The Lawletter Vol. 49 No. 3
Anne Hemenway, Senior Attorney
CONSTITUTIONAL LAW/SECOND AMENDMENT: United States Supreme Court Allows Statutory Ban on Possession of Firearms by Persons Subject to Domestic Violence Restraining Order
In United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), the United States Supreme Court, in an unusual nearly unanimous 8-1 decision, upheld a 1994 federal criminal law, 18 U.S.C. § 922(g)(8), against a challenge that the law violated the Second Amendment. The statute bans the possession of a gun by someone who has been the subject of a domestic violence restraining order or any order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such partner or engaging in other conduct that would place an intimate partner in reasonable fear of injury.
The statute was originally challenged by Rahimi as violating the Second Amendment, although he conceded that the restraining order against him satisfied the statutory criteria for banning him from possessing a firearm. The federal district court denied Rahimi's motion to dismiss the indictment for possessing a firearm in violation of Section 922(g)(8) on Second Amendment grounds. On appeal, the Supreme Court decided New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). In light of that ruling, the Fifth Circuit Court of Appeals reversed, holding that the indictment should be dismissed because Section 922(g)(8) does not fit within the “Nation's historical tradition of firearm regulation.” United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023).
The Supreme Court disagreed. In the Rahimi decision, written by Chief Justice Roberts, the Court distinguished the facts of the Bruen decision and specifically held that Section 922(g)(8) is constitutional as applied to the facts in the Rahimi case—that is, that Mr. Rahimi has been found by a court to pose a credible threat to the physical safety of others and the Second Amendment permits the Government to require that such individuals be disarmed. The Court opined that throughout the Nation's history, firearm laws have included regulations to stop persons who threaten physical harm to others from misusing firearms and Section 922(g)(8) is consistent with that tradition. Justice Thomas disagreed and wrote a dissenting opinion.