United States v. Rahimi: Restraining Orders v. Second Amendment

The case of United States v. Rahimi could rightly be called the case of Restraining Orders v. Second Amendment. The Decision and Dissent (8-1) totals over 100 pages, and little of it is easy to completely understand. It is filled with references to specific excerpts of U.S. law, English law dating back to the 1300s, and previous case law. Without the benefit of understanding each reference, it would be easy to not realize that an excerpt was taken out of context and wrongly follow it to justify a particular opinion. Much is the same of this article. I am going to attempt to condense over 100 pages into an article. I highly recommend you read the Decision and Dissent yourself.

For those looking for quick bullet points, here are the top five points from the decision (according to AI):

• Section 922(g)(8) prohibits individuals subject to a domestic violence restraining order from possessing a firearm.
• To trigger the prohibition, the restraining order must meet certain criteria, including a finding that the accused represents a credible threat to the physical safety of an intimate partner or child.
• Violation of Section 922(g)(8) is a felony punishable by up to 15 years’ imprisonment, and a conviction triggers a permanent prohibition on possessing firearms and ammunition.
• The Court’s decision in this case does not resolve all questions regarding the constitutionality of Section 922(g)(8) in all circumstances.
• The Court emphasizes the importance of considering the original meaning and scope of the Second Amendment, while also recognizing the need to adapt to the present-day context.

For those looking for quick bullet points, here are the top five points from the dissent (according to AI):

• The dissent argues for a strict interpretation of the Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, emphasizing the need for a precise historical match when evaluating the constitutionality of gun regulations.
• The dissent criticizes the majority’s approach of distilling principles from historical evidence, arguing that it allows for too much flexibility and risks undermining common-sense regulations.
• The dissent highlights the evolution of firearms and societal perceptions of domestic violence, suggesting that historical laws may not adequately address the modern-day problem of domestic abuse.
• The dissent raises concerns about the potential limitations on legislative action if the historical approach is strictly adhered to, suggesting that it may impede necessary and effective regulations to ensure safety and security.
• The dissent argues that a rigid adherence to history, particularly history that predates the inclusion of women and people of color as full members of society, restricts constitutional interpretation and hampers democracy.

And… that’s why I do not trust AI. To be fair, those points are all true but certainly not the main points (for me). Not once did AI mention the Second Amendment. Like all programming, the output is biased by the programmers.

The question is whether a restraining order under Section 922(g)(8) runs afoul of the rights guaranteed under the Second Amendment — specifically the right to self-defense. For some, it is as simple as “The right to bear arms shall not be infringed.” While that is a great rallying cry, it is also short-sighted. No, just because prison is a dangerous place, you do not have a Second Amendment right to bring a gun or two from home for ‘self-defense.’

It is long established by the courts, precedence, and decisions such as Heller and McDonald, that the Second Amendment right to self-defense is not absolute or untouchable. (That’s why elections are so important.) It is recognized that some dangerous people and the mentally ill (for example) can, and should, be restricted from possessing or accessing firearms. Neither Heller or McDonald overturned the National Firearms Act of 1934 or Gun Control Act of 1968, meaning Congress does have “some” ability to regulate firearms. At the same time, Heller and McDonald guaranteed the “Right to Bear Arms” by the citizenry as a whole.

However, for a citizen to have his or her right to bear arms restricted, we have (perhaps had under this decision) a right to due process under the Sixth Amendment. That means the right to confront your accuser in court, a speedy trial, legal representation, and protection from being tried for the same crime multiple times. Restraining orders under Section 922(g)(8) seem to be a fly in the ointment.

The laws regarding restraining orders are anything but consistent from state to state. Some states go so far as to allow hearsay in a restraining order hearing. A temporary restraining order (TRO) may be issued without an opportunity for the subject of the restraining order to testify. In fact, it can be issued without their knowledge. They may have no idea until a marshal or sheriff comes knocking and serves the TRO.

A restraining order is a civil proceeding, not criminal. Civil proceedings are typically between individuals, while criminal cases involve a violation of law. A restraining order does not mean the subject of the order has been accused or convicted of ANY crime. Yet, the end result is a suspension of a Constitutional right.

As I said, a restraining order does not mean any crime has been committed. Instead, it is a hedge against a future crime that may be committed. While we all know that a restraining order is just a piece of paper that will not deter a committed person bent on committing a crime, it does allow law enforcement to react quicker in certain situations and side with protecting the concerned party. It is the suspension of a person’s right to self-defense that is the issue though.

I understand where a restraining order against an individual such as Rahimi would be in order. In court, Rahimi had an opportunity to face his accuser (significant other) and contest the accusations against him. He did not. In fact, he consented to the restraining order and the finding that he committed “family violence.” Now, this is not a conviction. He just chose not to oppose the order or fight it in any way. With that, however, the judge determined he was a threat to the girlfriend and her child and issued the restraining order.

Rahimi’s Case

A complete look at the charges against Rahimi, and incidents alleged — that he did not deny in court — easily demonstrates what a POS (in my opinion) this guy was. If convicted, he should not have been jailed, he should have been thrown under the jail. I would have scoffed at the story if it was a Hollywood script.

According to court documents, 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.

Undeterred by this threat, 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.” 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. Based on these findings, the protection order prohibited Rahimi from threatening C. M. or her family for two years or contacting C. M. during that period except to discuss A. R.

To recap, at this point the protection order was issued.

In May, however, Rahimi violated the order by approaching C. M.’s home at night. He also began contacting her through several social media accounts. In November, 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, Rahimi was speeding on a highway near Arlington, Texas, when a truck flashed its lights at him. Rahimi hit the brakes and cut across traffic to chase the truck. Once off the highway, he 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.

Not surprisingly, the police obtained a warrant to search Rahimi’s residence. There they discovered a pistol, rifle, ammunition — and a copy of the restraining order (genius).

At this point he is certainly guilty of violating 18 U. S. C. §922(g)(8), thus he was indicted. However, Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) violated — on its face — his Second Amendment right to keep and bear arms. The case made its way through the courts. Rahimi won in the Fifth Circuit which used its strict understanding of the test mandated in the Bruen decision. The government appealed and SCOTUS agreed to hear the case.

The decision was 8-1 against Rahimi. The lone dissent was from Justice Clarence Thomas. The main takeaway, other than a defeat for the Second Amendment, was a clarification of the Bruen decision to make it easier for the lower courts to determine historical precedent. Essentially, the courts do not have to find an identical twin, just a close cousin.

The Dissent

Reading the Decision, Chief Justice Roberts lays out a well-reasoned sounding case. However, Justice Thomas’ dissent outlines the dangers the decision poses to our Second Amendment rights. Justice Thomas starts rather plainly and directly, “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.

In truth, he says it much better than I can paraphrase, so I’ll quote his Dissent directly. These are the highlights of 25+ pages.

“…as important as §922(g)(8)’s express terms, is what it leaves unsaid. 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. See §§922(g)(1), (9). And, §922(g)(8) does not distinguish contested orders from joint orders — for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order. In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders.”

“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.”

“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?”

“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.” (i.e. a monetary fine)

“It is undisputed that §922(g)(8) targets conduct encompassed by the Second Amendment’s plain text. After all, the statute bans a person subject to a restraining order from possessing or using virtually any firearm or ammunition.”

“A covered individual cannot even possess a firearm in his home for self-defense, “the central component of the [Second Amendment] right itself.”

“The Government’s failure is unsurprising given that §922(g)(8) addresses a societal problem—the risk of inter-personal violence — “that has persisted since the 18th century,” yet was addressed “through [the] materially different means” of surety laws. Surety laws were, in a nutshell, a fine on certain behavior. If a person threatened someone in his community, he was given the choice to either keep the peace or forfeit a sum of money. Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden. The Government has not shown that §922(g)(8)’s more severe approach is consistent with our historical tradition of firearm regulation.”

“The Government points to various English laws from the late 1600s and early 1700s to argue that there is a tradition of restricting the rights of “dangerous” persons. For example, the Militia Act of 1662 authorized local officials to disarm individuals judged “dangerous to the Peace of the Kingdome.”

“At first glance, these laws targeting “dangerous” persons might appear relevant. After all, if the Second Amendment right was historically understood to allow an official to disarm anyone he deemed “dangerous,” it may follow that modern Congresses can do the same. Yet, historical context compels the opposite conclusion. The Second Amendment stems from English resistance against “dangerous” person laws.”

“The sweeping disarmament authority wielded by English officials during the 1600s, including the Militia Act of 1662, prompted the English to enshrine an individual right to keep and bear arms.”

“’[T]he Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents.’” Englishmen, as a result, grew “’to be extremely wary of concentrated military forces run by the state and to be jealous of their arms.’” Following the Glorious Revolution, they “’obtained an assurance… in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed.’” The English Bill of Rights “’has long been understood to be the predecessor to our Second Amendment.’” In fact, our Founders expanded on it and made the Second Amendment even more protective of individual liberty.”

“The Government’s remaining evidence is even further afield. 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). Again, the “’central considerations’” when comparing modern and historical regulations are whether they “’impose a comparable burden’” that is “’comparably justified.’” The Government’s evidence touches on one or none of these considerations.

The Government’s reliance on firearm storage laws is a helpful example. These laws penalized the improper storage of firearms with forfeiture of those weapons. First, these storage laws did not impose a “’comparable burden’” to that of §922(g)(8). Forfeiture still allows a person to keep their other firearms or obtain additional ones. It is in no way equivalent to §922(g)(8)’s complete prohibition on owning or possessing any firearms.”

“The Government’s proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing “’irresponsible’” or “’unfit’” persons from accessing firearms.”

“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. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties (guarantors) 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.

By contrast, §922(g)(8) strips an individual of his Second Amendment right. The statute’s breadth cannot be overstated. For one, §922(g) criminalizes nearly all conduct related to covered firearms and ammunition. Most fundamentally, possession is prohibited, except in the rarest of circumstances.”

“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. And, that revocation is absolute. It makes no difference if the covered individual agrees to a no-contact order, posts a bond, or even moves across the country from his former domestic partner — the bar on exercising the Second Amendment right remains.”

“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.”

“…the only process required before that revocation is a hearing on the underlying court order. §922(g)(8)(A). During that civil hearing — which is not even about §922(g)(8) — a person has fewer constitutional protections compared to a criminal prosecution for affray. Gone are the Sixth Amendment’s panoply of rights, including the rights to confront witnesses and have assistance of counsel, as well as the Fifth Amendment’s protection against double jeopardy.”

“Civil proceedings also do not require proof beyond a reasonable doubt, and some States even set aside the rules of evidence, allowing parties to rely on hearsay.”

“Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of “regulatory blank check” that Bruen warns against, and the American people ratified the Second Amendment to preclude.

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.”

“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. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment.”

“…the question before us is not whether Rahim 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 Framers and ratifying public understood “’that the right to keep and bear arms was essential to the preservation of liberty.’” Yet, in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more. I respectfully dissent.”

Conclusion

Undoubtedly, antigun states such as California, New York, California, and others are plotting in the backrooms and offices ways to again attack the Second Amendment, using the exact loopholes Justice Thomas outlines. Vote wisely.

What’s your take on The U.S. Supreme Court’s decision? Should a person be stripped of their Second Amendment rights simply due to an accusation that leads to a restraining order? Share your answers in the Comment section.