The Volokh Conspiracy

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Some Takeaways from Today's Rahimi Second Amendment Opinions


A few practical thoughts for future cases (all bold emphasis added):

[1.] The Court solidly accepts (with only Justice Thomas dissenting) that "the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others," at least after a judicial finding of such threat. That judicial finding can be in a civil case, and without proof beyond a reasonable doubt.

[2.] The majority opinion is likely to add force to arguments for the constitutionality of so-called "red flag" laws, which empower courts to order seizure of firearms from people when there is sufficient specific, articulable evidence that those people are dangerous (generally for mental-health-related reasons). Of course, much will depend on the details of the particular laws.

[3.] The decision, however, does not validate all restraining order statutes. Consider, for instance, California Code of Civil Procedure § 527.6; that statute authorizes "harassment restraining orders" based on "clear and convincing evidence" of "harassment," which includes not just "unlawful violence" or "a credible threat of violence," but also (emphasis added)

a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.

{"Course of conduct" is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of "course of conduct."}

Courts have sometimes issued such harassment restraining orders based just on repeated online public criticism, or other offensive speech, with no findings of "credible threat to the physical safety of others." (See the recent post on Adams v. Gulley, California Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial.) And California law categorically mandates that "The court shall order a person subject to a protective order issued pursuant to this section to relinquish any firearms" (as indeed happened in Adams v. Gulley). Such orders, issued in the absence of any finding of threat to physical safety, should remain challengeable under the Second Amendment.

[4.] The majority repeated Heller's statement that "prohibitions … on the possession of firearms by 'felons and the mentally ill'[] are 'presumptively lawful'"; Justice Kavanaugh's concurrence did the same, though Justice Thomas's dissent noted that this statement in Heller was "dictum." This suggests that the Court remains generally open to those restrictions, even though it turns out such restrictions actually lack a long historical pedigree.

At the same time, perhaps there is some room after Rahimi for this "presumpti[on]" to be rebutted with regard to people convicted of felonies that don't suggest a "credible threat to the physical safety of others," especially if those felonies are part of the well-post-Framing increase in the number of nonviolent crimes that are classified as felonies. A few courts have so concluded (to oversimplify slightly); U.S. v. Range (3d Cir. 2023) (en banc) is one example. I expect that the Court will send Range back to the Third Circuit for further consideration in light of Rahimi; we'll see what the Third Circuit judges say on remand.

[5.] The Court expressly declined to resolve whether the most relevant history is as of 1791 (when the Second Amendment was ratified) or 1868 (when the Fourteenth Amendment, which has been read as applying the Second Amendment to the states, was ratified):

We also recognized in Bruen the "ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government)." We explained that under the circumstances, resolving the dispute was unnecessary to decide the case. The same is true here.

This may be important for various questions, including whether limits on gun acquisition or possession by 18-to-20-year-olds are constitutional.

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Some broader methodological takeaways:

[6.] The Court's six conservatives remain solidly committed to analyzing arms restrictions by considering pre-ratification and shortly post-ratification history, and not using balancing tests, "strict scrutiny," "intermediate scrutiny," or the like. Speculation that Justice Barrett was moving away from that approach, based on her Vidal v. Elster concurrence, was plausible at the time of that concurrence, but appears not to have been borne out. Justice Barrett's concurrence in Rahimi reaffirms her originalist approach; to the extent it notes differences from some of the other Justices, it has more to do with her skepticism of certain uses of "tradition" (as opposed to "original history," which she continues to endorse as "generally dispositive").

[7.] Five of the six conservatives (all but Justice Thomas) are willing to uphold restrictions that fit generally within a "regulatory tradition" going back to ratification, but that go beyond the specific details of those historical regulations:

[W]hen a challenged regulation does not precisely match its historical precursors, "it still may be analogous enough to pass constitutional muster." The law must comport with the principles underlying the Second Amendment, but it need not be a "dead ringer" or a "historical twin."

In particular, the majority pointed to

  1. "surety laws," under which "a magistrate could "oblig[e] those persons, [of] whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance … that such offence … shall not happen[,] by finding pledges or securities," coupled with
  2. "going armed" laws that imposed prison terms on people for "riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land," which tended to lead "to actual violence." (As the Court held in Bruen, the "going armed" laws prohibited going armed in circumstances that created a clear threat of violence, and didn't ban "peaceable public carry.")

The majority concluded:

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.

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Finally, a couple of quick thoughts about the three liberal Justices' concurrences (though their views, as minority views on the Second Amendment, are less practically significant at this point) and about Justice Thomas's dissent (which is likewise less practically significant, as a dissent):

[8.] The liberal Justices continue to reject Bruen and possibly Heller as well, and prefer a "means-ends scrutiny" test (sometimes intermediate scrutiny, under which nearly all gun restrictions have been upheld, and sometimes strict scrutiny). Justice Jackson in particular argues that the Bruen historical approach should be rejected because it has proved unworkable in lower courts:

In my view, as this Court thinks of, and speaks about, history's relevance to the interpretation of constitutional provisions, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention.

[9.] Justice Thomas stresses (as Judge Ho did in his separate Fifth Circuit opinion) that:

This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years' imprisonment. Assuming C. M.'s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime….