United States v. Rahimi

Consequences

Notable Items:

Is Constitutional Law "trapped in amber"?

• Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. -- Roberts opinion of the court [italics added]
• As the Court puts it today, Bruen was “not meant to suggest a law trapped in amber.” -- Sotomayor concurring [italics added]
• As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber,” see ante, at 7—our only lawful role is to apply them in the cases that come before us. -- Gorsuch concurring
• Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” -- Barrett concurring
• We emphasize that the Second Amendment is “not ... a law trapped in amber.” -- Jackson concuring
• [Legislatures may authorize the temporary disarmament of someone who has been given notice and an opportunity to appear and then has been found by a court to pose a credible threat to the physical safety of a specified individual.]
• Albert W. Alschuler United States v. Rahimi: Let’s Cheer the Supreme Court’s Result But Boo Its Ever-Stranger Standard 2024-07-04
• Josh Blackman Rahimi, Meenie, Miney, Mo; After Only Two Years Bruen's Gotta Go! 2024-06-25

2024-09-12: On remand from the Supreme Court of the United States, the Fifth Ciruit issued a per curiam reverses itself and affirms Rahimi's conviction and sentence. The court order states that:

• Contrary to Bruen (pages 55, 59), surety laws confirm that individual may be disarmed per Rahimi.
• Ho: In the past, the Court has held unconstitutional laws that punish people who don’t belong in federal prison—even if the defendant himself does. See, e.g., United States v. Lopez (1995) ....
• But § 922(g)(8) also punishes victims of domestic violence. As a number of amici have explained, § 922(g)(8) punishes victims who don’t present any danger to anyone, but who are nevertheless subject to a protective order. [Judges failing to properly decide a petition for a restraining order.]
• In our experience, the net of orders of protection is so big that it frequently entangles ... the actual victims in the relationships.”
• But the Court nevertheless decided Lopez’s Commerce Clause challenge—and held the Gun-Free School Zones Act unconstitutional—because it sweeps in those who don’t belong in a federal prison.
• § 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.”
• In response to Lopez, Congress fixed § 922(q) to ensure that it targets only those who belong in federal prison.
• Congress could likewise fix § 922(g)(8) to ensure that it targets only violent criminals, and not victims of domestic violence.

Erwin Chemerinsky Once Again, Originalism’s Hollow Core Is Revealed at the Atlantic 2024-06-25

Abridged version of the opinion prepared for Randy Barnett and Josh Blackman's Constitutional Law: Cases in Context
Michael Dorf's blog post. 2024-06-21
Joseph Fishkin Rahimi pop quiz to distinguish actual quotes from nonsense. 2024-06-21
Eric Segall's blog post. (judges are like umpires -- Roberts) 2024-06-24
Michael Dorf's follow on blog post highlighting Kavanaugh's errors. 2024-06-26 Still, if you're going to claim that consulting centuries of history has substantially more determinate normative implications than other interpretive methodologies, you probably should try to avoid misstatements that reveal you can't even accurately report a perfectly clear statement that was written in the U.S. Reports just a few decades ago.
Linda Greenhouse's op-ed.
Josh Blackman's blog post agreeing with Linda Greenhouse and Michael Dorf's follow on. 2024-06-26 Josh Blackman's blog post comparing Rahimi and United States v. Lopez (1995) .

Issue(s) Before the Court:

Whether prohibiting an individual subject to a domestic violence restraining order that includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual from possessing a firearm is consistent with the Second Amendment. [cobbled together from first paragraph of the opinion of the court.]

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• In December 2019, Rahimi met his girlfriend, C. M., for lunch in a parking lot. C. M. is also the mother of Rahimi’s young child, A. R. During the meal, Rahimi and C. M. began arguing, and Rahimi became enraged.
• C. M. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard.
• ... C. M. went to court to seek a restraining order. In the affidavit accompanying her application, C. M. recounted the parking lot incident as well as other assaults. She also detailed how Rahimi’s conduct had endangered A. R.
• Although Rahimi had an opportunity to contest C. M.’s testimony, he did not do so.
• On February 5, 2020, a state court in Tarrant County, Texas, issued a restraining order against him. The order, entered with the consent of both parties, included a finding that Rahimi had committed “family violence.” App. 2. It also found that this violence was “likely to occur again” and that Rahimi posed “a credible threat” to the “physical safety” of C. M. or A. R. Id., at 2–3.
• It also suspended Rahimi’s gun license for two years.
• A full recounting of the facts is available below

Procedural History:

• Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U. S. C. §922(g)(8).
• A prosecution under Section 922(g)(8) may proceed only if three criteria are met.
  • First, the defendant must have received actual notice and an opportunity to be heard before the order was entered. §922(g)(8)(A).
  • Second, the order must prohibit the defendant from either “harassing, stalking, or threatening” his “intimate partner” or his or his partner’s child, or “engaging in other conduct that would place [the] partner in reasonable fear of bodily injury” to the partner or child. §922(g)(8)(B).
  • Third, under Section 922(g)(8)(C), the order must either contain a finding that the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child, §922(g)(8)(C)(i), or “by its terms explicitly prohibit[ ] the use,” attempted use, or threatened use of “physical force” against those individuals, §922(g)(8)(C)(ii).
• Rahimi’s restraining order met all three criteria.
• Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) violated on its face the Second Amendment right to keep and bear arms.
• Concluding that Circuit precedent foreclosed Rahimi’s Second Amendment challenge, the District Court denied his motion.
• On appeal, he again raised his Second Amendment challenge. The appeal was denied, and Rahimi petitioned for rehearing en banc.
• While Rahimi’s petition was pending, this Court decided New York State Rifle & Pistol Association v. Bruen (2022)
• In light of Bruen, ... the panel concluded that Section 922(g)(8) does not fit within our tradition of firearm regulation.
• We granted certiorari. 600 U. S. ___ (2023)

Rationale

Roberts Majority Opinion (Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett, Jackson)

• Rahimi challenges Section 922(g)(8) on its face.
• ... the Government need only demonstrate that Section 922(g)(8) is constitutional in some of its applications. And here the provision is constitutional as applied to the facts of Rahimi’s own case.
• 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.
• Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found to threaten the physical safety of another. This provision is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right.
• The burden Section 922(g)(8) imposes on the right to bear arms also fits within our regulatory tradition. That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.
• Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi.
• Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, 4 Blackstone 149, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.
• A full description of the rationale is available below

Sotomayor Concurrance (Kagan)

• I write separately to highlight why the Court’s interpretation of Bruen, and not the dissent’s, is the right one.
• I
• The Court’s opinion also clarifies an important methodological point that bears repeating: Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should “conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”
• Although §922(g)(8) “is by no means identical” to the surety or going armed laws, ante, at 13, it “restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws d[id],” ante, at 14.
• That shared principle is sufficient.
• II
• The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen.
• It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal.
• If the dissent’s interpretation of Bruen were the law, then Bruen really would be the “one-way ratchet” that I and the other dissenters in that case feared, “disqualify[ing] virtually any ‘representative historical analogue’ and mak[ing] it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.” 597 U. S., at 112 (Breyer, dissenting).
• This case lays bare the perils of the dissent’s approach.
• Because the dissent concludes that “§922(g)(8) addresses a societal problem—the risk of interpersonal violence—‘that has persisted since the 18th century,’ ” it insists that the means of addressing that problem cannot be “ ‘materially different’ ” from the means that existed in the 18th century.
• Under the dissent’s approach, the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary. [no semi-automatic or automatic weapons, etc.]
• III
• In my view, the Second Amendment allows legislators “to take account of the serious problems posed by gun violence,” Bruen, 597 U. S., at 91 (Breyer, dissenting), not merely by asking what their predecessors at the time of the founding or Reconstruction thought, but by listening to their constituents and crafting new and appropriately tailored solutions. Under the means-end scrutiny that this Court rejected in Bruen but “regularly use[s] ... in cases involving other constitutional provisions,” id., at 106, the constitutionality of §922(g)(8) is even more readily apparent.
• To start, the Government has a compelling interest in keeping firearms out of the hands of domestic abusers.
• Section 922(g)(8) should easily pass constitutional muster under any level of scrutiny.

Gorsuch Concurrance

• ... the government must establish that, in at least some of its applications, the challenged law “impose[s] a comparable burden on the right of armed self-defense” to that imposed by a historically recognized regulation. Id., at 29; see ante, at 7. And it must show that the burden imposed by the current law “is comparably justified.” Bruen, 597 U. S., at 29; see ante, at 7. [emphasis added]
• One more point: Our resolution of Mr. Rahimi’s facial challenge to §922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in “particular circumstances.” Salerno, 481 U. S., at 751.
• ... we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. §922(g)(8)(C)(i)
• We do not resolve whether the government may disarm an individual permanently. [18 U. S. C. §922 (g) It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;]
• We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense [acquires the firearm during an act of self-defense?]
• The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen.
• And after carefully consulting those materials, the Court “conclude[s] only this”: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

Kavanaugh Concurrance

• ... the Court interprets and applies the Constitution by examining text, pre-ratification and post-ratification history, and precedent. [compare Barrett and Gorsuch]]
• I add this concurring opinion to review the proper roles of text, history, and precedent in constitutional interpretation.
• I
• As a general matter, the text of the Constitution says what it means and means what it says.
• [many mechanical examples]
• For example, the First Amendment provides that “Congress shall make no law” “abridging the freedom of speech.”
• Read literally, those Amendments might seem to grant absolute protection, meaning that the government could never regulate speech or guns in any way. But American law has long recognized, as a matter of original understanding and original meaning, that constitutional rights generally come with exceptions. [emphasis added]
• II (4)
• To what extent does the Constitution allow the government to regulate speech or guns, for example? From note 1: There are two ways to frame this point—either (i) determining the exceptions to a constitutional right or (ii) determining the affirmative scope or contours of that constitutional right. Either way, the analysis is the same .... [burden of proof shifts. brett, take off the beer googles, and answer "what is strict scrutiny?]
• ... absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.
• History, not policy, is the proper guide.
• I now turn to explaining how courts apply pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text.
• II A Pre-ratification history
• ... the Court typically scrutinizes the stated intentions and understandings of the Framers and Ratifiers of the Constitution (or, as relevant, the Amendments). The Court also looks to the understandings of the American people from the pertinent ratification era.
• On the other hand, some pre-ratification history can be probative of what the Constitution does not mean. The Framers drafted and approved many provisions of the Constitution precisely to depart from rather than adhere to certain pre-ratification laws, practices, or understandings.
• II B Post-ratification history
• When the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important. Note 4: ... some important questions can arise, such as: (i) the level of generality at which to define a historical practice; (ii) how widespread a historical practice must have been; (iii) how long ago it must have started; and (iv) how long it must have endured.
• A “venerable and accepted tradition [post-ratification history] is not to be laid on the examining table and scrutinized for its conformity to some abstract principle” of “adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed. [emphasis added]
• Note 6: The Court has similarly relied on history when deciding cases involving textually unenumerated rights .... The text supplies no express protection of any asserted substantive right. [enumeration ... shall not be used to deny or disparage other retained by the people. The only(?) command in the Constitution as to how the Constitution is to be read ... and yet Kavanaugh and the court place the burden of proof on the those asserting an unenumerated right.]
• II C Precedent
• [ "... absent precedent ... history ...." Why is precedent last?]
• Precedent is fundamental to day-to-day constitutional decisionmaking in this Court and every American court. ... stare decisis .... [unless we dont like the precedent]
• Courts must respect precedent, while at the same time recognizing that precedent on occasion may appropriately be overturned.
• Even then, however, text and history still matter a great deal. ... the text, as well as pre-ratification and post-ratification history, may appropriately function as a gravitational pull on the Court’s interpretation of precedent. ["... absent precedent ...." are all his clerks "yes-men"? no one to point out the inconsistency?]
• III
• Some say that courts should determine exceptions to broadly worded individual rights, including the Second Amendment, by looking to policy. Uphold a law if it is a good idea; strike it down if it is not.
• ... the proponents ... support a balancing approach variously known as means-end scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite, or strict or intermediate or intermediate- plus or rigorous or skeptical scrutiny. ... policy by another name. It requires judges to weigh the benefits against the burdens of a law ....
• ... I am challenging the notion that those tests are the ordinary approach to constitutional interpretation.
• That is because the balancing approach requires judges to weigh the benefits of a law against its burdens—a value-laden and political task that is usually reserved for the political branches.
• IV (22)
• [we come to the case before the court now]
• In Heller, the Court began with the baseline point that the Second Amendment textually guarantees an individual right.
• In McDonald, the Court held that the Second Amendment was incorporated against the States.
• Then, in Bruen, the Court repeated that the “Nation’s historical tradition of firearm regulation” guides the constitutional analysis of gun regulations and exceptions to the right to bear arms. 97 U. S. 1, 17 (2022); see id., at 79–81 (Kavanaugh concurring)
• * * *

Barrett Concurrance

• Because the Court has taken an originalist approach to the Second Amendment, it is worth pausing to identify the basic premises of originalism. The theory is built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the “discoverable historical meaning ... has legal significance and is authoritative in most circumstances.” K. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whittington).
• So for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function.
• To be sure, postenactment history can be an important tool. For example,
  • it can “reinforce our understanding of the Constitution’s original meaning”;
  • “liquidate ambiguous constitutional provisions”;
  • provide persuasive evidence of the original meaning; and,
  • if stare decisis applies, control the outcome See Vidal v. Elster Barrett concurrence in part)
• It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment’s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood?
• My doubts were not about whether “tradition,” standing alone, is dispositive.
• As I have explained elsewhere, evidence of “tradition” unmoored from original meaning is not binding law. Vidal, 602 U. S., at ___–___ (Barrett, concurring in part) (slip op., at 13–15)
• And scattered cases or regulations pulled from history may have little bearing on the meaning of the text. Samia v. United States, 599 U. S. 635, 656–657 (2023) (Barrett, concurring in part and concurring in judgment)
• “Original history”—i.e., the generally dispositive kind—plays two roles in the Second Amendment context. It elucidates how contemporaries understood the text—for example, the meaning of the phrase “bear Arms.” See Heller, 554 U. S., at 582–592.
• It also plays the more complicated role of determining the scope of the pre-existing right that the people enshrined in our fundamental law.
• In Rahimi’s case, the Court uses history in this latter way. Call this “original contours” history: It looks at historical gun regulations to identify the contours of the right.
• To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two:
  • It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” Ante, at 7.
  • And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority.
• Such assumptions are flawed, and originalism does not require them.
• Here, though, the Court settles on just the right level of generality: “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.”
• Section 922(g)(8)(C)(i) fits well within that principle; therefore, Rahimi’s facial challenge fails.

Jackson Concurrance

• I
• The Court today expounds on the history-and-tradition inquiry that Bruen requires.
• The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them.
• ... in fact, they “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them,” ....
• II
• This discord is striking when compared to the relative harmony that had developed prior to Bruen.
• By the time this Court decided Bruen, every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework that incorporated means-end scrutiny.
• ... the Bruen majority subbed in another two-step evaluation. Courts must, first, determine whether “the Second Amendment’s plain text covers an individual’s conduct.” Id., at 24. If it does, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
• But, per Bruen, courts evaluating a Second Amendment challenge must consider history to the exclusion of all else.
• Consistent analyses and outcomes are likely to remain elusive because whether Bruen’s test is satisfied in a particular case seems to depend on the suitability of whatever historical sources the parties can manage to cobble together, as well as the level of generality at which a court evaluates those sources—neither of which we have as yet adequately clarified.
• III
• Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruen’s history-focused test ticks none of those boxes.
• * * *

Thomas Dissent

• After New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8)
• I [Background]
• To trigger §922(g)(8)’s prohibition, a restraining order must bear three characteristics.
  • First, the order issues after a hearing where the accused “received actual notice” and had “an opportunity to participate.” §922(g)(8)(A).
  • Second, the order restrains the accused from engaging in threatening behavior against an intimate partner or child. §922(g)(8)(B).
  • Third, the order has either “a finding that [the accused] represents a credible threat to the physical safety of [an] intimate partner or child,” or an “explici[t] prohibit[ion]” on “the use, attempted use, or threatened use of physical force against [an] intimate partner or child.” §922(g)(8)(C).
• Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections.
• The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order.
• In 2020, Zackey Rahimi and his ex-girlfriend, C. M., entered into a qualifying civil restraining order.
• Section 922(g)(8), Rahimi argued, violates that right by penalizing firearms possession.
• II [Bruen test]
• As the Court recognizes, Bruen provides the framework for analyzing whether a regulation such as §922(g)(8) violates the Second Amendment’s mandate.
• Under our precedent, then, we must resolve two questions to determine if §922(g)(8) violates the Second Amendment:
  • (1) Does §922(g)(8) target conduct protected by the Second Amendment’s plain text; and
  • (2) does the Government establish that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation?
• III [922(g)(8) without historical analogue]
• Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendment--possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the “materially different means” of surety laws.
• III A
• It is undisputed that §922(g)(8) targets conduct encompassed by the Second Amendment’s plain text.
• Since Rahimi is a member of the political community, he falls within the Second Amendment’s guarantee.
• III B
• Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification.
• ... §922(g)(8) addresses a societal problem—the risk of interpersonal violence—“that has persisted since the 18th century,” yet was addressed “through [the] materially different means” of surety laws.
• III B 1
• The Government offers only two categories of evidence that are even within the ballpark of §922(g)(8)’s burden and justification: English laws disarming persons “dangerous” to the peace of the kingdom, and commentary discussing peaceable citizens bearing arms. Neither category ultimately does the job.
• III B 1 i
• The Second Amendment stems from English resistance against “dangerous” person laws. [alternate facts. alternate history.]
• [various statements regarding Stuart Kings and later]
• While the English were concerned about preventing insurrection and armed rebellion, §922(g)(8) is concerned with preventing interpersonal violence. “Dangerous” person laws thus offer the Government no support.
• III B 1 ii
• After all, the Founders considered, and rejected, any textual limitations in favor of an unqualified directive: “[T]he right of the people to keep and bear Arms, shall not be infringed.” [re-write the amendment to fit Thomas' claim.]
• III B 1 iii
• The Government points to an assortment of firearm regulations, covering everything from storage practices to treason and mental illness. They are all irrelevant for purposes of §922(g)(8).
• ... calling a modern and historical law comparably justified because they both prevent unfit persons from accessing firearms would render our comparable-justification inquiry toothless.
• In sum, the Government has not identified any historical regulation that is relevantly similar to §922(g)(8).
• III B 2 [Surety Laws]
• This dearth of evidence is unsurprising because the Founders responded to the societal problem of interpersonal violence through a less burdensome regime: surety laws.
• Surety demands were also expressly available to prevent domestic violence. The right to demand sureties in cases of potential domestic violence was recognized not only by treatises, but also the founding-era courts.
• III B 3 [Surety vs 922(g)(8)]
• Although surety laws shared a common justification with §922(g)(8), surety laws imposed a materially different burden.
• Critically, a surety demand did not alter an individual’s right to keep and bear arms. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime.
• The combination of the Government’s sweeping view of the firearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered firearms and ammunition makes §922(g)(8)’s burden unmistakable: The statute revokes a citizen’s Second Amendment right while the civil restraining order is in place.
• Surety laws preserve the Second Amendment right, whereas §922(g)(8) strips an individual of that right.
• Rather, §922(g)(8) addresses a societal problem—the risk of interpersonal violence—“that has persisted since the 18th century,” yet was addressed “through [the] materially different means” of surety laws.
• III C [Affray Laws]
• The Court has two rejoinders, surety and affray laws. Neither is a compelling historical analogue. As I have explained, surety laws did not impose a burden comparable to §922(g)(8).
• And, affray laws had a dissimilar burden and justification.
• ... the Court’s argument requires combining aspects of surety and affray laws to justify §922(g)(8). This piecemeal approach is not what the Second Amendment or our precedents countenance.
• III C 1
• Next, the Court relies upon affray laws prohibiting “riding or going armed, with dangerous or unusual weapons, [to] terrif[y] the good people of the land.”
• First, affray laws had a distinct justification from §922(g)(8) because they regulated only certain public conduct that injured the entire community.
• As relevant here, an affray included arming oneself “with dangerous and unusual weapons, in such a manner as [to] naturally cause a terror to the people”—i.e., “going armed.”
• An affray could occur only in “some public place,” and captured only conduct affecting the broader public. Affrays were intentionally distinguished from assaults and private interpersonal violence on that same basis. Affrays thus did not cover the very conduct §922(g)(8) seeks to prevent—interpersonal violence in the home. [why "in the home"? Rahimi assaulted and battered CM in public.]
• Second, affray laws did not impose a burden analogous to §922(g)(8). Section 922(g)(8) thus bans all Second Amendment-protected activity.
• ... Affray laws were criminal statutes that penalized past behavior, whereas §922(g)(8) is triggered by a civil restraining order that seeks to prevent future behavior.
• While the Second Amendment does not demand a historical twin, it requires something closer than affray laws, which expressly carve out the very conduct §922(g)(8) was designed to prevent (interpersonal violence in the home).
• III C 2
• The Court recognizes that surety and affray laws on their own are not enough. So it takes pieces from each to stitch together an analogue for §922(g)(8). Ante, at 13. Our precedents foreclose that approach.
• The Court’s contrary approach of mixing and matching historical laws—relying on one law’s burden and another law’s justification—defeats the purpose of a historical inquiry altogether.
• Neither the Court nor the Government identifies a single historical regulation with a comparable burden and justification as §922(g)(8). Because there is none, I would conclude that the statute is inconsistent with the Second Amendment.
• IV
• The Government, for its part, tries to rewrite the Second Amendment to salvage its case. It argues that the Second Amendment allows Congress to disarm anyone who is not “responsible” and “law-abiding.”
• IV A
• The Government’s position is a bald attempt to refashion this Court’s doctrine. At the outset of this case, the Government contended that the Court has already held the Second Amendment protects only “responsible, law-abiding” citizens.
• IV B
• The Government’s “law-abiding, dangerous citizen” theory is also antithetical to our constitutional structure.
• Yet, the Government’s “law-abiding, dangerous citizen” test—and indeed any similar, principle-based approach—would hollow out the Second Amendment of any substance.
• At base, whether a person could keep, bear, or even possess firearms would be Congress’s policy choice under the Government’s test.
• * * *
• 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. [aggravated assault as a felony. failure of Texas to bring a criminal indictment.]]
• 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. It cannot.
• The Government has not borne its burden to prove that §922(g)(8) is consistent with the Second Amendment’s text and historical understanding.

Full Recounting of Facts

• In December 2019, Rahimi met his girlfriend, C. M., for lunch in a parking lot. C. M. is also the mother of Rahimi’s young child, A. R. During the meal, Rahimi and C. M. began arguing, and Rahimi became enraged.
• C. M. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard.
• When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the passenger seat. C. M. took advantage of the opportunity to escape.
• Rahimi fired as she fled, although it is unclear whether he was aiming at C. M. or the witness.
• Rahimi later called C. M. and warned that he would shoot her if she reported the incident.
• ... C. M. went to court to seek a restraining order. In the affidavit accompanying her application, C. M. recounted the parking lot incident as well as other assaults. She also detailed how Rahimi’s conduct had endangered A. R.
• Although Rahimi had an opportunity to contest C. M.’s testimony, he did not do so.
• On February 5, 2020, a state court in Tarrant County, Texas, issued a restraining order against him. The order, entered with the consent of both parties, included a finding that Rahimi had committed “family violence.” App. 2. It also found that this violence was “likely to occur again” and that Rahimi posed “a credible threat” to the “physical safety” of C. M. or A. R. Id., at 2–3.
• It also suspended Rahimi’s gun license for two years.
• In May [2020], however, Rahimi violated the order by approaching C. M.’s home at night.
• In November [2020], Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings.
• The first, which occurred in December 2020, arose from Rahimi’s dealing in illegal drugs. After one of his customers “started talking trash,” Rahimi drove to the man’s home and shot into it.
• While driving the next day, Rahimi collided with another car, exited his vehicle, and proceeded to shoot at the other car.
• Three days later, he fired his gun in the air while driving through a residential neighborhood.
• A few weeks after that, ... fired several times toward the truck and a nearby car before fleeing.
• Two weeks after that, Rahimi and a friend were dining at a roadside burger restaurant. When the restaurant declined his friend’s credit card, Rahimi pulled a gun and shot into the air.
• The police obtained a warrant to search Rahimi’s residence. There they discovered a pistol, a rifle, ammunition—and a copy of the restraining order.
• A list of the material facts is available above

Majority Full Argument

• I A
• Full Recounting of Facts
• I B
• Procedural History:
• II
• Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.
• II A
• The spark that ignited the American Revolution was struck at Lexington and Concord, when the British governor dispatched soldiers to seize the local farmers’ arms and powder stores. [seize the military stores as Dunmore did at Williamsburg Va.]
• As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding.
• By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.
• As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. 597 U. S., at 26–31. [emphasis added]
• Why and how the regulation burdens the right are central to this inquiry.
• [Why] For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.
• [How] Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding.
• II B
• II B 1 Failure of the facial challenge
• Rahimi challenges Section 922(g)(8) on its face.
• ... the Government need only demonstrate that Section 922(g)(8) is constitutional in some of its applications. And here the provision is constitutional as applied to the facts of Rahimi’s own case.
• Our analysis starts and stops with Section 922(g)(8)(C)(i) because the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.
• II B 2 Analogous laws
• [back to talking of English law from decades and centuries before 1776.]
• By the 1700s and early 1800s, however, two distinct legal regimes had developed that specifically addressed firearms violence.
• The first were the surety laws. ..., the law authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed. Well entrenched in the common law, the surety laws could be invoked to prevent all forms of violence, including spousal abuse. Importantly for this case, the surety laws also targeted the misuse of firearms. [Note the examples cited (Susannah Wyllys Strong 1790 and 1795 Mass. Acts) post-date ratification] [emphasis added]
• ... a second regime provided a mechanism for punishing those who had menaced others with firearms. These were the “going armed” laws, a particular subset of the ancient common-law prohibition on affrays. [emphasis added]
• ... the going armed laws prohibited “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.” Therefore, the law punished these acts with “forfeiture of the arms ... and imprisonment.” Moreover, at least four States—Massachusetts (1807), New Hampshire (1761), North Carolina (1741), and Virginia (1786)—expressly codified prohibitions on going armed.
• II B 3 Combining Surety and Affray Laws works
• 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.
• Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found to threaten the physical safety of another. This provision is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right.
• The burden Section 922(g)(8) imposes on the right to bear arms also fits within our regulatory tradition. That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.
• Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi.
• Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, 4 Blackstone 149, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.
• Section 922(g)(8)(C)(i) ... presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others.
• II B 4 Errors of the Dissent and the Fifth Circuit
• The dissent does, however, acknowledge that Section 922(g)(8) is within that tradition when it comes to the “why” of the appropriate inquiry. The objection is to the “how.” For the reasons we have set forth, however, we conclude that Section 922(g)(8) satisfies that part of the inquiry as well.
• For its part, the Fifth Circuit made two errors. First, like the dissent, it read Bruen to require a “historical twin” rather than a “historical analogue.” Second, it did not correctly apply our precedents governing facial challenges. Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922(g)(8) might raise constitutional concerns. That error left the panel slaying a strawman.
• II B 5
• ... we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law.
• * * *
• ... we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.
• The core of the rationale is available above