UNITED STATES OF AMERICA, Plaintiff—Appellee, versus ZACKEY RAHIMI, Defendant—Appellant.
No. 21-11001
United States Court of Appeals for the Fifth Circuit
March 2, 2023
61 F.4th 443
Before JONES, HO, and WILSON, Circuit Judges.
Lyle W. Cayce, Clerk
Our prior panel opinion, United States v. Rahimi, 59 F.4th 163 (5th Cir. 2023), is WITHDRAWN and the following opinion is SUBSTITUTED therefor:
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
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 Tarrant County state district court after Rahimi‘s alleged assault of his ex-girlfriend. The protective order prohibited Rahimi from, inter alia, “[c]ommitting family violence,” “[g]oing to or within 200 yards of the residence or place of employment” of his ex-girlfriend, and “[e]ngaging in conduct . . . including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” either his ex-girlfriend or a member of her family or household. The order also expressly prohibited Rahimi from possessing a firearm.2
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
On appeal, Rahimi renewed his constitutional challenge to
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. 270 F.3d at 260. But we also concluded that
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 embodied in Emerson and applied in McGinnis. Id. at 2128-30. To the extent that the Court did not overtly overrule Emerson and McGinnis—it did not cite those cases but discussed other circuits’ similar precedent—Bruen clearly “fundamentally change[d]” our analysis of laws that implicate the Second Amendment, Bonvillian Marine, 19 F.4th at 792, rendering our prior precedent obsolete.
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 Amendment. Therefore, argues the Government,
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 scope (Bruen adds “ordinary, law-abiding citizens“). And there is some debate over the extent to which the Court‘s “law-abiding” qualifier constricts the Second Amendment‘s reach. 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., 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
That reading, in turn, leads us to conclude that, in context, Heller simply uses “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 . . . .” 554 U.S. at 626-27; accord Range v. Attorney Gen., 53 F.4th 262, 266 (3d Cir. 2022) (upholding
From the record before us, Rahimi did not fall into any such group at the time he was charged with violating
Indeed, the upshot of the Government‘s argument is that the Second Amendment right can be readily divested, such that “a person could be in one day and out the next: . . . his rights would be stripped as a self-executing consequence of his new status.” Kanter, 919 F.3d at 452 (Barrett, J., dissenting). But this turns the typical way of conceptualizing constitutional rights on its head. And the Government‘s argument reads the Supreme Court‘s “law-abiding” gloss so expansively that it risks swallowing the text of the amendment. Cf. Bruen, 142 S. Ct. at 2156 (“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.‘“) (quoting McDonald, 561 U.S. at 780)).
Further, the Government‘s proffered interpretation of “law-abiding” admits to no 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 among “the people” 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
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 omitted). “[W]e are not obliged to sift the historical materials for evidence to sustain [
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, 561 U.S. at 767, 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 did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.” Id.
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
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 of disarming dangerous persons—violent persons and disaffected persons perceived as threatening to the crown.” Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Firearms, 20 Wyo. L. Rev. 249, 261 (2020).
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 those unwilling to take an oath of allegiance, slaves, and Native Americans. See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 LAW & HIST. REV.
But we question at a threshold level whether colonial and state laws disarming categories of “disloyal” or “unacceptable” people present tenable analogues to
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 Second Amendment that limited the scope of the right to “peaceable citizens.” Id. at 681.
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
These proffered analogues fall short for several reasons. An overarching one is that it is doubtful 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, just four years after the ratification of the Second Amendment. 2 Laws of the Commonwealth of Massachusetts, from November 28, 1780 to February 28, 1807, 653 (1807) (statute enacted Jan. 29, 1795). Virginia had done so by 1847, shortly before the Commonwealth re-codified its laws in 1849. See Code of Virginia: With the Declaration of Independence and Constitution of the United States and the Declaration of Rights and Constitution of Virginia, 756 (1849).8 It is unclear how long New Hampshire‘s “going armed” law preserved its forfeiture provision, but assuming arguendo it persisted longer
than the others, one outlier is not enough “to show a tradition of public carry regulation.” Bruen, 142 S. Ct. at 2142.
And on substance, the early “going armed” laws that led to weapons forfeiture are not relevantly similar to
Moreover, the “going armed” laws, like the “dangerousness” laws discussed above, appear to have been aimed at curbing terroristic or riotous behavior, i.e., disarming those who had been adjudicated to be a threat to society generally, rather than to identified individuals. And
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 peace against such person.” 4 William Blackstone, Commentaries on the Laws of England 252 (1769). The surety “was intended merely for prevention, without any crime actually committed by the party; but arising only from probable suspicion, that some crime [wa]s intended or likely to happen.” Id. at 249. If the party of whom surety was demanded refused to post surety, he would be forbidden from carrying a weapon in public absent special need. See Bruen, 142 S. Ct. at 2148-49 (discussing operation of historical surety laws). Many jurisdictions codified this tradition, either before ratification of the Bill of Rights or in early decades thereafter.9
The surety laws come closer to being “relevantly similar” to
Put simply, the why behind historical surety laws analogously aligns with that underlying
Aspects of how the surety laws worked resemble certain of the mechanics of
laws did not impose “a comparable burden on the right of armed self-defense,” id. at 2133, as
* * *
The Government fails to demonstrate that
IV.
Doubtless,
REVERSED; CONVICTION VACATED.
James C. Ho, Circuit Judge, concurring:
The right to keep and bear arms has long been recognized as a fundamental civil right. Blackstone saw it as an essential component of “‘the natural right‘” 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)). And the Supreme Court has repeatedly analogized the Second Amendment to other constitutional rights guaranteed to every American. 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) (comparing “the commands of the First Amendment” to “the equally unqualified command of the Second Amendment“); N.Y. State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111, 2126, 2130 (2022) (quoting Konigsberg).
But lower courts have routinely ignored these principles, treating the Second Amendment as “a second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion). So the Supreme Court has now commanded lower courts to be more forceful guardians of the right to keep and bear arms, by establishing a new framework for lower courts to apply under the Second Amendment.
“When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at 2129-30. “The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 2130. “[T]his historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm
regulation requires a determination of whether the two regulations are ‘relevantly similar.‘” Id. at 2132. This framework “is neither a regulatory straightjacket nor a regulatory blank check.” Id. at 2133. It requires the government to “identify a well-established and representative historical analogue, not a historical twin.” Id.
Our court‘s decision today dutifully applies Bruen, and I join it in full. I write separately to explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent
I.
“[T]he right to keep and bear arms . . . has controversial public safety implications.” Bruen, 142 S. Ct. at 2126 n.3 (quotations omitted). But it‘s hardly “the only constitutional right” that does. Id. (quotations omitted, emphasis added). To the contrary, “[a]ll of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.” McDonald, 561 U.S. at 783 (plurality opinion).
So any legal framework that involves any of these constitutional provisions can have significant and controversial public safety consequences. A framework that under-protects a right unduly deprives citizens of liberty. But a framework that over-protects a right unduly deprives citizens of competing interests like public safety.
Take, for example, the exclusionary rule. See Mapp v. Ohio, 367 U.S. 643 (1961). Since its inception, the rule has been sharply criticized for over-protecting the accused and releasing dangerous criminals into our neighborhoods. It‘s often said that nothing in the Constitution requires the criminal to “go free because the constable has blundered.” Herring v. United
States, 555 U.S. 135, 148 (2009) (quoting People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)). “The exclusionary rule generates substantial social costs” by “setting the guilty free and the dangerous at large.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (cleaned up).
The same can be said about Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court has “repeatedly referred to the Miranda warnings as ‘prophylactic’ and ‘not themselves rights protected by the Constitution.‘” Dickerson v. United States, 530 U.S. 428, 437-38 (2000) (citations omitted). What‘s more, “[i]n some unknown number of cases the Court‘s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” Miranda, 384 U.S. at 542 (White, J., dissenting).
So it‘s easy to see why decisions like Mapp and Miranda have been criticized for over-protecting constitutional rights and harming public safety.
But there‘s a big difference between the first criticism and the second, at least as far as the judiciary is concerned. It‘s our duty as judges to interpret the Constitution based on the text and original understanding of the relevant provision—not on public policy considerations, or worse, fear of public opprobrium or criticism from the political branches. See, e.g., McDonald, 561 U.S. at 783 (plurality opinion) (finding “no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications“); Dobbs v. Jackson Women‘s Health Org., 142 S. Ct. 2228, 2278 (2022) (“[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public‘s reaction to our work.“); Mance v. Sessions, 896 F.3d 390, 405 (5th Cir. 2018) (Ho, J., dissenting from denial of rehearing en banc) (“Constitutional rights must not give way to hoplophobia.“).
And that‘s precisely the problem here: Members of the Supreme Court have
Bruen calls on us to examine our Nation‘s history and traditions to determine the meaning and scope of the Second Amendment. It‘s hardly the first time that the Supreme Court has looked to history and tradition to interpret constitutional provisions.2 And it surely won‘t be the last.
present“); Timbs v. Indiana, 139 S. Ct. 682, 687-89 (2019) (observing that “[t]he Excessive Fines Clause traces its venerable lineage back to at least 1215” and surveying authorities from English history and colonial practice).
II.
Those who commit violence, including domestic violence, shouldn‘t just be disarmed—they should be detained, prosecuted, convicted, and incarcerated. And that‘s exactly why we have a criminal justice system—to punish criminals and disable them from engaging in further crimes.
The Constitution presumes the existence of a criminal justice system. See, e.g.,
Arrest and incarceration naturally entail the loss of a wide range of liberties—including the loss of access to weapons. See, e.g., Chimel v. California, 395 U.S. 752, 762-63 (1969) (“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.“); State v. Buzzard, 4 Ark. 18, 21 (1842) (Ringo, C.J.) (“Persons accused of crime, upon their arrest, have constantly been divested of their arms, without the legality of the act having ever been questioned.“).
The Supreme Court has also made clear that our Nation‘s history and traditions include “longstanding prohibitions on the possession of firearms
by felons“—and that such measures are “presumptively lawful.” Heller, 554 U.S. at 626 & n.26. See also McDonald, 561 U.S. at 786 (plurality opinion) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons,‘” and “[w]e repeat those assurances here. . . . [I]ncorporation does not imperil every law regulating firearms.“). So the government can presumably disarm dangerous convicted felons, whether they‘re incarcerated or not, without violating the Second Amendment.
The Second Amendment is not “a second-class right.” Bruen, 142 S. Ct. at 2156. It is not “subject to an entirely different body of rules than the other Bill of Rights guarantees.” Id. That principle guides us here: The government can impose various restrictions on the rights of dangerous convicted felons, consistent with our Nation‘s history and traditions—and that includes the right to keep and bear arms.
III.
The power to incarcerate violent criminals is not just constitutionally permissible—it‘s imperative to protecting victims. After all, anyone who‘s willing to break the law when it comes to domestic violence is presumably willing to break the law when it comes to guns as well. The only way to protect the victim may be to detain as well as disarm the violent criminal.
For example, the government can detain and disarm, not just after conviction, but also before trial. Pre-trial detention is presumed by the Excessive Bail Clause and the Speedy Trial Clause. And it plays a significant role in protecting citizens from violence, including domestic 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“).
In addition, the government can detain and disarm, based not just on acts of violence, but criminal threats of violence as well. 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. App. 2021) (same), cert. granted sub nom. Counterman v. Colorado, 143 S. Ct. 644 (2023). After all, to the victim, such actions are not only life-threatening—they‘re life-altering, even if they don‘t eventually result in violence.
Moreover, there are additional reasons why disarmament based on civil protective orders should give us pause. Scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger. That makes it difficult to justify
A.
“Many divorce lawyers routinely recommend pursuit of civil protection orders for clients in divorce proceedings . . . as a tactical leverage device.” Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2, 62 n.257 (2006). See also, e.g., Randy Frances Kandel, Squabbling in the Shadows: What the Law Can Learn from the Way Divorcing Couples Use Protective Orders as Bargaining Chips in Domestic Spats and Child Custody Mediation, 48 S.C. L.
Rev. 441, 448 (1997) (civil protective orders are deployed as “an affirmative element of divorce strategy“).
That‘s because civil protective orders can help a party in a divorce proceeding to “secure [favorable] rulings on critical issues such as [marital and child] support, exclusion from marital residence and property disposition.” Murray v. Murray, 631 A.2d 984, 986 (N.J. Super. Ct. App. Div. 1993). Protective orders can also be “a powerful strategic tool in custody disputes.” Suk, supra, at 62.
That makes civil protective orders a tempting target for abuse. Judges have expressed “concern[] . . . with the serious policy implications of permitting allegations of . . . domestic violence” to be used in divorce proceedings. Murray, 631 A.2d at 986. See also City of Seattle v. May, 256 P.3d 1161, 1166 n.1 (Wash. 2011) (Sanders, J., dissenting) (noting “the growing trend to use protection orders as tactical weapons in divorce cases“). And for good reason. “[N]ot all parties to divorce are above using [protective orders] not for their intended purpose but solely to gain advantage in a dissolution.” Scott A. Lerner, Sword or Shield? Combating Orders-of-Protection Abuse in Divorce, 95 Ill. Bar J. 590, 591 (2007). Anyone who is “willing to commit perjury can spend months or even years . . . planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding.” David N. Heleniak, The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act, 57 Rutgers L. Rev. 1009, 1014 (2005). So “[a] plaintiff willing to exaggerate past incidents or even commit perjury can have access to a responsive support group, a sympathetic court, and a litany of immediate relief.” Peter Slocum, Biting the D.V. Bullet: Are Domestic-Violence Restraining Orders Trampling on Second Amendment Rights?, 40 Seton Hall L. Rev. 639, 662-63 (2010).
Moreover, these concerns are exacerbated by the fact that judges are too often ill-equipped to prevent abuse. Family court judges may face enormous pressure to grant civil protective orders—and no incentive to deny them. For example, family court judges may receive mandatory training in which they‘re warned about “the unfavorable publicity” that could result if they deny requests for civil protective orders. Id. at 668. As one judge has noted, “[a] newspaper headline can be death to a
As a result, “[r]estraining orders . . . are granted to virtually all who apply.” May, 256 P.3d at 1166 n.1 (Sanders, J., dissenting) (quotations omitted). So there‘s a “tremendous” risk that courts will enter protective orders automatically—despite the absence of any real threat of danger. Heleniak, supra, at 1014. See generally Slocum, supra. In one case, for example, a family court judge granted a restraining order on the ground that the husband told his wife that he did not love her and was no longer attracted to her. See Murray, 631 A.2d at 984. “There was no prior history of domestic violence,” yet the judge issued the order anyway. Id. Another judge issued a restraining order against David Letterman on the ground that his presence on television harassed the plaintiff. See Todd Peterson, David Letterman Fights Restraining Order, People (Dec. 21, 2005).
B.
Moreover, the consequences of disarming citizens under
In any domestic violence dispute, a judge may see no downside in forbidding both parties from harming one another. A judge “may think that mutual restraining orders are not substantially different from regular restraining orders—after all, the goal is to keep the parties away from one another so that the violence will not continue.” Jacquie Andreano, The Disproportionate Effect of Mutual Restraining Orders on Same-Sex Domestic Violence Victims, 108 Cal. L. Rev. 1047, 1054 (2020). “Judges may also feel that issuing a mutual restraining order saves time because they do not have to hear testimony and make a finding regarding which party is a primary aggressor or even that one party has committed domestic violence.” Id.
But “[t]hese judicial assessments have often led to the issuance of unmerited mutual restraining orders, namely in situations where one party is the abuser and the other party is a victim.” Id. (emphasis added). As a result, “both parties are restrained even if only one is an abuser.” Id. at 1055 (emphasis added). See also Elizabeth Topliffe, Why Civil Protection Orders Are Effective Remedies for Domestic Violence but Mutual Protective Orders Are Not, 67 Ind. L.J. 1039, 1055-56 (1992) (“[J]udges often issue a mutual protection order without any request from the respondent or his lawyer. . . . [J]udges and lawyers . . . may be tempted to resort to mutual protective orders frequently. However, when they do this in cases where there truly is one victim and one batterer, they ignore some of the real difficulties of mutual protection orders.“). See generally David Hirschel, Nat‘l Criminal Justice Reference Serv., Domestic Violence
Cases: What Research Shows About Arrest and Dual Arrest Rates (2008).
The net result of all this is profoundly perverse, because it means that
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We must protect citizens against domestic violence. And we can do so without offending the Second Amendment framework set forth in Bruen.
Those who commit or criminally threaten domestic violence have already demonstrated an utter lack of respect for the rights of others and the rule of law. So merely enacting laws that tell them to disarm is a woefully inadequate solution. Abusers must be detained, prosecuted, and incarcerated. And that‘s what the criminal justice system is for. I concur.