by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the federal statute which prohibits the possession of firearms by a person subject to a domestic violence restraining order, 18 U.S.C. § 922(g)(8), is unconstitutional in light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

Zackey Rahimi was indicted for possessing a firearm while under a domestic violence order in violation of 18 U.S.C. § 922(g)(8) after officers from the Arlington, Texas, Police Department executed a search warrant at his home and found a rifle and a pistol. Rahimi moved to dismiss the indictment on the ground that the statute is unconstitutional, but he acknowledged that United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), foreclosed his argument.

The U.S. District Court for the Northern District of Texas denied his motion, and he pleaded guilty. On appeal, a panel of the Fifth Circuit agreed that McGinnis foreclosed Rahimi’s argument. While Rahimi’s petition for a rehearing en banc was pending, the U.S. Supreme Court decided Bruen. The panel withdrew its opinion and ordered supplemental briefing on the impact of Bruen on Rahimi’s case. Rahimi then contended that Bruen overruled circuit precedent and that under Bruen, § 922(g)(8) is facially unconstitutional.

To begin its analysis, this panel of the Fifth Circuit observed “[u]nder the rule of orderliness, one panel of the Fifth Circuit ‘may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” In re Bonvillian Marine Serv., Inc., 19 F.4th 787 (5th Cir. 2021). “The Supreme Court need not expressly overrule our precedent. ‘Rather, a latter panel must simply determine that a former panel’s decision has fallen unequivocally out of step with some intervening change in the law.’” Id. 

In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the Court concluded § 922(g)(8) was constitutional as applied to the defendant: “Emerson first considered the scope of the Second Amendment right as ‘historically understood,’ and then determined – presumably by applying some form of means-end scrutiny sub silentio – that § 922(g)(8) [was] ‘narrowly tailored’ to the goal of minimizing ‘the threat of lawful violence.’” McGinnis. That is, when analyzing laws that might implicate the Second Amendment, the Fifth Circuit first asked if the conduct at issue fell within the protection of the Second Amendment. If it fell outside the scope of the Second Amendment, the law was constitutional. If it fell within the scope of the Second Amendment, the Fifth Circuit then applied either intermediate scrutiny or strict scrutiny (the McGinnis Court expressly applied means-end scrutiny). But Bruen expressly repudiated the “means-end scrutiny.” Because Bruen “fundamentally changed” the analysis of laws implicating the Second Amendment, the panel concluded the Fifth Circuit’s prior precedent is obsolete.

The Court explained that under Bruen’s framework, courts must determine whether “the Second Amendment’s plain text covers an individual’s conduct.” If so, then the “Constitution presumptively protects that conduct,” and the government “must justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. “Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” Id. (Note: both Bruen and D.C. v. Heller, 554 U.S. 570 (2008), left intact the constitutionality of statutes like 18 U.S.C. § 922(g)(1) that prohibit convicted felons as a group from possessing firearms because it is purportedly “well-rooted in the nation’s history and tradition of firearm regulation.”) The burden is on the government to point to “historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.” Bruen.

Because Rahimi’s possession of the rifle and pistol easily fall within the scope of the Second Amendment, the question turned on whether § 922(g)(8) is “consistent with ‘the historical tradition that delimits the outer bounds of the right to keep and bear arms.’” Bruen.

In pertinent part, § 922(g)(8) makes it unlawful “for any person who is subject to a court order that[:] (A) was issued after a hearing of which such a person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened physical force against such intimate partner or child that would reasonable be expected to cause bodily injury ... to ... possess in or affecting commerce, any firearm or ammunition....”

The Court distilled the key features of the statute to be: “(1) forfeiture of the right to possess weapons (2) after a civil proceeding (3) in which a court enters a protective order based on a finding of a ‘credible threat’ to another specific person, or that includes a blanket prohibition on the use, of threatened use [sic], of physical force, (4) in order to protect that person from ‘domestic gun abuse.’”

In arguing in favor of the statute being constitutional, the Government first proffered the English Militia Act of 1662 (“Militia Act”) as an historical analog to § 922(g)(8). The Militia Act permitted officers of the Crown to “seize all arms in the custody or possession of any person” whom they “judge[d] dangerous to the Peace of the Kingdom.”

But the Court observed that the Militia Act was used by King Charles II and King James II to disarm political opponents. Nelson Lund, “The Past and Future of the Individual’s Right to Arms,” 31 Ga. L. Rev. 1 (1996). The later Declaration of Rights restricted the reach of the Militia Act “in order to prevent the kind of politically motivated disarmaments pursued by Charles II and James II.” And this provision in the Declaration of Rights “has long been understood to be the predecessor to our Second Amendment.” Consequently, the Militia Act is not our Nation’s historical tradition.

The Government next pointed to laws in several colonies and states that disarmed classes of people considered dangerous, e.g., slaves, Native Americans, and those refusing to take an oath of allegiance. 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 (2007). The Court also rejected these as analogous to § 922(g)(8) primarily because the former laws disarmed classes of people to preserve political and social order and the latter disarmed a person in order to protect another identified person from the threat of “domestic gun abuse.”

The Government also offered laws from the Massachusetts Bay Colony, the State of Virginia, and the colonies of New Hampshire and North Carolina that prohibited the offense of “going armed to terrify the King’s subjects.” Bruen. But none of these “regulations could suffice to show a tradition of public carry regulation.” Id. Further, those laws disarmed an offender only upon criminal conviction after criminal proceedings; whereas, the orders contemplated under § 922(g)(8) are issued after civil proceedings without the attendant rights of counsel and other safeguards of criminal proceedings, the Court reasoned. 

Lastly, the Government pointed to historical surety laws. Under common law, “an individual who could show that he had ‘just cause to fear’ that another would injure him or destroy his property could ‘demand surety of the peace against such person.’” 4 William Blackstone, Commentaries on the Laws of England 252 (1769). If the party of whom surety was demanded refused to post surety, he was forbidden from carrying a weapon in public absent a special need. Bruen. While the surety laws were closer to being analogous to § 922(g)(8) than the Government’s other proffers, they fail because § 922(g)(8) prohibits possession of any firearm whereas surety laws allowed possession and only prohibited public carrying of firearms if the person refused to post surety. Consequently, historical surety laws did not impose a comparable burden on the Second Amendment right of armed self-defense as § 922(g)(8) does.

The Court concluded that the “Government fail[ed] to demonstrate that § 922(g)(8)’s restriction on Second Amendment rights fits within our Nation’s historical tradition of firearm regulation.” Thus, the Court held that the statute is facially unconstitutional.

Accordingly, The Court vacated Rahimi’s conviction. See: United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023).