Brooke Brewer, Vol. 55 Staff Member

After his suspected involvement in five shootings in a Dallas, Texas suburb, police found multiple weapons in Zackey Rahimi’s residence. But, Rahimi was prohibited from owning those weapons because he was subjected to a civil protective order restraining him from contact with his ex-girlfriend and their child. As such, Rahimi was indicted and pled guilty to “possessing a firearm while under a domestic violence restraining order[,] in violation of 18 U.S.C. § 922(g)(8).”

On appeal, Rahimi challenged the constitutionality of § 922(g)(8). Though the initial Fifth Circuit panel held that his argument was foreclosed by its prior case law, the United States Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen forced the prior panel to withdraw its opinion and reconsider the case. In the second hearing conducted by a new panel, Rahimi argued twofold: first, that Bruen altered Fifth Circuit precedent foreclosing his argument, and second, that § 922(g)(8) was unconstitutional under Bruen.

To the first point, the Fifth Circuit held that Bruen requires the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” thereby rejecting means-end scrutiny and fundamentally transforming constitutional analysis surrounding the Second Amendment.

Substantively, the Fifth Circuit first recognized that Rahimi is still entitled to Second Amendment protection despite his criminality, reasoning that the Second Amendment cannot be treated differently than other individual rights (and in that vein, cannot be limited). Because the court found that Rahimi possessed the right to own a gun like every other American, § 922(g)(8)’s constraint could only stand if the government proved the regulation’s consistency with “relevantly similar” purpose and procedure for historical practice regulating firearms. Specifically, Rahimi’s right to own a gun would be forfeited if “his conduct ran afoul of a ‘lawful regulatory measure.’”

Ultimately, the court held that no relevantly similar historical regulations existed to justify § 922(g)(8)’s prohibition on the possession of firearms for the goal of protecting a person from domestic gun abuse by a “credible threat.” The court reasoned that despite facial similarities to past practices regulating on the basis of “dangerousness,” historical regulations generally disarmed dangerous classes, not specific individuals. Therefore, the Fifth Circuit held that § 922(g)(8) is outside the scope of firearm regulations traditionally consistent with the Second Amendment.

The Fifth Circuit’s decision ultimately strengthens the Second Amendment while leaving a legal void for public safety initiatives specifically related to domestic violence. While the court noted that the statute serves a “laudable policy goal,” its focus on historical context promises to continue to change the perspective on gun laws post-Bruen. Given its impact on federal law, Attorney General Merrick Garland has indicated that the Supreme Court is likely to take up review, which opens the door for needed clarity on a fundamental constitutional issue.

 

United States v. Rahimi, 59 F.4th 163 (5th Cir. 2023)