In United States v. Rahimi, the U.S. Supreme Court affirmed the constitutionality of the federal statute that bans individuals subject to domestic violence protective orders from possessing firearms (Section 18 U.S.C. §922(g)(8)). The majority opinion in Rahimi found that Section 922(g)(8) was consistent with the nation’s historic tradition of firearm regulation, as required by the relevant test in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). Because the majority found that Section 922(g)(8) was analogous to the “surety” laws and “going armed” laws that existed at the time of the founding, it concluded that the statute was constitutional under the Second Amendment. Thus, Rahimi’s facial challenge to the statute failed. The opinion corrected the Fifth Circuit’s misapplication of Bruen, and reversed its conclusion that Section 922(g)(8) violated the Second Amendment. Chief Justice Roberts wrote for the 8-1 majority. Justice Thomas dissented.
In Rahimi, the Court emphasized that gun regulation fits within its interpretation of the Second Amendment, District of Columbia v. Heller, 554 U.S. 570, 626 (2008), and does not intrinsically conflict with the right to keep and bear arms. See McDonald v. Chicago, 561 U.S. 742, 778 (2010). The Court applied Bruen, its most recent Second Amendment precedent, to demonstrate exactly that. Bruen contains the Court’s test for the constitutionality of firearm regulations. Bruen held that for any firearm regulation to be constitutional under the Second Amendment, it must comport with the nation’s historic tradition of such regulations. Bruen, at 17, 24.
In Rahimi, the majority defined the proper application of Bruen: “[a] court must ascertain whether the…law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” Bruen, at 20, and n. 7. The Court offered examples: a modern law would be “relevantly similar” if it addressed particular problems also targeted by laws regulating firearms at the time of the founding. Rahimi, at 7. Even if addressed to a problem shared between the founding and the present, the modern regulation may not, however, regulate beyond the scope of what was done at the founding. Ibid. But the regulation need not “precisely match its historical precursors,” because “it may still be analogous enough to pass constitutional muster.” Ibid. The Court underscored that Bruen did not require finding a “historical twin” in founding-era laws. Ibid.
The Court reasoned that the Section 922(g)(8)(i) ban on firearm possession for an individual whose restraining order finds that he threatens the physical safety of his intimate partner was historically analogous to two distinct legal regimes from the late 1700s and early 1800s: the surety laws and the going armed laws. Surety laws originated in English law, and required individuals suspected of future misbehavior to post a bond or face imprisonment. Among their uses was the prevention of spousal abuse, as well as the misuse of firearms. Going armed laws, also English in origin, punished those who had “menaced others with firearms,” Rahimi, at 12, with weapons forfeiture and imprisonment. The Court observed that both legal regimes had entered American jurisprudence by the founding period.
The majority underscored that Section 922(g)(8) was not – and did not need to be – identical to the surety laws and going armed laws. Rather, because Section 922(g)(8)(i) applies “to individuals found to threaten the physical safety of another,” it is “relevantly similar” to these founding-era regimes “in both why and how it burdens the Second Amendment right.” Rahimi, at 14. The majority also concluded that the penalty (restraint from gun possession or else imprisonment) imposed by Section 922(g)(8) fit within the nation’s regulatory tradition, because the statute did not establish a categorical prohibition, but a narrow one with a historical analogue in founding-era law. Therefore, the majority found that the Fifth Circuit erred in reading Bruen to require a “historical twin” rather than a “historical analogue.” Id, at 16.
The Court’s decision in Rahimi is limited, but it can help keep firearms out of the hands of domestic abusers and that will contribute to public safety in Indian Country. Supreme Court precedent has acknowledged that Native women endure domestic violence at higher rates than any other population. See United States v. Bryant, 579 U.S. 140, 144 (2016). Section 922(g)(8) applies to Indian Country through the Violence Against Women and Department of Justice Reauthorization Act of 2005, which encompasses offenders convicted under tribal law. The Court’s affirmation of the constitutionality of Section 922(g)(8) helps to ensure that Native women remain protected from armed domestic abusers under this federal statutory framework.
Additional Resources:
- The Supreme Court opinion is available here: https://www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf.
- In August 2023, the National Indigenous Women’s Resource Center (NIWRC) filed an amicus brief in Rahimi, joined by tribal nations, two tribal national organizations, and numerous Native and victim advocacy organizations, including the Center. The amicus brief urged the Court to overturn the now successfully vacated Fifth Circuit decision declaring §922(g)(8) unconstitutional. The brief is available to read at: https://www.supremecourt.gov/DocketPDF/22/22-915/275832/20230821153716239_22-915tsacNationalIndigenousWomensResourceCenterEt.Al.pdf.
- The NIWRC statement following the Supreme Court's decision in Rahimi is available to read at: https://www.niwrc.org/news/niwrc-statement-united-states-v-rahimi-2024.
- The Coalition of Large Tribes (COLT) statement on Rahimi is available to read at: https://largetribes.org/2024/06/high-court-domestic-abusers-firearms/.