UNITED STATES OF AMERICA, Plaintiff—Appellee, versus ZACKEY RAHIMI, Defendant—Appellant.
No. 21-11001
United States Court of Appeals for the Fifth Circuit
February 2, 2023
Before Jones, Ho, and Wilson, Circuit Judges.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:21-CR-83-1. FILED February 2, 2023. Lyle W. Cayce, Clerk.
The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether
Zackey Rahimi levies a facial challenge to
I.
Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.1 On December 1, after selling narcotics to an individual, he fired multiple shots into that individual‘s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver‘s car. On December 22, Rahimi shot at a constable‘s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend‘s credit card was declined at a Whataburger restaurant.
Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. Officers executed the warrant and found a rifle and a pistol. Rahimi admitted that he possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after Rahimi‘s alleged assault of his ex-girlfriend. The protective order restrained
A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of
It shall be unlawful for any person[] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .
Rahimi moved to dismiss the indictment on the ground that
II.
Under the rule of orderliness, one panel of the Fifth Circuit “‘may not overturn another panel‘s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.‘” In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021) (quoting Jacobs v. Nat‘l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008)). The Supreme Court need not expressly overrule our precedent. “Rather, a latter panel must simply determine that a former panel‘s decision has fallen unequivocally out of step with some intervening change in the law.” Id. “One situation in which this may naturally occur is where an intervening Supreme Court decision fundamentally changes the focus of the relevant analysis.” Id. (internal quotation marks and alterations omitted). That is the case here, as the Government concedes.
In Emerson, we held that the Second Amendment guarantees an individual right to keep and bear arms—the first circuit expressly to do so.
After D.C. v. Heller, 554 U.S. 570 (2008), courts coalesced around a similar “two-step inquiry for analyzing laws that might impact the Second Amendment.” McGinnis, 956 F.3d at 753 (internal quotation marks omitted). First, we “ask[ed] whether the conduct at issue [fell] within the scope of the Second Amendment right.” Id. at 754 (internal quotation marks omitted). If the conduct fell outside the scope of the Second Amendment right, then the challenged law was constitutional. Id. But if the conduct fell within the scope of the right, then we proceeded to the second step of the analysis, which applied either intermediate or strict scrutiny. Id. at 754, 757 (expressly applying means-end scrutiny). In McGinnis, this court upheld
Enter Bruen. Expounding on Heller, the Supreme Court held that “[w]hen the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2129–30. In that context, the Government bears the burden of “justify[ing] its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 2130. Put another way, “the [G]overnment must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127. In the course of its explication, the Court expressly repudiated the circuit courts’ means-end scrutiny—the second step
III.
Our review of Rahimi‘s facial challenge to
A.
According to the Government, Heller and Bruen add a gloss on the Second Amendment that restricts its applicability to only “law-abiding, responsible citizens,” Heller, 554 U.S. at 635, and “ordinary, law-abiding citizens,” Bruen, 142 S. Ct. at 2122. Because Rahimi is neither responsible nor law-abiding, as evidenced by his conduct and by the domestic violence restraining order issued against him, he falls outside the ambit of the Second
There is some debate on this issue. Compare Kanter v. Barr, 919 F.3d 437, 451–53 (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S. Ct. 2111, with Binderup v. Att‘y Gen. U.S., 836 F.3d 336, 357 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments). As summarized by now-Justice Barrett, “one [approach] uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature‘s power to take it away.” Kanter, 919 F.3d at 452 (Barrett, J., dissenting). The Government‘s argument that Rahimi falls outside the community covered by the Second Amendment rests on the first approach. But it runs headlong into Heller and Bruen, which we read to espouse the second one.
Unpacking the issue, the Government‘s argument fails because (1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it inexplicably treats Second Amendment rights differently than other individually held rights, and (3) it has no limiting principles. We briefly examine each deficiency.
The Second Amendment provides, simply enough:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
To be sure, as the Government argues, Heller and Bruen also refer to “law-abiding, responsible citizens” in discussing the amendment‘s reach (Bruen adds “ordinary, law-abiding citizens“). But read in context, the Court‘s phrasing does not add an implied gloss that constricts the Second Amendment‘s reach. Heller simply uses the phrase “law-abiding, responsible citizens” as shorthand in explaining that its holding (that the amendment codifies an individual right to keep and bear arms) should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” Id. at 626–27; see also id. at 627 n.26 (“We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.“). In other words, Heller‘s reference to “law-abiding, responsible” citizens meant to exclude from the Court‘s discussion groups that have historically been stripped of their Second Amendment rights. Bruen‘s reference to “ordinary, law-abiding” citizens is no different. See 142 S. Ct. at 2134.
The Government‘s reading of Heller and Bruen also turns the typical way of conceptualizing constitutional rights on its head. “[A] person could be in one day and out the next: the moment he was convicted of a violent crime or suffered the onset of mental illness, his rights would be stripped as a self-executing consequence of his new status.” Kanter, 919 F.3d at 452
Perhaps most importantly, the Government‘s proffered interpretation lacks any true limiting principle. Under the Government‘s reading, Congress could remove “unordinary” or “irresponsible” or “non-law-abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment‘s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581. Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment‘s guarantees, all other things equal.
B.
Which brings us to the question of whether Rahimi‘s right to keep and bear arms may be constitutionally restricted by operation of
Bruen instructs how to proceed. The plaintiffs there levied a facial challenge to New York‘s public carry licensing regime. 142 S. Ct. at 2122. To evaluate the challenged law, the Supreme Court employed a historical analysis, aimed at “assess[ing] whether modern firearms regulations are consistent with the Second Amendment‘s text and historical understanding.” Id. at 2131. Construing Heller, the Court flatly rejected any means-end scrutiny as part of this analysis, id. at 2129, such that if a statute is inconsistent with the Second Amendment‘s text and historical understanding, then it falls under any circumstances. Cf. Salerno, 481 U.S. at 745; Freedom Path, Inc. v. Internal Revenue Serv., 913 F.3d 503, 508 (5th Cir. 2019) (“A facial challenge to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual.” (cleaned up)).
Bruen articulated two analytical steps: First, courts must determine whether “the Second Amendment‘s plain text covers an individual‘s conduct[.]” 142 S. Ct. at 2129–30. If so, then the “Constitution presumptively protects that conduct,” and the Government “must justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 2130. “Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s unqualified command.” Id. (internal quotation marks omitted).
To carry its burden, the Government must point to “historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.” Id. at 2131–32 (internal quotation marks
The Government need not identify a “historical twin“; rather, a “well-established and representative historical analogue” suffices. Id. at 2133. The Supreme Court distilled two metrics for courts to compare the Government‘s proffered analogues against the challenged law: how the challenged law burdens the right to armed self-defense, and why the law burdens that right. Id. (citing McDonald v. City of Chicago, Ill., 561 U.S. 742, 767 (2010) and Heller, 544 U.S. at 599). “[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are central considerations when engaging in an analogical inquiry.” Id. (internal quotation marks and emphasis omitted).
As to the degree of similarity required, “analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check.” Id. “[C]ourts should not uphold every modern law that remotely resembles a historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted.” Id. (internal quotation marks, alterations, and citations omitted). On the other hand, “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id. The core question is whether the challenged law and proffered analogue are “relevantly similar.” Id. at 2132.
When the challenged regulation addresses a “general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Id. at 2131. Moreover, “if earlier generations addressed the societal problem, but
C.
Rahimi‘s possession of a pistol and a rifle easily falls within the purview of the Second Amendment. The amendment grants him the right “to keep” firearms, and “possession” is included within the meaning of “keep.” See id. at 2134–35. And it is undisputed that the types of firearms that Rahimi possessed are “in common use,” such that they fall within the scope of the amendment. See id. at 2143 (“[T]he Second Amendment protects only the carrying of weapons that are those ‘in common use at the time,’ as opposed to those that ‘are highly unusual in society at large.‘“) (quoting Heller, 554 U.S. at 627)). Thus, Bruen‘s first step is met, and the Second Amendment presumptively protects Rahimi‘s right to keep the weapons officers discovered in his home. See id. at 2126.
But Rahimi, like any other citizen, may have forfeited his Second Amendment rights if his conduct ran afoul of a “lawful regulatory measure[]” “prohibiting . . . the possession of firearms,” Heller, 554 U.S. at 626–27 & 627 n.26, that is consistent with “the historical tradition that delimits the outer bounds of the right to keep and bear arms,” Bruen, 142 S. Ct. at 2127. The question turns on whether
To reiterate, the statute makes it unlawful
for any person[] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .
These characteristics crystallize “how” and “why”
To sustain
The Government offers potential historical analogues to
1.
The Government relies on laws of varying antiquity as evidence of its “dangerousness” analogues. We sketch these chronologically, mindful that greater weight attaches to laws nearer in time to the Second Amendment‘s ratification.
Under the English Militia Act of 1662, officers of the Crown could “seize all arms in the custody or possession of any person” whom they “judge[d] dangerous to the Peace of the Kingdom.” 13 & 14 Car. 2, c.3, § 13 (1662). Citing scholarship, the Government thus posits that “by the time of American independence, England had established a well-practiced tradition
But the Militia Act‘s provenance demonstrates that it is not a forerunner of our Nation‘s historical tradition of firearm regulation. Under Charles I (who reigned 1625–1649), the Crown and Parliament contested for control of the militia. Nelson Lund, The Past and Future of the Individual‘s Right to Arms, 31 GA. L. REV. 1, 8 (1996). After the resulting civil war and Oliver Cromwell‘s interregnum, the monarchy was restored in 1660 when Charles II took the throne. Charles II began using the militia to disarm his political opponents. Id. (citing J. MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994) 35–38 (1994). The Militia Act of 1662 facilitated this disarmament, which escalated under the Catholic James II once he took the throne in 1685. Id.; see Heller, 554 U.S. at 593 (noting that the disarmaments “caused Englishmen . . . to be jealous of their arms“). After the Glorious Revolution, which enthroned Protestants William and Mary, the Declaration of Rights, codified as the 1689 English Bill of Rights, qualified the Militia Act by guaranteeing “[t]hat the subjects which are Protestants may have arms for their defence suitable to their Conditions and as allowed by Law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. “This right,” which restricted the Militia Act‘s reach in order to prevent the kind of politically motivated disarmaments pursued by Charles II and James II, “has long been understood to be the predecessor to our Second Amendment.” Heller, 554 U.S. at 593. This understanding, and the history behind it, defeats any utility of the Militia Act of 1662 as a historical analogue for
The Government next points to laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including
Despite some facial similarities in how these “dangerousness” laws worked—like
Finally, the Government offers two proposals that emerged in state ratification conventions considering the proposed Constitution. A minority of Pennsylvania‘s convention authored a report in which they contended that citizens have a right to bear arms “unless for crimes committed, or real danger of public injury.” 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 662, 665 (1971) (emphasis added). And at the Massachusetts convention, Samuel Adams proposed a qualifier to the
But these proposed amendments are not reflective of the Nation‘s early understanding of the scope of the Second Amendment right. While they were influential proposals, see Heller, 554 U.S. at 604, neither became part of the Second Amendment as ratified. Thus, the proposals might somewhat illuminate the scope of firearm rights at the time of ratification, but they cannot counter the Second Amendment‘s text, or serve as an analogue for
2.
The Government also relies on the ancient criminal offense of “going armed to terrify the King‘s subjects.” Bruen, 142 S. Ct. at 2141 (alteration and emphasis omitted). This common law offense persisted in America and was in some cases codified. Id. at 2144. The Government offers four exemplars codified in the Massachusetts Bay Colony, the state of Virginia, and the colonies of New Hampshire and North Carolina.
The Massachusetts law provided “[t]hat every justice of the peace . . . may cause to be staid and arrested all affrayers, rioters, disturbers or breakers of the peace, and such as shall ride, or go armed offensively . . . and upon view of such justice or justices, confession of the party or other legal conviction of any such offence, shall commit the offender to prison . . . and seize and take away his armor or weapons . . . .” 1 Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, 52–53 (1869) (1692 statute) (cleaned up). Similarly, the New Hampshire statute authorized justices of the peace “upon view of such justice, confession of the party, or legal proof of any such offense . . . [to] cause the [offender‘s] arms
These proffered analogues fall short for several reasons. An overarching one is that it is dubious these “going armed” laws are reflective of our Nation‘s historical tradition of firearm regulation, at least as to forfeiture of firearms. See Bruen, 142 S. Ct. at 2142 (“[W]e doubt that three colonial regulations could suffice to show a tradition of public carry regulation.“). North Carolina‘s law did not provide for forfeiture, so it quickly falls out of the mix. And fairly early on, Massachusetts and Virginia dropped forfeiture as a penalty, going the way of North Carolina and thereby undercutting the Government‘s reliance on those laws. Indeed, Massachusetts amended its law to remove the forfeiture provision in 1795,
And on substance, the early “going armed” laws that led to weapons forfeiture are not relevantly similar to
3.
Lastly, the Government points to historical surety laws. At common law, an individual who could show that he had “just cause to fear” that another would injure him or destroy his property could “demand surety of
The surety laws come closer to being “relevantly similar” to
Aspects of how the surety laws worked resemble certain of the mechanics of
IV.
Doubtless,
REVERSED; CONVICTION VACATED.
The right to keep and bear arms has long been recognized as a fundamental civil right. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the “civil-rights Amendments“); Konigsberg v. State Bar of Cal., 366 U.S. 36, 49–50 n.10 (1961). Blackstone saw it as essential to “‘the natural right‘” of Englishmen to “‘self-preservation and defence.” District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008) (quoting 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 139–40 (1765)).
But the Second Amendment has too often been denigrated as “a second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010). In response, the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment. See N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our court today dutifully follows the framework recently set forth in N.Y. State Rifle. It recognizes the absence of relevant historical analogues required to support the Government‘s position in this case. I am pleased to concur.
I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another.
Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms.1
So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Pre-trial detention is expressly contemplated by the Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a significant role in protecting innocent citizens against violence. See, e.g., United States v. Salerno, 481 U.S. 739, 755 (1987) (permitting “the detention prior to trial of arrestees charged with serious felonies who . . . pose a threat to the safety of individuals or to the community“).
Our laws also contemplate the incarceration of those who criminally threaten, but have not (yet) committed, violence. After all, to the victim, such actions are not only life-threatening—they‘re life-altering. See, e.g., United States v. Ackell, 907 F.3d 67 (1st Cir. 2018) (upholding criminal stalking law); United States v. Gonzalez, 905 F.3d 165 (3rd Cir. 2018) (same); United States v. Osinger, 753 F.3d 939 (9th Cir. 2014) (same); United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012) (same); see also People v. Counterman, 497 P.3d 1039 (Colo. Ct. App. 2021) (same), cert. granted, _ U.S. _ (2023).
In sum, our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision. I concur.