United States v. Rahimi

Justice Sotomayor, joined by Justice Kagan, maintained that Bruen was wrongly decided but joined the Court's application of that binding precedent. In her view, even under Bruen, this is an easy case because historical surety and going-armed laws support the principle that people who pose credible threats of physical violence may be disarmed.

She stressed that Bruen requires a historically grounded analogy, not a precise historical match. The Government did not need to identify a founding-era law specifically disarming domestic abusers, because §922(g)(8) and the historical laws share the relevant principle: firearm restrictions may address demonstrated threats of physical violence.

She criticized the dissent's highly exacting comparison as an approach that would disable modern governments from addressing enduring social problems with updated tools. History, she cautioned, should inform Second Amendment analysis without freezing legislative authority at a time when the law often failed to protect women and other excluded groups.

Justice Sotomayor also reiterated her preference for means-end scrutiny. In her view, the Government has a compelling interest in preventing domestic gun violence, and §922(g)(8) is carefully tailored because it applies only after notice, a hearing, and a qualifying protective order.

Justice Gorsuch emphasized the limited nature of the case. Because Rahimi brought a facial challenge, he had to prove that §922(g)(8) was unconstitutional in every application. The statute survives because it has at least one constitutional application: temporary disarmament after notice, a hearing, and a judicial finding that the person poses a credible threat to another's physical safety.

He agreed that the governing inquiry remains text and history. Historical surety and going-armed laws show that the Government has long been able to disarm an individual temporarily after an individualized judicial determination that the person threatened, or was likely to threaten, another with a weapon.

Justice Gorsuch cautioned that the decision resolves only the facial challenge before the Court. It does not decide whether §922(g)(8) is constitutional absent a credible-threat finding, whether permanent disarmament is permissible, whether the statute may be applied to a person who uses a gun in self-defense, or whether legislatures may broadly disarm groups they deem irresponsible.

Justice Kavanaugh wrote to defend a constitutional methodology grounded in text, pre-ratification history, post-ratification history, and precedent. In his view, history is the appropriate guide for identifying the scope and historically recognized exceptions to broadly worded constitutional rights, because it constrains judicial policymaking more effectively than interest balancing.

He explained that post-ratification history and tradition can help clarify vague constitutional language, particularly when early and longstanding governmental practice reflects a common understanding of constitutional authority. But clear constitutional text remains controlling over contrary historical practice.

Applying those principles, Justice Kavanaugh concluded that the Court properly followed Heller, McDonald, and Bruen. The historical tradition reflected in surety and going-armed laws permits disarming individuals who have been found to present a credible physical threat to others, so §922(g)(8) is valid as applied to Rahimi.

Justice Barrett agreed that the Second Amendment codified a pre-existing right whose historically recognized limits define the boundary between the right and the Government's regulatory authority. She emphasized that the history most important to originalism is the history surrounding ratification, although later practice may sometimes reinforce original meaning, liquidate ambiguity, or matter through precedent.

She addressed a central post-Bruen problem: the proper level of generality for historical analogies. Courts should not demand a near-copy of a modern law from the founding era, because historical regulations reveal constitutional principles rather than rigid legislative molds. At the same time, courts must not frame those principles so broadly that the Second Amendment right is diluted.

In her view, the Court identified the right principle at the appropriate level of generality: from the founding onward, firearm laws included measures preventing people who threatened physical harm from misusing firearms. Section 922(g)(8)(C)(i), which applies after a judicial credible-threat finding, falls within that principle.

Justice Jackson joined the Court because Bruen is binding precedent and the majority fairly applied it. But she remained critical of Bruen's exclusive history-and-tradition methodology and viewed the Court's effort to clarify it as an implicit recognition that lower courts have struggled to administer the test.

She observed that lower courts have reached inconsistent results and faced difficult methodological questions after Bruen, including which historical period controls, how many analogous laws establish a tradition, what sources count, and what level of generality courts should use. The task also places judges, litigants, and legislators in the role of amateur historians.

Justice Jackson welcomed the Court's clarification that a modern law need only comport with principles underlying the Second Amendment, but warned that major unanswered questions remain. She urged the Court to give lower courts a more stable and workable standard, both for consistent adjudication and for legislatures attempting to enact constitutionally sound firearm laws.

Justice Thomas concluded that §922(g)(8) violates the Second Amendment because it prohibits core protected conduct: possessing firearms, including at home for self-defense. In his view, Rahimi was plainly among "the people" protected by the Amendment, and the Government therefore bore the burden of identifying a sufficiently analogous historical regulation.

He maintained that the relevant historical comparison requires both a comparable justification and a comparable burden on the right. Section 922(g)(8) addresses the longstanding problem of interpersonal violence, so the Government had to show that a comparable historical rule addressed that problem through comparable means. It did not do so.

Surety laws, Justice Thomas argued, shared §922(g)(8)'s preventive aim but imposed a materially lighter burden. A person subject to a surety could continue to possess, buy, and carry firearms after posting a bond; only a breach of the peace caused forfeiture. By contrast, §922(g)(8) categorically bars possession of nearly all firearms and ammunition and exposes the person to felony punishment, which can in turn produce a permanent firearm disability.

He rejected going-armed or affray laws as analogues because they criminalized completed public conduct that terrorized the community, not anticipated private domestic violence. Those laws targeted a limited manner of public carry, often included a self-defense exception, and required the protections of a criminal prosecution. Section 922(g)(8), by contrast, is triggered by a civil protective order and prohibits all firearm possession.

Justice Thomas also faulted the majority for combining features of separate historical regimes. In his view, Bruen requires a historical law that itself has both a comparable burden and a comparable justification; courts may not borrow the purpose from surety laws and the penalty from criminal affray laws to create a new analogue.

Finally, he rejected the Government's proposed theory that the Second Amendment protects only "law-abiding, responsible" or nondangerous citizens. That theory lacks textual and precedential support and, he warned, would let Congress decide which groups are sufficiently responsible to exercise an enumerated right. Historical efforts to disarm politically or racially disfavored groups illustrate the danger of such open-ended governmental power.