*Collin Riley
I. Introduction
In adopting the Second Amendment, the people of the United States of America also embraced a persistent question: to what extent can the government restrict an individual’s right to bear arms? The answer to this dilemma remains unclear, due to difficulty in balancing the competing interests of promoting public safety and protecting the fundamental rights of the people.[1] This Term, the Supreme Court will hear the case of United States v. Rahimi, in which Rahimi challenges a federal statute prohibiting firearms possession by individuals subject to a domestic violence protective order.[2] A ruling in favor of Rahimi that finds the statute unconstitutional could open the floodgates for further constitutional challenges—similar to how N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen opened the door for Rahimi.[3]
II. To Heller and Back: The New Old Test for Analyzing Second Amendment Challenges
In June 2008, the Supreme Court ruled on District of Columbia v. Heller, which involved a challenge to gun-control statutes enforced in D.C. prohibiting the possession of usable handguns in a home.[4] In concluding that the statutes violated the Second Amendment,[5] the Court first determined that the Second Amendment’s text covered Heller’s conduct.[6] Next, the Court conducted an in-depth historical analysis to determine if the disputed regulation was consistent with this Nation’s established tradition of firearm regulation.[7]
Two years later, the Supreme Court reaffirmed its decision in Heller when ruling on the case of McDonald v. Chicago.[8]In McDonald, the Court concluded that the Fourteenth Amendment incorporates[9] the Second Amendment right to keep and bear arms for the purpose of self-defense.[10] Following the decisions in Heller and McDonald, the Courts of Appeals developed a two-step approach for analyzing Second Amendment challenges.[11] The method consisted of a historical analysis of the challenged text followed by a means-end scrutiny test.[12] The courts employed this two-part test for years until the Supreme Court decided Bruen in 2021.[13]
In Bruen, the Court held that the Courts of Appeals were mistaken when they included a means-end scrutiny test in their analysis of Second Amendment challenges.[14] Justice Thomas explained that the Court declined to engage in means-end scrutiny in Heller because the “very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”[15] The decision in Bruen reinstated the historical inquiry outlined in Heller, which assesses whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.[16]
III. United States v. Rahimi
Zackey Rahimi challenged the constitutionality of a federal statute that prohibits the possession of firearms by individuals subject to a domestic violence protective order.[17] The lower court and a Fifth Circuit Court of Appeals panel swiftly shot down Rahimi’s argument under the pre-Bruen two-step test.[18] However, after the Bruen decision, the panel withdrew its opinion, and the Fifth Circuit re-evaluated Rahimi’s challenge.[19] The court analyzed the statute through a historical lens, without any means-end inquiry, and subsequently found it unconstitutional.[20]
The United States petitioned the Supreme Court, which granted certiorari to hear the case.[21] In its brief accompanying the petition, the United States argues that the Fifth Circuit erred in its historical analysis of the challenged statute.[22] The crux of the United States’ argument is that “the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.”[23] The United States disputes the Fifth Circuit’s conclusion that the phrase “law-abiding, responsible citizens” was used as shorthand, in Heller, to explain long-standing traditions of prohibiting the possession of firearms by felons and the mentally ill or laws forbidding firearms in places like schools and government buildings.[24] Instead, the United States asserts that people have understood the phrase to grant the government discretion in disarming “individuals whom they have found to be dangerous, irresponsible, or otherwise unfit to possess arms.”[25] The United States’ brief included research highlighting the dangers associated with persons subject to domestic violence protective orders possessing firearms.[26] Stressing the increased risks of harm to domestic violence victims, the United States argue that persons subject to protective orders for domestic violence are definitively “not responsible” and, therefore, forfeit their right to bear arms under the Second Amendment.[27]
IV. Conclusion: What Lies on the Horizon?
In its upcoming Term, the same conservative-leaning Supreme Court that issued the Bruen decision will render a decision in Rahimi.[28] The Court will employ an in-depth historical analysis of the challenged statute, consistent with the Heller and Bruen decisions, which will affect the 48 jurisdictions in the United States that permit the restriction of gun possession by persons subject to protective orders.[29] All of these statutes could be called into question, should the Court rule in favor of Rahimi. Other statutes that impose restrictions on Second Amendment rights will likely face challenges as well. For example, other provisions from the statute challenged in Rahimi contain firearm prohibitions for individuals convicted of a crime punishable by imprisonment for a term exceeding one year, for unlawful users of any controlled substances, and for individuals dishonorably discharged from the Armed Forces.[30] Regardless of the efficacy of the policy behind these statutes, a decision in favor of Rahimi could call into question the constitutionality of their enforcement.
*Collin Riley, currently in his second year as a day student at the University of Baltimore School of Law, holds the role of Staff Editor for the Law Review and membership in the Royal Graham Shannonhouse III Honor Society. In the course of his 1L summer, he undertook a rewarding internship at Cochran and Chhabra, a distinguished law practice located in Annapolis, MD.
Before embarking on his legal journey, Collin honed his skills in culinary arts, making contributions to several prominent Baltimore restaurants. Looking ahead, Collin envisions his future firmly rooted in the Baltimore community, with aspirations to contribute meaningfully to its betterment upon his graduation.
[1] Katherine Shaeffer, Key Facts About Americans and Guns, Pew Research Center (Sep. 13, 2021), https://pewrsr.ch/48hGvdx.
[2] United States v. Rahimi, 61 F.4th 443 (Pincite) (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915).
[3] Rahimi, 61 F.4th at 448.
[4] D.C. v. Heller, 554 U.S. 570, 573 (2008).
[5] Id. at 635.
[6] Id. at 628. Dick Heller, a D.C. special police officer, filed a lawsuit in the Federal District Court for the District of Columbia, on Second Amendment grounds after he was denied a registration certificate for a handgun he wished to keep at his home. Id. at 575–576.
[7] Id. at 619–28.
[8] McDonald v. City of Chicago, 561 U.S. 742, (791) (2010).
[9] Incorporation into the 14th amendment means that a provision of the US bill of rights– in this case the 2nd amendment– is applicable to the states through the Due Process clause of the 14th Amendment. See id. at 758.
[10] Id. at 791.
[11] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125 (2022).
[12] Id. at 2126, 2129. Means-end scrutiny tests, such as strict or intermediate scrutiny, are interest-balancing tests aimed at determining whether the burden placed by statutes on protected interests is proportionate to the government’s intended benefits. Id. at 2129.
[13] Id. at 2127.
[14] Id.
[15] Id. at 2129.
[16] Id. at 2127.
[17] United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915).
[18] Id. at 449.
[19] Id.
[20] Id. at 461.
[21] Rahimi, 143 S. Ct. 2688.
[22] Brief for Petitioner at 41–44., United States v. Rahimi, 143 S. Ct. 2688 (2023) (No. 22-915).
[23] Id. at 6.
[24] Rahimi, 61 F.4th at 452.
[25] Brief for Petitioner, supra note 22, at 7.
[26] Id. at 29–32.
[27] Id.
[28] Rahimi, 143 S. Ct. at 2689.
[29] Brief for Petitioner, supra note 22, at 35.
[30] 18 U.S.C. § 922(g). Subsection 3 of the statute prohibits the possession of firearms for any person “who is an unlawful user of or addicted to any controlled substance.” 18 U.S.C. § 922(g)(3). According to an update by the National Conference of State Legislatures, as of April 24, 2023, 38 states, three territories, and D.C. allow medical cannabis use, many opting for adult recreational use. See Nat’l Conf. of State Legislatures, State Medical Cannabis Laws (Jun. 22, 2023), https://www.ncsl.org/health/state-medical-cannabis-laws. As most states trend towards acceptance of regulated cannabis consumption (federally a Schedule 1 controlled substance), the question of whether the prohibition of gun ownership for cannabis users is constitutional emerges. See also 21 U.S.C. § 812(c)(c) (listing hallucinogenic substances classified as Schedule 1).
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