Opinion: The Supreme Court’s missed opportunity on the Second Amendment

The Supreme Court recently issued a much-awaited opinion upholding a federal law that prohibits individuals subject to domestic violence restraining orders from possessing firearms.

On paper, it was a win for gun control. In reality, it was a missed opportunity.

The facts of the case were alarming. In December of 2019, Zackey Rahimi and his then-girlfriend got into an argument in a parking lot. As the argument escalated, Rahimi knocked her to the ground and dragged her into his vehicle, causing her to hit her head on the dashboard. Concerned about onlookers, Rahimi grabbed his gun and fired a shot to scare off any witnesses. His girlfriend was eventually able to escape, but he later called her and threatened to shoot her if she ever told anyone about the assault.

Three months later, Rahimi was given notice of a court hearing regarding a domestic violence restraining order that was requested by his former girlfriend, which was then granted. Months later, he was arrested for approaching his former girlfriend’s home in the middle of the night.

Rahimi would find himself in still more trouble in the ensuing months. In December of 2020 and January of 2021, he would commit five public shootings, including one in a Whataburger after his friend’s credit card declined. As a result of these shootings, police obtained a warrant to his home, where they found two firearms that he admitted to possessing. This was a blatant violation of the federal law prohibiting those subject to domestic violence restraining orders from possessing firearms.

Open-and-shut case, right? Wrong.

Though the trial court convicted Rahimi of the gun charges, the appeals court ruled that the law that he was charged under, 18 U.S.C. § 922(g)(8), violated the Second Amendment. In doing so, the court relied on a Supreme Court case issued in 2022, New York Pistol & Rifle Association v. Bruen . In Bruen, the Supreme Court held that, in order for a gun regulation to be constitutional, it must have a “historical analogue.”

According to the Supreme Court, this means that in analyzing whether a modern gun law violates the Second Amendment, courts must decide whether it is sufficiently similar to a historical gun regulation in both why and how it burdens Second Amendment rights. If the modern law does not meet these criteria, it is unconstitutional.

Predictably, this ruling set the lower courts on fire. Struggles over what constitutes an “analogue,” how far back one must look to find “history,” and what to do when the test offered absurd results festered across the country.

Rahimi’s case offers a striking example. In their analysis, the Fifth Circuit Court of Appeals held that none of the historical laws that were brought to the court’s attention were sufficiently similar. The reason, though not stated explicitly by the court, was simple: In the period of history that the court insisted on looking to, domestic violence was not punished. It was not until 1871 that Alabama became the first state to recognize a man beating his wife as battery. Accordingly, the Fifth Circuit held that there was no historical analogue to the law, rendering it unconstitutional.

When the Supreme Court took the case, the consensus among experts was that they would uphold the law. And on June 21, 2024, the court issued an 8-1 opinion that proved those experts right. Chief Justice John Roberts wrote for the court, holding that the Bruen test should not be construed so narrowly, and that here, the principle underlying several historical laws — that it is permissible to disarm dangerous people — is sufficiently similar to a law disarming those subject to domestic violence restraining orders.

But then he stopped. After clarifying that the specific law at issue in this case was constitutional based on a specific set of historical laws, the court failed to offer any real guidance going forward. Justice Ketanji Brown Jackson decried this concern in her concurring opinion , stating that “[L]ower courts are struggling. In my view, blame may lie with us, not them.”

The Rahimi case was undoubtedly a win for gun control advocates and domestic violence prevention groups alike. It is hard to overstate the devastating realities of domestic violence and their interplay with firearms in America. But gun control groups should also recognize Rahimi for what it was: a missed opportunity.

The Supreme Court only takes a handful of cases every year and has now dedicated an unprecedented number of these slots to the Second Amendment in the last three years. Accordingly, Americans should expect a lull in Second Amendment cases in the years that come— in fact, some briefs even advised the court not to take Rahimi because Bruen was too recently decided. With this in mind, Rahimi needed to be a clarification of the Bruen test, not merely an “F” circled at the top of the Fifth Circuit’s paper.

Somehow, in the wake of Rahimi, the lower courts have ended up hardly any wiser, and it will likely be years before they receive any further guidance. Similarly, gun control supporters will hardly know the legal standard against which the laws they advocate will be adjudicated. Undoubtedly, many more cases with outcomes like the Fifth Circuit’s decision in Rahimi are to come. It is up to the Supreme Court to decide when to put an end to the confusion. They certainly haven’t yet.

Gavin Barrett is a third-year law student at Duke University School of Law with a focus on Second Amendment law.

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