Is it constitutional to restrict gun rights for individuals under domestic violence restraining orders? Professor Joseph Blocher of Duke Law School provides Second Amendment analysis.
The case of United States v. Rahimi evaluates whether civil domestic violence orders are sufficient under the Second Amendment to restrict access to firearms. Professor Blocher explains that the case centers on 18 USC 922(g)(8), a federal law that bars individuals under certain domestic violence restraining orders from owning firearms. He outlines the Court's decision to uphold the law using “originalist” legal doctrine.
The Opinion, written by Chief Justice John Roberts provides additional color on the Second Amendment test established in New York State Rifle & Pistol Association v. Bruen. In that case, the Court found that the justifications for modern gun laws must be based on whether there is a historical analog at the time of the nation’s founding rather than contemporary policy interests. This “text, history, and tradition” approach raised questions for cases such as Rahimi’s since domestic violence laws such as 18 USC 922(g)(8) did not exist at the founding.
While gun restrictions for civil DV orders did not exist at the time of the founding, Chief Justice Roberts explained that the Second Amendment test does not require a historical twin. Rather, it was sufficient for the Court to find laws which restricted guns from people deemed to be dangerous in order to justify the domestic violence law as it similarly seeks to disarm the dangerous.
Joseph Blocher is a Professor of Law at Duke Law School and co-director of the Duke Center for Firearms Law.
This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law.
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Host: Hello and welcome to Talks on Law. I'm Joel Cohen. Today, hot off the presses, we'll be discussing the Supreme Court's latest Second Amendment decision, that's United States v. Rahimi. We have a fantastic guest back with us again, Professor Joseph Blocher of Duke Law School and the co-director of the Duke Center for Firearms Law. Joseph, did you get any downtime today, or have you been non-stop?
Professor Blocher: It's been a busy one, Joel. Here we are just a couple of hours after this opinion dropped, and I've done nothing but read and talk about it. I'm looking forward to talking about it with you.
Host: Do you remember the time when the Second Amendment was sleepy and judges never wrote about it?
Professor Blocher: It's really funny. When I became a law professor about 15 years ago, people told me, "Don't go into the Second Amendment, there's not enough going on. You'll never get tenure, there's not enough to write about." And now I just can't even keep up with what the Supreme Court's doing, and today's no exception. I mean, this is a really, really fascinating and rich opinion that's going to give us a lot to write and think and talk about, I think, for years to come.
Host: Well, we released a piece at TalksOnLaw on Rahimi pre-decision. I guess now that it's post-decision, can you tee it up? What's at stake here? Why is this case important?
Professor Blocher: Yeah, I mean, I think there are two things. One, I'll say is the narrow but really important issue, which is the constitutionality of a particular federal law. And then more broadly, there's the methodological question about how courts should be doing Second Amendment cases going forward. So, on the actual law, what this case is about is a federal provision called 18 USC 922(g)(8), which says that people who are subject to certain kinds of domestic violence restraining orders are not allowed to possess firearms, at least for the duration of that order. Zackey Rahimi, the petitioner in this case, was subject to such an order, did possess a weapon, and was charged with violating that federal law. He argued, with his public defenders doing exactly what public defenders should do, that this violated his constitutional rights, that the Second Amendment allows him, as a member of the people protected by the Second Amendment, to possess a firearm. And the Fifth Circuit Court of Appeals agreed and, in a unanimous decision, struck down that federal law and allowed Zackey Rahimi to have a gun. The government appealed. The Supreme Court heard oral argument way back in November. So we're having this conversation in June of 2024; this case was argued in November of 2023. So there's been a lot of discussion, apparently, happening amongst the justices.
Host: And important decisions can require reflection.
Professor Blocher: Yeah, and this one, I mean, we got a lot of different decisions out of it. And, of course, one was about the constitutionality of that provision, and the Court upheld it. That is, the Court said it is constitutional to deny weapons to people subject to domestic violence restraining orders. And we can talk, of course, more about the ins and outs of that. But the second big thing at stake in Rahimi was really the first chance the Court has had to clarify or maybe slightly alter what it had said in the 2022 decision in New York State Rifle & Pistol Association v. Bruen, which you and I have had the pleasure to talk about before. And what Bruen had said was that from now on, the constitutionality of modern gun laws has to be evaluated based solely on whether they are consistent with historical tradition, not whether, for example, they further important government interests like keeping people alive or preventing people from being terrorized, right? We have to reason solely from history. That caused a lot of confusion, a lot of disagreement in the lower courts, a lot of people very critical of that purely historical test. So in Rahimi, the Court had a chance to revisit it, maybe clarify it, and say a little bit more. And again, we got a lot more words around the Bruen opinion there.
Host: So the TLDR here is the government can take weapons away from those under domestic violence restraining orders, but there are a lot of other twists and turns that we'll get into. But I guess, first off, unlike some of the Supreme Court cases that we see, Rahimi in many respects isn't an ideal plaintiff for those who wanted to see the law change here.
Professor Blocher: I think you're saying that with aplomb and slight understatement. Zackey Rahimi is definitely not the petitioner I think that gun rights advocates wanted. It's interesting to contrast this case with, for example, Heller, right? The sort of foundational case for the modern Second Amendment. And there you've got a carefully chosen set of plaintiffs, initially including Dick Heller, who was a security guard at the Federal Judicial Center in Washington, just up the street from the Supreme Court. And so, you know, when we talked about Heller, we talked about how that case was sort of teed up. Rahimi is very different, right? This guy was convicted of a crime, represented by public defenders. Again, not a case that was sort of engineered by the gun rights movement or by an institutional plaintiff. This really was just a person using the best arguments that he had at his disposal and, you know, in so many ways not a representative gun owner. Not the person that the gun rights movement, I think, would have wanted to have at the face of the movement. And just to give a little flavor of that, I mean, this case sort of begins when Zackey Rahimi gets into a fight with his then-girlfriend, abuses her in public, and then is worried that some people had seen that happen, so he fires his gun in the air to scare them off. She gets away, later is able to get a restraining order against him, which is the order sort of at the center of this case. He has notice of that, he has an opportunity to contest it, and he agrees to the order, which specifically prohibits him from having a weapon. It says he presents a credible threat to her physical safety, understandably. But then Zackey Rahimi goes on to get another gun, maybe it was even the same gun, I honestly don't remember, and then allegedly engaged in a lot more violent activity, including shooting up a Whataburger restaurant when his friend's credit card got declined.Anybody from Texas will know that's a serious offense. Whataburger is a much-beloved fast food chain down there.
Host: I thought you were going to give me the actual code and statute.
Professor Blocher: No, I say this as a person with roots in Texas, Whataburger is delicious. And a variety of other kind of violent activities. So he's clearly not the person who you might want if you're trying to say, "Hey, the government shouldn't have the ability to disarm certain individuals." And some of the other cases coming up have much more sympathetic plaintiffs, nonviolent felons, that kind of thing.
Host: On the other hand, he might be an ideal plaintiff for those arguing for such a law. He screams, in my mind at least, dangerous. If I were the woman in this particular case, I would also fear for my life and want this guy not to have a gun, firing it off willy-nilly near me.
Professor Blocher: Yeah, I mean, just two things to say about that. In some respects, Rahimi is representative of a slice of the American public which is unfortunately way, way bigger than anybody would want it to be, and that's domestic abusers and particularly armed domestic abusers. And one of the things that comes through only slightly in the opinions from the Supreme Court today is just what the threat is, especially for women when it comes to intimate partner violence and especially when the abuser is armed. Depending on the statistics you look at, this is the leading cause of homicide for women—intimate partners—and most intimate partner homicides involve guns, right? So there's a huge, huge threat here, again, particularly for women like was true for Rahimi's then-girlfriend in this case. And then the second point is just on litigation. I think it's exactly right to say for all the reasons that the gun rights movement did not want Rahimi to go forward, the Department of Justice was thrilled, I'm sure, to have this case as opposed to, for example, a case like the one that's currently pending in the Third Circuit about a person convicted of a felony for having lied on a food stamps application 20 years ago. That person is also prohibited from having a gun. I think it's a lot harder to defend that prohibition than it is Rahimi, who again, as the majority here emphasizes, clearly presents and a judge found presents a credible threat of physical harm to other people in this case.
Host: When you saw that it was written by Roberts, did you essentially know where it was going to go just by seeing who wrote the opinion?
Professor Blocher: You know, it's interesting that the court watchers had sort of divined that it was going to be Roberts, just given that I think he was the one justice who had not yet written an opinion from the November sitting. So, sort of by process of elimination, it was going to be Roberts. And he has not written an opinion in a Second Amendment case before. He's joined them, of course, but he didn't write in Heller, he didn't write in McDonald, he didn't write in Bruen. So there was, you know, a little unsure exactly how he would write and think about the Second Amendment. And I think the majority opinion, in some ways, is very Roberts. It's careful, it's minimalist, it's very much limited to this case. As he says, you know, the history and tradition, common sense, all in agreement here that the government can disarm a person who a judge has found presents a credible threat to someone else. It's not a long opinion; it's about 20 pages. Now to me, that's just—I mean, the common sense alone is pretty close to resolving that case. I mean, I think if you polled people in 1791, or when the Second Amendment was ratified, or 1868, or today, and you asked them, "Is it constitutional under the Second and Fourteenth Amendments to disarm a person who a judge specifically has found presents a credible threat of physical violence to someone else?" I think most people would say yes. I mean, it doesn't require that much, I think, that much work to get there. And he certainly, you know, points to some historical background for that—Shire laws, the Affray laws, we can talk about those. But once it was Roberts, it felt to me pretty clear. And that was from the oral argument as well. I think most of us expected the government to win. I didn't expect 100 pages of opinions. I did not expect as many concurrences as we had. This felt to me like it could be a very easy case where the Court just says, "Hey, history, tradition, common sense, they're all of accord. The government can disarm dangerous people." That's enough to resolve this case.
Host: Well, this was a case that came out of the Fifth Circuit. It overturned, as you mentioned, the Fifth Circuit opinion. We're going to talk separately about another, about the bump stock case where the Court affirmed the Fifth Circuit opinion. What did Roberts say the Fifth Circuit got wrong?
Professor Blocher: Well, this is where I think we get an interesting clarification in Rahimi of the Bruen test. So what happened in the Fifth Circuit was that a panel of judges looked at the historical record as they read it and said this law disarming people subject to domestic violence restraining orders is, in their words, an outlier that the founders never would have accepted. That in 1791, this would not have been constitutional to do. They didn't disarm domestic abusers or people subject to domestic violence restraining orders, which they didn't really have, so therefore it's unconstitutional today. And what critics of that opinion, including I should say myself, said was that the Fifth Circuit has done what Bruen says not to do by looking for a historical twin as opposed to reasoning more broadly by analogy to the laws that did exist in 1791. So, for example, you might say, "Okay, they did not specifically disarm domestic abusers in 1791, at least not by statute, but they did have laws disarming groups they thought to be dangerous." Now, they had a wildly different conception of who was dangerous, and a lot of the laws back then focused on, for example, Black Americans, Native Americans, Loyalists, Catholics—groups that it would be wildly unconstitutional to disarm today. But just for the reasons that we reject those laws, we might also reject their failure to, for example, protect women from intimate partner violence. And so the principle you could take from the historical record is you disarm dangerous people. That's okay. And you change who that label applies to based on evolving understandings of dangerousness. So, the Fifth Circuit, to answer your question, I think, applied a very narrow, sort of wooden version of that historical analogical reasoning. And what the majority said is you need to look for the principles underlying the history, not just the specific examples.
Host: Professor, is that term you used, historical twin, is that now a term of art under Second Amendment scholarship?
Professor Blocher: Yeah, you know, it's one of the interesting things that emerges from Bruen. So again, Justice Thomas is the author in Bruen, and he applies, in my mind, a pretty rigid historical approach there, which does, to me at least, look like he's looking for something pretty close to an exact match, like, you know, a historical match for the current law. But he says that when you're doing historical analogical reasoning, you do not have to find a historical twin, which is one of the reasons the majority here today says, "Look, we're not revisiting Bruen, we're just clarifying what we said there," which is you don't have to have the historical twin, that you can reason at a higher level of generality if you like. Now, interestingly, the one justice who doesn't join the majority here is, language was used against him, Justice Thomas, the author of Bruen, who the majority says essentially is misreading his own opinion or misapplying his own opinion anyway. So, I think to the degree that Rahimi alters the course a little bit, I think it's loosening the sort of bonds of that historical analogical test.
Host: We won't have time to get into it too much, but is Justice Thomas's dissent essentially, "The Fifth Circuit got it right; this is too big of a stretch"?
Professor Blocher: No, I think that's basically it. You know, in fact, some of the language even echoes what you hear in the Fifth Circuit decision, you know, that essentially the government has not a single law to support its position here. He even concludes in the interesting last paragraph of his opinion, he says, and I think this is a little bit, in my mind, a little misleading, he says, "This case is not about whether the government can disarm people who present a threat of physical violence," right? But of course, it is about exactly that. That's what domestic violence restraining orders are for. But what Justice Thomas is saying is, "Look, if Zackey Rahimi did all these things he's alleged to have done, then he can be prosecuted as a criminal and then could be disarmed." But to me, that's just kind of assuming that conclusion, and it's also just, I think, ignoring the whole value of restraining orders. Like, their purpose is to prevent a person from carrying through a threat and not waiting for them to sort of commit a crime. But that line of reasoning is very much in keeping with a concurring opinion in the Fifth Circuit by Judge Ho, who said basically the same thing, you know, "This guy should be subject to criminal law, not to this civil restraining order." So, I think it's absolutely what we're seeing from Justice Thomas. Fifth Circuit got it right, that's why they should be upheld. But again, it's an 8-1 decision. He's writing just for himself on that.
Host: Well, Professor, before we let you go, maybe you read this whole old case. I tried to get through as much as I could before our conversation. What jumped out at you as surprising? You know, what are you preparing for your next article or your next lecture to your students?
Professor Blocher: Well, I'll take a good long night's sleep before I forget what I'm going to write about it because there's going to be a lot. But a few takeaways for me anyway: You know, this is a win for the government. It's the first really major Second Amendment case that the government has prevailed, that is, that the Supreme Court upheld a gun law. So that's notable. I also think, in some respects, it's the easiest possible case. You know, this should not, in my mind, have taken 100 pages to resolve. This is a person whom a judge has found presents a credible threat to another person, like in an individualized hearing of which he had notice and ability to participate, right? So that's about as low-hanging fruit as you can get for a law being tailored to the risk that an individual person presents. And for that very reason, I'm not actually sure how much guidance Rahimi gives for the so many other kinds of restrictions out there that are more broad. Like, for example, federal law prohibits gun possession by people who have been convicted of felonies. That's 18 USC 922(g)(1). That law has been subject to a whole lot of challenges, but those cases don't involve individualized findings of credible threats, right? They're just about, have you been convicted of a qualifying crime? So, I'm not sure Rahimi resolves whether the felon prohibitor is constitutional.
Host: Interesting. Yeah, so it doesn't undermine them, but it may not give them the level of support that perhaps some might read.
Professor Blocher: I think that's right. I think what that means is that the Court is going to have to keep taking sort of a steady diet of Second Amendment cases because I don't think Rahimi sheds a whole lot of light on the felon prohibitor, or on high-capacity magazines, or on undocumented immigrants, or people under indictment, or minors, or for that matter, extreme risk protection orders, also known as red flag laws. A lot of stuff that you and I talk about, Joel, that we might have had some guidance on from Rahimi, but I just don't think we got.
Host: So I'm curious, we talked about this as the government versus Rahimi, but also we've spoken about gun rights advocates or gun rights individuals who support a broader interpretation of gun rights. Did you see any coming out and saying, "You know, we support a really broad Second Amendment, but you can take Rahimi's gun"? Did you see any kind of from that side of the V come out and say, "This isn't a case we particularly care about"?
Professor Blocher: You know, it's really interesting. I could have imagined a world in which this is a case where, say, gun rights advocates would have stood to the side or would have filed briefs in support of neither side to say, "Hey, look, fine to disarm Rahimi, but let's be clear, this is a fundamental constitutional right and you should not abandon the test from Bruen," or whatever. By my count, though, I think nearly every gun rights group, and for that matter, scholar or advocate that I can think of, filed in support of Rahimi and not in support of neither side. Now, many of them did that for reasons other than, you know, the Second Amendment absolutely protects Rahimi. Some of them raised questions about due process, right? Did he have enough of a chance to contest the civil order? Some of them alleged that these civil orders are subject to abuse, and so the Court shouldn't be so quick to sign off on them. You know, my guess is that they will not be mourning too much this as a loss. This is not the representative gun owner, this is not the person who deserves to be or should be the face of the gun rights movement. So I suspect we're not going to hear too much complaining today from, I have not yet at least, from gun rights advocates. But certainly, when the case was argued, many of them had filed at least in support of him, again, for a variety of different reasons.
Host: Professor Joseph Blocher teaches at Duke Law School. He is the co-director of the Duke Center for Firearms Law. Joseph, it's always a pleasure, and I appreciate you fitting me in on such a day.
Professor Blocher: Always a pleasure, Joel. Thanks so much.