawmakers) considers to be not “responsible” or “law-abiding.” This view seems unlikely to be accepted by the Court. The best evidence that DOJ’s argument fell flat is reflected by Chief Justice Roberts’s questioning. Oral argument had just begun when Chief Justice Roberts asked skeptically whether, under the government’s theory, the government could disarm a person driving 30 mph in a 25-mph speed zone or someone who failed to recycle.

DOJ’s attorney quickly retreated to the “dangerousness” position, i.e., if someone is violently dangerous, they can be disarmed, consistent with the Second Amendment. This retreat is likely a serious blow to the anti-gun lobby’s legal strategy because it functions as an admission that the pro-gun community was correct in its application of the Second Amendment in non-violent felon cases.

Beyond effectively conceding that “dangerousness” is the touchstone of when an American can lawfully be disarmed, the DOJ made another apparent strategic blunder.

In responding to questions, DOJ’s counsel opened the door to the Supreme Court granting certiorari in a much more favorable case for the Second Amendment movement, that is, the Bryan Range v. Garland case out of the Third Circuit.

Earlier this year, the Third Circuit Court of Appeals in Philadelphia ruled in favor of Mr. Range’s Second Amendment challenge to a different section of 18 U.S.C. 922(g)—specifically 922(g)(1), which bars felons (as that term is defined by federal law) from possessing firearms. Unlike the Rahimi case, in which AG Garland rushed to the Supreme Court, Garland slow walked Range. For the anti-gunners, this strategy made sense because Mr. Range is undeniably a sympathetic, non-violent individual who decades ago misrepresented his income on an application to receive state welfare. Mr. Range never served a day in prison for his non-violent misdemeanor guilty plea.  Yet, under the terms of 922(g)(1), he was disarmed for life.

In September, Garland asked the Supreme Court to grant certiorari and overturn the Range decision but asked the Court to delay its grant until after it decided Rahimi. The DOJ argued that the Rahimi decision by the Court would likely resolve the questions presented in Range.

However, the arguments advanced by the DOJ in Rahimi may have just sunk the DOJ’s argument to delay hearing the Range case. At oral argument, the Solicitor General admitted that the Rahimi case and Range case present distinctly different issues in that Rahimi involves “irresponsible” people while Range involves people who are not “law-abiding.” Justice Amy Coney Barrett quickly flagged this when she mentioned the Range case by name (see Oral Argument Tr. 50).

The Second Amendment community should hope that the Supreme Court agrees to hear the Range case because it will likely result in another victory for the Second Amendment and a further reduction of the number of Americans who may be disarmed legally. Range is likely to serve as a vehicle for countless currently-disarmed Americans to regain their right to bear arms; a right they lost because they committed a non-violent crime defined by federal law as a “felony,” thus warranting disarmament under 922(g)(1).

Turning back to the Rahimi case, another DOJ goal was to weaken the text-and-history methodology of interpreting the Second Amendment set forth in Heller and Bruen. The anti-gunners hate the “text first, history second” methodology because it is difficult for the government to justify modern gun control laws under this approach. That Second Amendment challenges have frequently prevailed post-Bruen stands in stark contrast to the repeated losses the right to bear arms suffered in the years between Heller and Bruen. That the liberal justices (Kagan, Sotomayor and Brown Jackson) share a disdain for this interpretative methodology and the Second Amendment is no secret, and that was evident at oral argument.

Although I will likely do more articles on this issue in the future, for now, suffice it to say that the “text first, history second” interpretative approach does not appear to be going anywhere.

Happily, nothing occurred during the argument that would suggest otherwise. This is great news for Second Amendment rights because there were very few restrictions on the right to bear arms during the Founding Era (1791) when the Second Amendment was adopted. The absence of such restrictions is powerful corroborating evidence that the text of the Second Amendment means exactly what it says, i.e., that the right to possess and carry firearms is a fundamental constitutional right, and it may be restricted only in rare and narrow circumstances.

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About Mark W Smith

Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.

His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.

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