Who can have their Second Amendment rights taken away? SCOTUS may now decide

The Supreme Court will hold oral argument in U.S. v. Rahimi on Tuesday. The case involves the constitutionality of a federal law that criminalizes firearm possession by an individual subject to a domestic violence restraining order. 

Rahimi is one of a slew of federal court decisions applying the Supreme Court’s recent Second Amendment precedent of New York State Rifle & Pistol Association v. Bruen (2022), which requires that any statutory firearm restriction be consistent “with this nation’s historical tradition of firearm regulation.”

Bruen didn’t change the Supreme Court’s preexisting position that the Second Amendment fully covers only “ordinary” or “responsible,” “law-abiding citizens,” as set out in District of Columbia v. Heller (2008). It’s time for the court to tell us what those words mean.

Zackey Rahimi was subjected to a restraining order after being found in a civil proceeding to be “a credible threat to the physical safety of [an] intimate partner.” He was then indicted solely because he possessed a firearm while subject to the restraining order.

The statute under which Rahimi was indicted thus eliminates an individual’s right to bear arms based on a finding in a civil proceeding, as opposed to some criminal process. This is constitutionally problematic, particularly because the due process protections that attach to a criminal proceeding are far higher than those attached to a civil proceeding.

A thornier question is whether Rahimi even qualifies as an “ordinary, law-abiding citizen,” entitled to full Second Amendment protection. The Supreme Court has previously suggested that “ordinary” and “law-abiding” simply refer to the government’s historical authority to strip felons of their Second Amendment rights. It’s not clear whether this interpretation holds up in light of Bruen, however.

Before Bruen, federal courts evaluating the constitutionality of a sidearm regulation could engage in a “means-end” analysis, through which the social policy goals of the regulation could be weighed against the burden it imposed on an individual’s Second Amendment rights. Under Bruen, however, in order to establish a firearm regulation’s constitutionality, the government must point to “historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation” — a “well-established and representative historical analogue.”

Applying Bruen, the Fifth U.S. Circuit Court of Appeals threw out Rahimi’s conviction, striking down the domestic violence law as unconstitutional. Under Bruen, that outcome seems correct, at least at first blush. The U.S. just doesn’t have a historical tradition of regulating firearm possession in a way that absolutely denies Second Amendment rights to individuals based on civil proceedings.

But the Fifth Circuit also recognized that the U.S. does have such a tradition when it comes to merely curtailing Second Amendment rights, especially in the case of provably dangerous individuals. At common law, an individual could demand a “surety of the peace” against any person that the individual could show was a threat to him. Many early U.S. jurisdictions codified that tradition in statutory law, often by requiring reckless individuals to post bonds in order to secure full entitlement to rights under the Second Amendment.

Rahimi seems to fit that bill. At the time of his indictment, he had multiple state charges for violent crimes pending against him related to no fewer than five shootings between December 2020 and January 2021. One shooting came in reaction to a minor car accident; another after his friend’s credit card was declined at a restaurant.

But Rahimi wasn’t a felon at that point, as he hadn’t been convicted yet for any of those shootings. And the Fifth Circuit interpreted the qualifiers “ordinary” and “law-abiding” to exclude from full Second Amendment coverage only felons or classes of individuals “whose disarmament the Founders ‘presumptively’ tolerated or would have tolerated” in order to preserve public order (insurrectionists, for example). That reasoning — entitling Rahimi to full Second Amendment protection because he is not a felon — is problematic under Bruen.

The first federal law allowing for disarmament of felons dates to 1938. In other words, there doesn’t appear to be a strong Founding-era historical tradition that supports the notion that a felony conviction should be the line at which an individual becomes excluded from the “ordinary, law-abiding citizens” fully covered by the Second Amendment. That line thus seems inconsistent with the “historical analogue” command of Bruen, and the justices must now consider whether that line makes sense insofar as it seems to entitle individuals like Rahimi to the full protection of the Second Amendment.

A suspected domestic abuser with a demonstrated history of recklessly discharging firearms is a threat to public order. He probably shouldn’t be entitled to the full protection of the Second Amendment. The justices can now refine Bruen to tolerate that outcome by clarifying the meaning of “ordinary, law-abiding citizen,” irrespective of how they rule on the domestic violence law’s constitutionality.

Their finding could guide legislatures in crafting sensible firearm regulations, akin to historical surety laws, which comply with Bruen but curtail Second Amendment protections for demonstrably dangerous individuals, even if they haven’t yet been convicted of felonies.

Alex Talel is an attorney who served as law clerk to Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit and to Judge Sidney H. Stein of the U.S. District Court for the Southern District of New York.