I. Background
United States v. Rahimi has the potential to greatly affect Second Amendment jurisprudence regarding how courts consider domestic violence restraining orders. See United States v. Rahimi, 217 L.Ed.2d 250 (U.S. 2023). On appeal from the Fifth Circuit, Rahimi is currently awaiting decision from the United States Supreme Court after oral arguments that took place in November of 2023. See Id.
The issue presented in Rahimi is whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to a domestic violence protective order, violates the Second Amendment on its face. See id. For the foregoing reasons, the Court should find that 18 U.S.C. § 922(g)(8) is constitutional.
The facts at issue are as follows: a domestic violence protective order was issued after Respondent, Zackey Rahimi, violently assaulted his domestic partner in a parking lot. As per a condition of the protective order issued under 18 U.S.C. § 922(g)(8), Mr. Rahimi was prohibited from possessing firearms. Subsequently, Mr. Rahimi was criminally convicted of possessing a gun while subject to his protective order. On appeal, Mr. Rahimi challenges the constitutionality of the protective order imposed upon him as a violation of his Second Amendment right to bear arms.
In 2022, the Supreme Court held that a state may not place restrictions on law-abiding citizens from publicly carrying handguns simply because they have not demonstrated a “special need” for self-defense. See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). In Bruen, the Court held that a government restriction on the right to keep and bear arms is unconstitutional if the restriction is inconsistent with American history and tradition regarding firearms regulation. See id. As a result, lower courts currently analyze governmental restrictions on firearms by considering whether the restriction is consistent with the American historical tradition of firearms regulation, focusing especially on firearms regulations during the time the Second Amendment was ratified. See Duke Center for Firearms law, Bruen, Analogies, and the Quest for Goldilocks History (Jun. 28, 2022). Under Bruen’s “tradition and history” test, a restriction on firearms that is consistent with American history and tradition is constitutional, and a firearm regulation that is inconsistent with American history and tradition is unconstitutional. See id.
Therefore, if a government regulation restricts conduct protected by the plain text of the Second Amendment, the government must justify the regulation by finding a historical analog demonstrating that the restriction is present in American history and tradition. See New Republic, The Supreme Court Might Finally be Drawing a Line on Gun Rights (Nov. 7, 2023). In the past year, lower courts have encountered difficulty applying this test. Some courts have interpreted the “historical analog” test from Bruen to require an exact analog from 1791 to modern law demonstrating an “on point” restriction, while other courts have construed the test to require that the interest behind the modern restriction was also an interest behind acceptable restrictions at the time of the Second Amendment’s ratification. See Kevin G. Schascheck II, Recalibrating Bruen: The Merits of Historical Burden-Shifting in Second Amendment Cases, 11 Belmont Law Rev. 38 (2023). Rahimi is an opportunity for the Court to clarify the application of Bruen. I argue that the latter construction of Bruen is the most appropriate interpretation of the test because it accounts for history and tradition while also not foregoing modern history and consideration of current societal issues that the Framers either could not foresee or did consider problematic, such as domestic violence.
II. Oral Arguments and the Legal Standard for “Dangerousness”
During oral arguments for Rahimi, Elizabeth Prelogar, the Solicitor General of the United States representing the Petitioner, argued that the following two principles present in America’s history and tradition support disarmament and indicates that 18 U.S.C. § 922(g)(8) passes constitutional muster: (1) a “law-abiding” principle, which restricts firearms for those that have criminal convictions; and, (2) a responsibility, or “dangerousness”, principle. See Tr. of Oral Arg., United States v. Rahimi, (2023) (No. 22-915). While the first principle is not applicable to Mr. Rahimi’s case (since a protective order is a civil proceeding that does not require a criminal conviction), she stated that the restriction imposed on Mr. Rahimi prohibiting him to carry a firearm is valid based on the “dangerousness” principle.
Petitioner argued that it is not necessary to find an “exact” analog to the understanding of what “dangerousness” meant at the time of the Second Amendment’s ratification in 1791. See Tr. of Oral Arg., United States v. Rahimi, (2023) (No. 22-915). Instead, Petitioner argued that the appropriate application of the Bruen test is to (1) extrapolate that a finding of “dangerousness” was enough to restrict a persons’ access to firearms in some capacity from the historical record and (2) use modern understanding and evidence of what “dangerousness” is to draw a conclusion as to whether a person’s Second Amendment rights may be restricted. See id. This approach uses America’s history and traditions as its guiding principle while taking modern and practical concerns into account. See id.
It is clear, as Petitioner has pointed out, that American history and tradition illustrates multiple examples of the government disarming individuals simply because they were viewed as more irresponsible, or “dangerous” than the ordinary citizen, even absent a criminal conviction. These examples include laws restricting firearms access to those loyal to the British crown, rebels, minors, and felons. America’s early laws restricting “dangerous” persons from carrying firearms is drawn from the British common law which “… disarmed individuals who ‘disturbed the public Peace.’” Privy Council Lord Newport (Jan. 8, 1661), in Transactions of the Shropshire Archaeological and Natural History Society, pt. 2, 3d ser., vol. 4, at 156 (1904); see Brief of the ACLU as Amicus Curiae, p. 12., U.S. v. Rahimi, 143 S. Ct. 2688 (2023).
Laws in several colonies and later, states, disarmed classes of people considered to be dangerous and specifically included those unwilling to take an oath of allegiance. See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 157-60 (2007). For example, an early Massachusetts law temporarily disarmed individuals who had participated in Shays’ Rebellion as a condition of obtaining a pardon, with reinstatement of the right to bear arms subject to a showing of good behavior over a period of many years. See Act of Feb. 16, 1787, §§ 1-3, 1 Private and Special Statutes of the Commonwealth of Massachusetts 145-147 (1805). These laws disarming persons thought to pose a threat to the security of the state illustrate that a mere determination of “dangerousness” has historically been sufficient to restrict access to firearms since the founding of America.
III. Domestic Violence and Meeting the Standard of “Dangerousness”
The evolution of women’s rights in America’s jurisprudence, specifically concerning domestic violence and sexual assault in the context of marriage, demonstrates why we should hesitate in applying a strict “history and tradition” analog to the issue presented in Rahimi. It is no secret that America’s legal outlook and understanding of sexual assault and rape has changed dramatically since 1791. During the time of America’s founding, the unfortunate reality is that husbands were immune from prosecution for raping their wives. See The Marital Rape Exemption and the 14th Amendment, 99 Harv. L. Rev. 1255 (1986). Only within the last century have all 50 states created some form of punishment for rape within marriage. See id. It is clear today in 2023 that exempting marital rape from a definition of “dangerousness” would be “completely contrary to the statutory objectives and [modern] conceptions of protecting people from the physical and emotional harm resulting from forcible sexual assaults…”. See People v. M.D., 231 Ill. App. 3d 176, 180, 172 Ill. Dec. 341, 343, 595 N.E.2d 702 (1992). It is due to our evolved understanding of the rights and dignity of women that all 50 states currently have some law prohibiting marital rape. See id. Like marital rape, our modern understanding is that access to firearms by those subject to a protective order poses a grave danger to ones’ partner, and particularly to women’s safety.
It is clear that Mr. Rahimi fits our society’s modern conception of what “dangerousness” is. Recent evidence shows that those subject to domestic violence restraining orders are certainly more dangerous than the ordinary citizen. “Around 4.5 million women in the United States have been threatened with a gun, and nearly 1 million women have been shot or shot at by an intimate partner.” See The Educational Fund to Stop Domestic Violence, Domestic Violence and Firearms, (Dec. 12, 2023). “Over half of all intimate partner homicides are committed with guns.” Id. Indeed, a woman is five times more likely to be murdered when her abuser has access to a gun. See id. The Supreme Court has similarly recognized this grave threat to women by noting that “firearms and domestic strife are a potentially deadly combination.” United States v. Hayes, 555 U.S. 415, 427 (2009). More than a million acts of domestic violence occur in the United States every year, and the presence of a firearm increases the likelihood that violence will escalate to homicide. United States v. Castleman, 572 U.S. 157, 160 (2013). In Castleman, the Supreme Court explicitly recognized that “all too often, the only difference between a battered woman and a dead woman is the presence of a gun.” Id. at 160. These statistics and commentary show us how prevalent violence against women is, and the staggering increase in violence that occurs when an abuser has access to a gun, all pointing to a finding of “dangerousness”. Thus, it is clear that a finding of “dangerousness” is well-supported and recognized in the context of domestic violence.
Mr. Rahimi takes a more literal approach to Bruen and argues that since there are no directly analogous laws restricting firearms subsequent to a protective order in this Nation’s history, 18 U.S.C. § 922(g)(8) is unconstitutional. While Mr. Rahimi may be correct, this argument overlooks a critical fact – the reason there are no analogous laws restricting firearms subsequent to a protective order in this Nation’s history is because domestic abuse was not recognized in this Nation’s legislation until very recently. The fact that it was only within the last 50 years that marital rape was recognized as a crime in every state is illustrative of this point. Thus, it is imperative for courts to not take Buren too literally. Doing so would compromise our society’s current values and conception of dangerousness and restrict legislatures from passing legislation to address modern issues present in American society. With this context, Bruen should be applied to Rahimi as follows; (1) the Court should find that there is a clear finding of “dangerousness” being enough to restrict access to guns in our Nation’s history and tradition, and (2) in light of modern legislation and understanding addressing domestic violence, Mr. Rahimi clearly fits what we consider “dangerous”. Therefore, his access to firearms can be restricted under 18 U.S.C. § 922(g)(8).
IV. Conclusion
It is clear that the “dangerousness” approach to Bruen suggested by Solicitor General Prelogar is the most appropriate and pragmatic conception of the Bruen test. There is no question that “dangerousness” was a consideration at the time of the ratification of the Second Amendment, and there is no question that domestic violence is dangerous. Our laws should work for us to address society’s current issues with pragmatic and current solutions. Principles present in America’s history and tradition should (and do) guide us in effecting our laws, but it is important for us to also consider America’s current history and tradition. Thus, as Solicitor General Prelogar suggests, we should take the Framers’ guiding principles and apply our modern understanding of science, safety, and societal standards to reach a result that best serves the people and takes into account our modern conception of gun violence and domestic abuse.
Sahara Damon is a 2L student at the George Washington University Law School.
