Expert: Bruen test is out of step and unworkable in practice, hopeful SCOTUS will provide guidance on evaluating future firearms restrictions

“The case U.S. v. Rahimi is the first opportunity since New York State Rifle & Pistol Association, Inc. v. Bruen for the U.S. Supreme Court to consider its application to a firearms restriction. I am particularly interested to see if the Supreme Court takes the opportunity to refine or reformulate the Bruen test in a manner that makes it somewhat easier for the federal and state governments to craft sensible firearms restrictions. I am hopeful for the Supreme Court to do so because the Bruen test is out of step with the rest of constitutional law and is unworkable in practice.”

University of Georgia School of Law Smith Professor Hillel Y. Levin is available for further commentary at [email protected].

Additional information regarding U.S. v. Rahimi provided by Levin:

Note: The U.S. Supreme Court is scheduled to hear oral arguments in this case on 11/7/23.

Please describe the case.

Zackey Rahimi was found by a court to have committed domestic violence against his girlfriend. A civil restraining order was issued against him, which, among other things, prohibited him from possessing firearms. After subsequent involvement in several firearms-related incidents, he was found to have violated the civil order, thus subjecting him to a significant term of imprisonment. Based on the Supreme Court’s 2022 opinion in Bruen, the Fifth Circuit Court of Appeals declared it unconstitutional to disarm a person who is subject to a civil domestic violence restraining order.

What are the possible impacts of the case?

Since the Bruen decision, lower courts around the country have grappled with its application to modern circumstances and have struck down many restrictions on firearms. This will be the first time since Bruen that the Supreme Court will have the opportunity to consider its application to a firearms restriction, offering it the opportunity to elaborate on its test, refine it, or reformulate it. Depending on how the Supreme Court rules, lower courts and the federal and state governments may receive further guidance on how to evaluate other firearms restrictions.

What are the primary issues in U.S. v. Rahimi?

The narrow issue in Rahimi is whether, under the Second Amendment, the government can prohibit a person who is subject to a domestic violence restraining order from possessing firearms. More broadly, the case may address how to evaluate government restrictions on firearms possession.

How have the decisions of U.S. v. McGinnis and New York State Rifle & Pistol Association, Inc. v. Bruen impacted U.S. v. Rahimi?

The Fifth Circuit had previously held, in U.S. v. McGinnis, that stripping a person who is subject to such an order was constitutional. However, after the Supreme Court articulated a novel test for restrictions on firearms in Bruen, the Fifth Circuit reversed itself. The two-part Bruen test first asks whether the plain text of the Second Amendment applies to the restricted conduct at issue (in this case, possession of a firearm by a person subject to a civil domestic violence restraining order). If so, the second part of the Bruen test provides that the restriction is only permissible if it is analogous to firearms regulations that were generally in place in the 18th and 19th centuries. On the first question, the Fifth Circuit held that the plain text of the Second Amendment applies to Rahimi and therefore presumptively guarantees him the right to possess firearms. On the second question, the Fifth Circuit found no evidence of restrictions on firearms possessions by persons subject to civil restraining orders related to domestic violence. 

What key arguments do you expect to be made from each side?

• The United States will argue, first, that the protections of the Second Amendment do not apply to people who are not law-abiding citizens and that the nation has a long history of disarming such persons. It will further argue that people who have been held to have committed domestic violence may be disarmed even if the framers of the Constitution did not do so. Here, two points are especially notable: (1) domestic violence was not necessarily a crime or even unlawful in the 18th and early 19th centuries, but (2) we now know that people who commit domestic violence are disproportionately likely to commit firearms-related violence.
• Rahimi will argue that only those who have beenconvicted of a crime, rather than those who have been found to have committed domestic violence and subject to a civil restraining order, may be disarmed under the text of the Second Amendment and the country’s history and traditions. 

Potential ruling/outcomes.

I expect that the Supreme Court, in a decision supported by at least five justices (the three liberals, together with Justices Roberts and Kavanaugh), will overturn the Fifth Circuit’s decision. I will be particularly interested to see whether the decision is limited to the narrow facts of the case or whether the Supreme Court takes the opportunity to refine or reformulate the Bruen test in a manner that makes it somewhat easier for the federal and state governments to craft sensible firearms restrictions. I am hopeful for the latter because the Bruen test is out of step with the rest of constitutional law and is unworkable in practice.