By: Hannah A. Quigley
Volume IX – Issue I – Fall 2023
I. Introduction and Background Information
Between December 2020 and January 2021, Zackey Rahimi perpetrated a series of non-fatal shootings in Arlington, Texas. [1] After Rahimi publicly fired shots inside a Whataburger when his payment method declined at the check-out counter, police obtained a search warrant for his home. [2] At Rahimi’s residence, officers found a rifle and a pistol, which Rahimi admitted to owning. [3] However, officers learned that in February 2020, Rahimi’s ex-girlfriend procured a civil protective order against him for domestic abuse. [4] Under 18 U.S.C. § 922(g)(8), those under active restraining orders cannot possess firearms. [5]
Rahimi and his legal team claimed that § 922(g)(8) violated the Second Amendment on its face. [6] Following the U.S. District Court of Northern Texas’s decision to uphold this statute in February 2023, the U.S. Fifth Circuit Court of Appeals struck it down in March for inadherence to historical Second Amendment regulations. [7] The Supreme Court granted certiorari in June 2023, scheduling oral arguments for November of that year. [8]
Considering that “abusive partners’ access to a firearm…[makes] it five times more likely that a woman will be killed,” the Supreme Court holds the future of domestic violence prevention in its hands. [9] This paper outlines the Second Amendment’s history, contextualizes its jurisprudence in landmark Supreme Court cases, and applies established legal tests to United States v. Rahimi before analyzing potential implications of the decision.
II. The Second Amendment’s Historical Context
The Bill of Rights, ten fundamental amendments ratified along with the Constitution itself in 1791, includes the Second Amendment. Its text reads: “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.” [10] Colonial common law did not enshrine a right to own weapons. [11] Yet, after the United States declared independence from the British crown, the Founding Fathers’ chief concerns regarded eradicating tyranny from their system. [12] Thus, the Second Amendment allows American militias to rise in opposition against standing government armies should the need arise. [13] Because of the amendment’s “well regulated Militia” clause and this historical context, jurists long interpreted the Second Amendment as a collective right rather than an individual one. [14]
In the twentieth century, however, public debate concerning what rights the Second Amendment actually granted intensified, especially after the rise in gun violence in the 1960s when activists called for restrictions. [15] The Supreme Court did not hear a critical Second Amendment case until the 2000s, when justices once and for all decided if the right to bear arms fell solely in a military context or if ordinary Americans could privately own firearms. [16]
III. Jurisprudence
i. District of Columbia v. Heller (2008)
In 2008, the Supreme Court decided District of Columbia v. Heller. This case challenged the constitutionality of a provision within the D.C. Code that banned owning handguns at home without proper registration. [17] Dick Heller, a special police officer, wanted to carry a firearm privately in addition to in his workplace due to the nature of his occupation. [18] He filed a license request which the D.C. City Council promptly denied. [19] Heller then appealed directly to the D.C. Circuit Court of Appeals, claiming that this statute violated his Second Amendment right to keep arms on his property. [20]
Justice Antonin Scalia wrote the majority opinion striking down this section of the D.C. Code. A textualist, J. Scalia first analyzed the Second Amendment’s structure and claimed that its introductory prefatory clause (a common grammatical quirk of the 1790s) serves more as a prologue or statement of purpose than an actual rule. [21] Accordingly, he notes, “The Amendment could be rephrased, ‘Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.’” [22] J. Scalia further found that the Amendment’s use of “the people” broadly applies to all Americans, that “keep and bear Arms” does not necessarily imply a military purpose, and finally that the Amendment as a whole guarantees an individual right to own and carry firearms. [23]
Heller ushered in a new era in American jurisprudence that defined Second Amendment rights as personal and for self-defensive purposes rather than civic ones. 24 This holding reflects a growing gun culture in the United States following the Civil War: in the Reconstruction era, lawsuits emerged challenging Southern states’ disarmament of freedmen, implying that nineteenth-century Americans viewed owning guns as a fundamental freedom. [25] Furthermore, Heller opened the door to future decisions striking down gun control measures: For example, the expired federal assault rifles ban likely could not pass into law today under this understanding of the Second Amendment. [26] Heller also implies a right to carry firearms not just in the home, but in public as well for defensive needs. [27] This sparked questions concerning public open- and concealed-carry permits, culminating in New York State Rifle and Pistol Association Inc. v. Bruen a decade later.
ii. New York State Rifle and Pistol Association Inc. v. Bruen (2022)
Petitioners Brandon Koch and Robert Nash of Rensselaer County, New York, applied for concealed-carry permits between 2008-2017. [28] Due to New York’s stringent laws outlawing concealed-carry outside the home unless applicants could prove “proper cause” for this extra self-defense measure, neither Koch nor Nash met licensing requirements. [29] As members of the New York State Rifle and Pistol Association, Koch and Nash filed a lawsuit claiming that the “proper cause” stipulation violated their Second Amendment rights. [30]
Writing the opinion for the conservative majority, Justice Clarence Thomas built upon Heller’s established individual right to keep and bear arms. In Second Amendment cases, originalist Thomas explains he evaluates the challenged legislation against historical gun regulations. [31] Bruen struck down New York’s concealed-carry law because of a lack of historical “tradition” distinguishing concealed- and open-carry. [32] Thomas elaborates that Koch and Nash inherently comprise the “people” to which the Second Amendment refers and that the text itself does not suggest fundamental differences between possessing weapons in public. [33] The “proper cause” standard violates the Constitution because both Koch and Nash had no criminal records or history of mental illness that could legally prevent them from firearms access. [34]
Bruen instituted a historical test whereby future justices must prove that gun control measures align with past laws. [35] In post-Bruen cases, like United States v. Perez-Gallan and United States v. Combs which contend with gun bans for domestic violence offenders, district and circuit courts have declared this basis a violation of the Second Amendment because gun regulations historically do not entangle with intimate partner violence. [36 ]The Fifth Circuit Court used this logic to strike down 18 U.S.C. § 922(g)(8) in their May 2023 hearing of United States v. Rahimi, claiming that domestic violence protective orders do not fit within traditional regulations. [37] Therefore, in the 2024 Supreme Court decision on Rahimi, justices may continue Thomas’s pattern to further dismantle gun control policies.
IV. Application of Stare Decisis to United States v. Rahimi
Despite the Court’s stringency in Bruen, following Rahimi’s oral arguments on November 7, 2023, a majority of justices poise themselves to uphold 18 U.S.C. § 922(g)(8). Thomas quotes Justice Scalia in Bruen, writing that “like most rights, the right secured by the Second Amendment is not unlimited…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” [38] This rhetoric suggests that the Constitution permits a ban on weapons access for any people deemed “dangerous.” If Solicitor General Elizabeth Prelogar successfully convinced the bench that Zackey Rahimi constitutes a threat to his community during oral arguments, the Court can now effectively expand this precedent to include domestic abusers without overturning Bruen’s freedoms. Justices have already indicated support for Prelogar’s slight modification to the Bruen test, with John Roberts asking Rahimi’s lawyers, “you don’t have any doubt that your client’s a dangerous person, do you?” [39] Legal analysts further argue that because Prelogar strategically did not challenge historical decisionmaking itself in her arguments, the justices could reach a unanimous decision given the narrow scope of the government’s demands. [40] This decision would not establish a new legal test rather than generalize an older one. [41]
While oral arguments provide some insight into how justices will decide a case later in the Court’s term, they do not guarantee a certain holding. For example, after debating the case behind closed doors, originalists like Thomas and Alito may still argue that no historical practice exists to regulate guns and domestic violence. The Bruen test clearly states that constitutional gun regulations must have concrete backing in former U.S. law, presenting an obstacle in Rahimi as lawyers attempt to link domestic abusers with traditional definitions of dangerous people (domestic violence became a social justice issue in relatively recent history). [42] UCLA Professor Adam Winkler notes, “Courts have really struggled to find gun laws back [in the 1700s and 1800s] that are sufficiently analogous to mainstream gun laws today…truth be told, many of these laws are 20th century inventions.” [43] Therefore, some justices may still reject Prelogar’s arguments because they do not apply specifically enough to historical laws, rendering 18 U.S.C. § 922(g)(8) unconstitutional.
Were the Court to strike down U.S.C. § 922(g)(8), legislators could implement a policy workaround preserving their statutory intent and complying with Supreme Court demands. For instance, Antonin Scalia explicitly approved gun prohibitions for felons in Heller. Therefore, perhaps Congress could classify domestic violence offenses as felonies rather than civil disturbances. Additionally, Congress could amend U.S.C. § 922(g)(8) to include a limited timeframe for any potential weapons restrictions, culling those indefinite bans which Supreme Court justices often find arbitrary. While Rahimi certainly will have widespread implications on American gun violence prevention, the journey does not end at the Supreme Court’s ivory tower. In order to truly enshrine such protections, Congress must continue to codify them as they fit within constitutional standards.
V. Implications of United States v. Rahimi
Rahimi’s outcome will determine how Congress can pass new domestic violence legislation and constitutionally close loopholes existing within the U.S. Code. For example, since 2015, congressional members have tried to end the “Boyfriend Loophole:” Under current federal law, “a gaping hole” exists that “permits abusive, non-live-in [partners] and [people] convicted of stalking to buy or own guns.” [44] This derives from the Code’s text in § 922(g)(9), which only explicitly denies firearms to abusers who have married, had children with, or cohabitated with their victims. [45] Thus, more casual but just as dangerous dating partners can still present armed threats in abusive relationships. Proposed bills would close this loophole by amending the Code’s language to include “dating partners” in its current definition of “intimate partners.” [46] If the Supreme Court decided to uphold § 922(g)(8) in its entirety, the argument that “dangerous persons” includes any and all domestic abusers for Second Amendment cases could facilitate passing Boyfriend Loophole legislation as modifying § 922(g)(9)’s definitions mirrors this judicial process. On the other hand, if the Supreme Court struck down § 922(g)(8) for its lack of historical tradition, future Boyfriend Loophole policies likely would also border on unconstitutionality as such laws have yet to pass even in 2023.
Rahimi will also increase or decrease the rates of fatal domestic violence incidents, depending on its outcome. In the United States, “domestic violence assaults involving a gun are 12 times more likely to result in death than those involving other weapons or bodily force.” [47] Furthermore, abusers murder their partners with guns in more than half of intimate partner homicides each year. [48] These statistics, collected over the past decade, show these crimes happen even under current U.S. protective statutes. If the Supreme Court allows § 922(g)(8) to stand, this will pave the way for more comprehensive safety measures at the federal level, like advancing prohibitions on those with stalking-related charges and allowing police to immediately remove guns from the scenes of domestic violence incidents. [49] However, if § 922(g)(8) fails to satisfy the Bruen test, these numbers can only increase. No federal barriers would exist for abusers seeking to buy a gun to shoot and kill their partners. This lawlessness would immediately impact the three states in the Fifth Circuit whose jurisdiction already overturned § 922(g)(8), and could spread to other regions with similarly conservative ideologies.
Finally, Rahimi provides a glimpse into not just future domestic violence cases but all gun control measures as a whole. The Supreme Court’s decision may indicate how similar regulations will fare in a post-Bruen world. For example, Bruen itself did not challenge state-level background check laws. [50] If Congress wanted to pass a federal universal background check policy (which a majority of Americans support in 2023), however, the Supreme Court could again use a lack of historical precedent in federal law to void the legislation. [51] Rahimi’s outcome could help inform how they would rule on regulations like these. A holding in support of § 922(g)(8) should make it somewhat easier for federal universal background checks to pass constitutional tests. However, background checks are not quite analogous to the facts of Rahimi, so members of Congress should not view the upcoming decision as a green light for all future common-sense gun laws. Instead, Rahimi can provide further insight into the Court’s current Second Amendment doctrine.
VI. Conclusion
United States v. Rahimi challenges § 922(g)(8), a provision of federal law that prohibits domestic abusers from owning or purchasing firearms, as violating defendant Zackey Rahimi’s individual Second Amendment privileges. After jurists viewed the Second Amendment as a collective power for centuries, over the past two decades the Supreme Court transformed the right to bear arms into a more individual one as well. District of Columbia v. Heller specifically enshrined this in 2008. New York State Rifle and Pistol Association Inc. v. Bruen expanded upon Heller in 2022, extending Second Amendment protections to concealed-carry permits. Oral arguments preemptively indicate that the Supreme Court will likely uphold § 922(g)(8) because it aligns with the historical precedent of barring “dangerous people” from guns. However, the Supreme Court could change its mind by June; originalists may successfully/unsuccessfully argue that American law lacks a tradition of removing guns from domestic violence situations. Whichever way the Court decides, Rahimi will undoubtedly impact domestic violence prevention initiatives like closing the Boyfriend Loophole, incidences of fatal domestic violence, and common-sense gun control. Above all, Rahimi serves as the next major test to Second Amendment jurisprudence.
Endnotes
[1] United States v. Rahimi, 61 F. (5th Cir. Mar. 2, 2023). https://plus.lexis.com/api/permalink/f37c73c6-cf42-48f3-88b0-4876f207abd7/?context=1530671.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] 18 U.S.C. § 922(g)(8). Accessed November 3, 2023. https://www.law.cornell.edu/uscode/text/18/922.
[6] United States v. Rahimi
[7] Ibid.
[8] Ibid.
[9] "Domestic Violence & Firearms," Giffords Law Center, accessed November 3, 2023, https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/domestic-violence-firearms/.
[10] U.S. Const. amend. II. Accessed November 3, 2023. https://constitution.congress.gov/browse/amendment-2/.
[11] Daniel E. Feld, "Federal constitutional right to bear arms," American Law Reports 37, no. 696, https://plus.lexis.com/api/permalink/4e112d04-bb31-4104-96dd-88556799236a/?context=1530671.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Thiago Luiz Blundi Sturzenegger, "The Second Amendment's Fixed Meaning and Multiple Purposes," Southern Illinois University Law Journal, Winter 2013, https://plus.lexis.com/api/permalink/b1d5c985-0526-44ed-8a86-1587149c0970/?context=1530671.
[16] Sturzenegger, “The Second.”
[17] "D.C. Code § 7-2502.02," CaseText, accessed November 4, 2023, https://casetext.com/statute/district-of-columbia-official-code/division-i-government-of-district/title-7-human-health-care-and-safety/subtitle-j-public-safety/chapter-25-firearms-control/unit-a-firearms-control-regulations/subchapter-ii-firearms-and-destructive-devices/section-7-250202-registration-of-certain-firearms-prohibited.
[18] District of Columbia v. Heller, 554 U.S. (2008). https://plus.lexis.com/api/permalink/60971be5-d1f5-4b9c-9eb7-cd87103bef3d/?context=1530671.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Michael P. O'Shea, "The Right to Defensive Arms after District of Columbia v. Heller," West Virginia Law Review, Winter 2009, https://plus.lexis.com/api/permalink/f38a2beb-2fc4-4887-8628-930c744b44bd/?context=1530671.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. (2022). https://plus.lexis.com/api/permalink/2730ce91-81bd-4b3d-90f5-78fce409ed1c/?context=1530671.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] Ibid.
[35] Kelly Roskam et al., "Public Health, History, and the Future of Gun Regulation after Bruen," Fordham Urban Law Journal, October 2023, https://plus.lexis.com/api/permalink/3eb1b6ce-8b2c-4d16-b51a-07ccfe19b3ad/?context=1530671
[36] Ibid.
[37] Ibid.
[38] N.Y. State Rifle & Pistol Ass'n v. Bruen
[39] Greg Stohr, "Gun Ban in Domestic-Violence Case Gets Supreme Court Support," Bloomberg Law, last modified November 7, 2023, accessed November 21, 2023, https://news.bloomberglaw.com/us-law-week/gun-ban-in-domestic-violence-case-gets-support-at-supreme-court?context=search&index=1.
[40] Bloomberg Law Podcast, "Justices Ready to Uphold Gun Ban on Domestic Abusers," hosted by June Grasso, aired November 7, 2023.
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Nick Butto, "The Front and Back Ends of Domestic Violence Murder: An Exploration of the Avenues for Change and an Introduction of the Domestic Violence-Murder Doctrine," Georgetown Law Journal, January 2019, https://plus.lexis.com/api/permalink/9b313d3f-a6eb-48ee-a881-30e444af1178/?context=1530671.
[45] Ibid.
[46] Ibid.
[47] “Domestic Violence,” Giffords Law Center.
[48] Ibid.
[49] Ibid.
[50] Margaret J. Finerty, "The Supreme Court's Bruen Decision and Its Impact: What Comes Next?," New York State Bar Association, last modified August 9, 2022, accessed November 21, 2023, https://nysba.org/the-supreme-courts-bruen-decision-and-its-impact-what-comes-next/.
[51] Craig Helmstetter, Eric Plutzer, and Rithwik Kalale, "Poll: A majority of Americans support universal background checks, gun licensing and an assault weapons ban," MPR News, last modified July 25, 2023, accessed November 21, 2023, https://www.mprnews.org/story/2023/07/25/poll-majority--support-universal-background-checks-gun-licensing-assault-weapons-ban.