The Second Amendment and Orders of Protection: The Supreme Court’s Curious Decision

Legal concepts frequently get lost, forgotten or discarded by politics. When it comes to the Second Amendment, it is easy for politics to distort the Constitutional issues and for partisans to either misunderstand or misstate the significance of a Second Amendment case.  The Supreme Court’s latest Second Amendment decision, United States v. Rahimi, is a good example of a narrow decision that is easily misunderstood.  In Rahimi, the Supreme Court held that a federal law making it unlawful for people subject to certain orders of protection to possess firearms or ammunition did not violate the Second Amendment.

Under federal law (18 U.S.C. Section 922(g)(8)) (the “Federal Law”), it is unlawful for a person subject to certain orders of protection to possess a firearm or ammunition while that order of protection is in place.  Not every domestic order of protection triggers a ban on the possession of firearms under the Federal Law.  For the firearm prohibition to kick in, a court must have first made a finding that “the defendant ‘represents a credible threat to the physical safety’ of his intimate partner . . .” (emphasis added).  An individual who possesses a firearm or ammunition after a credible threat determination is made and an order of protection is entered faces a prison sentence of up to 15 years under the Federal Law.

There was no dispute that Zackey Rahimi posed a “credible threat” to his girlfriend and that she had grounds for obtaining an order of protection.  Rahimi’s girlfriend testified that Rahimi had assaulted her a number of times.  In one assault, Rahimi “grabbed her wrist [when she wanted to leave], dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard.”  A bystander saw this and Rahimi responded by getting “a gun from under the passenger seat.” Rahimi’s girlfriend used the distraction to run away from the scene.  As she was running away, Rahimi’s girlfriend heard a shot, but it was not clear if Rahimi was trying to shoot his girlfriend or the bystander.  Rahimi later called his girlfriend and threatened to shoot her “if she reported the incident.”  Despite the threat, Rahimi’s girlfriend obtained an order of protection, and while “Rahimi had an opportunity to contest [his girlfriend’s] testimony, he did not do so.”

After the order of protection was entered, Rahimi was served with a copy.  At this point, Rahimi needed to surrender the possession of any firearms and ammunition he possessed under the Federal Law.  Rahimi did not do this.  Instead, Rahimi threatened a different woman with a firearm, which resulted in his being charged with aggravated assault.  After Rahimi was arrested, he was identified as a suspect in “at least five additional shootings.”  At some point, the police obtained a warrant and searched Rahimi’s home, where they found a handgun, a rifle, ammunition and the protective order.

The Supreme Court’s statement of the facts paints a picture of a violent individual who was willing to use firearms and physical force to threaten people.  The acid test for many constitutional rights, however, is whether they protect the constitutional rights of people we don’t like or even people who we see as a threat.  For example, there are many constitutional rights that protect people who are, in fact, dangerous and who will commit violent crimes if they are not incarcerated.  The Fourth Amendment, Fifth Amendment and Sixth Amendment limit the ability of states and the federal government to prosecute people accused of crimes, including very serious crimes.  Constitutional rights are designed to impose limits on the power of the government to do certain things precisely because legislators will, on occasion, try to strip people of personal liberties in the name of public safety.  The destruction of civil liberties in the name of public safety, however, comes at a very high cost that is frequently ignored because these costs are not always immediately apparent.

When courts try to balance the costs and benefits of a constitutional right, they threaten the rule of law and the misunderstood role of judges in a constitutional system of government.  As the Supreme Court has explained, the cost-benefit analysis and policy decisions underlying the rights contained in the Bill of Rights were made by the framers of the Constitution and the ratification process.  If courts are allowed to decide policy issues each time a difficult case comes up, we do not have constitutional rights in any meaningful sense.  At that point, constitutional rights mean nothing more than the policy preferences of judges.

In Rahimi, the Supreme Court did not ask whether it was good or bad policy to let Rahimi possess firearms or ammunition after an order of protection was entered against him.  Instead, the Supreme Court asked whether the Second Amendment prohibited the federal government from stripping anyone of their firearms because a court found the individual posed a “credible threat” of physical violence to another person.  To answer this question, the Supreme Court looked to whether there existed a historical tradition when the Second Amendment was enacted that supported the disarming of dangerous individuals.  The Supreme Court found such a historical tradition in two sets of laws.  The first set of laws were “surety” laws that required certain individuals who were considered a threat to someone else to post a bond for their good behavior, if they wanted to possess or carry a firearm.  Once the individual posted the bond, he or she could continue to possess and carry firearms.  The second set of laws (laws against affray) generally prohibited people from carrying weapons in a manner designed to terrify other citizens.  The affray laws were criminal statutes that allowed for the arrest of people who caused the prohibited type of affray.

Neither the surety laws nor the laws against affrays are identical to the federal law that prohibits the possession of firearms or ammunition by someone whom a court has determined is a credible threat to someone else.  The surety laws did not, for example, prohibit someone from possessing or carrying a firearm once they posted the required bond.  The federal law at issue in Rahimi, by contrast, imposed an absolute prohibition on possession of any firearm, which is significantly broader than any of the founding era surety laws.

The laws against affray criminalized certain types of conduct.  The affray laws, however, did not impose a temporary ban on the possession of firearms.  Instead, a violation of a law against affrays was punished by a fine or by imprisonment.  While a conviction of an affray law could result in losing access to firearms while the individual was incarcerated, these laws did not call for the seizure of the defendant’s firearms from their home.

Under the Second Amendment cases such as Heller and Bruen, the Supreme Court did not have to find an exact historical match.  The Supreme Court explained that “[t]aken 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.”  While the surety and affray laws were different than the federal law at issue in Rahimi, the Supreme Court determined that the “how and why” of the surety and affray laws were sufficiently close to the federal law to make them a relevant historical tradition for purposes of the Second Amendment.

The decision in Rahimi shows that the Supreme Court will look beyond the four corners of a founding era law when conducting a Second Amendment analysis.  While this approach has its merits, it also has drawbacks.  The Supreme Court, for instance, did not explain how to determine how close a fit needed to exist between the modern law being challenged and the historical precedents.  At one level of abstraction, someone could argue that the surety laws and laws against affray support any law that seeks to protect people from violent crime.  This argument would render the Second Amendment meaningless.  A fair reading of the Supreme Court’s decision does not support such an open-ended use of the historical tradition test.  The Supreme Court, however, is going to have to explain, through future cases, how much extrapolation from the historical tradition is permissible.  As the Supreme Court noted, Second Amendment jurisprudence is in its very early stages and still needs considerable development.

What the Supreme Court did stress was the limited nature of its decision.  First, the Supreme Court pointed out that the federal prohibition on possessing a firearm is of limited duration.  Orders of protection oftentimes are only in effect for two years. While this fact does not have a direct connection to the historical tradition test, it has some connection with the surety laws that also operated for limited periods of time.

Second, the Supreme Court stressed that the federal law at issue in Rahimi requires a judicial finding that the subject individual posed a “credible threat” to another individual.  While the Supreme Court did not impose a special due-process limitation in Rahimi for all Second Amendment cases, it did find that the due process protections required by federal law were important in connecting federal law to the historical tradition identified by the Supreme Court.

Finally, the Supreme Court stressed that Rahimi brought what is called a facial challenge to the federal law prohibiting the possession of firearms by an individual subject to certain orders of protection.  Under a facial challenge, Rahimi had to show that “no set of circumstances exists under which [the federal law] would be valid.”  The government’s burden was limited to showing that the prohibition “is constitutional in some of its applications.”  Put differently, Rahimi had to show that no historical tradition could support the constitutionality of the federal law regardless of how egregious the facts underlying any order of protection.  The Supreme Court held that Rahimi could not meet this very high burden.

As a practical matter, this means that other defendants may have the ability to bring what are called “as applied” challenges to a prosecution under federal law for possessing a firearm when subject to an order of protection.  For example, courts will have to address what the phrase “credible threat” means with the Second Amendment as a backdrop.  Courts may have to limit what a “credible threat” means in order to avoid a constitutional issue under the Second Amendment.  Courts may also have to address what due process protections an individual must have in the underlying order of protection proceeding.

A critical issue going forward is how much attenuation the Supreme Court will allow between laws in place when the Second Amendment was enacted and modern gun control laws.  This is the issue Justice Thomas raised in his dissent from the majority opinion in Rahimi.  While many people will agree with Justice Thomas that the majority decision stretched the historical tradition too far, it is too early in the development of Second Amendment law to view the Supreme Court’s decision in Rahimi as anything other than a cautious step is what will be a long process.

The evolving landscape of Second Amendment jurisprudence underscores the complexity and nuance associated with gun rights in America.  If you believe that your right to bear arms has been unjustly restricted or if you require legal assistance related to gun control laws, we invite you to reach out to The Law Offices of George M. Sanders P.C.  We are committed to defending your constitutional rights and providing the representation you deserve.  Contact us today to schedule a consultation and discuss your case in detail.