Justice Thomas stands alone against major gun ruling: Disarming accused domestic abusers 'puts at risk the 2nd Amendment rights of many more'

Associate Justice Clarence Thomas sits during a group photo of the Justices at the Supreme Court in Washington, D.C on April 23, 2021. (Photo by Erin Schaff/Pool/Getty Images.)

Justice Clarence Thomas stood alone in a 8-1 ruling Friday in which the United States Supreme Court upheld a federal law restricting domestic abusers from possessing firearms. The ruling is the Court’s first handgun case since its 2022 ruling striking down New York’s handgun licensing regime in New York State Rifle & Pistol Association v. Bruen .

Zackey Rahimi and the underlying dispute

Zackey Rahimi’s ex-girlfriend accused Rahimi of assaulting her. He then consented to a restraining order, which prohibited him from harassing, stalking, or threatening his ex-girlfriend and their child, and also prohibited him from possessing a gun.

Despite having agreed to the restrictions, Rahimi was involved in a two-week violence spree in which he was involved in five separate Texas shootings. When law enforcement caught up with Rahimi, they found a rifle and a pistol in his home. Rahimi was charged and convicted of unlawfully possessing the guns, then the conviction on the grounds that the charging law — 18 U.S. Code § 922 — was an unconstitutional violation of Rahimi’s Second Amendment rights.

18 U.S. Code § 922 (g)(8) restricts individuals from gun possession if they are “subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner.”

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit made up of U.S. Circuit Judges Edith Jones, a Ronald Reagan appointee, and James Ho and Cory Wilson, both Donald Trump appointees, sided unanimously with Rahimi and vacated his conviction.

The Biden administration appealed and the Supreme Court reversed the Fifth Circuit’s ruling.

The Supreme Court applies Bruen

In Bruen, Thomas wrote that the “unqualified command” of the Second Amendment is that enforceable gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.” Bruen’s ruling built upon the 2008 District of Columbia v. Heller , in which Justice Antonin Scalia said Second Amendment guarantees only apply fully to “ordinary” or “responsible” law-abiding citizens — a category in which the Biden administration argued that Rahimi and other domestic abusers do not fall.

Chief Justice John Roberts penned the Rahimi decision for the nearly-unanimous majority in which he said the Court had “no trouble” concluding that the law in question was constitutional. Roberts reminded that the Court has ruled that the right to keep and bear arms is a fundamental right under the Second Amendment. Roberts noted that, “some courts have misunderstood the methodology of our recent Second Amendment cases,” and clarified, “These precedents were not meant to suggest a law trapped in amber.”

Roberts recalled from the Bruen ruling that while a gun regulation “must comport with the principles underlying the Second Amendment,” but it need not be a “dead ringer” or a “historical twin.” § 922 (g)(8) sufficiently lines up with history, said Roberts.

“From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others,” the chief justice wrote, before delving into multiple examples from English history in which people were disarmed. Roberts noted that as far back as the 1600s, dangerous individuals, political opponents, and even “disfavored religious groups” were regularly disarmed.

Roberts qualified that the current ruling does not suggest that those merely suspected of posing a special danger could be prevented from possessing guns, but distinguished such a group from those that a court has actually found credibly dangerous.

A flurry of concurrences

Justice Sonia Sotomayor penned a concurrence which was joined by Justice Elena Kagan in which it was noted an ongoing objection to the “wrongly decided” Bruen decision. Sotomayor remarked that even using the Bruen standard, the decision was “an easy case.”

Sotomayor also chastised Thomas for interpreting Bruen too strictly.

“If the dissent’s interpretation of Bruen were the law, then Bruen really would be the ‘one-way ratchet’ that I and the other dissenters in that case feared,” Sotomayor wrote.

She continued, arguing that by Thomas’s logic, a legal solution to a problem would need to match history even when the underlying problem has substantially changed.

“Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, it is no surprise that that generation did not have an equivalent to §922(g)(8),” Sotomayor argued about “Bruen’s myopic focus on history and tradition.”

Justice Neil Gorsuch penned a solo concurrence in which he argued that the idea of requiring a historic analogue is not all bad.

“Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text,” Gorsuch warned, before saying that the Court got it right in Rahimi’s case.

Justice Brett Kavanaugh also provided a lone concurrence in which he proclaimed the importance of adhering to the text of the Constitution and said that even an originalist interpretation of American law has long recognized that “constitutional rights generally come with exceptions.”

Kavanaugh likened judges to umpires and said that their responsibility is to stick closely to the text and not insert policy or personal beliefs. Kavanaugh then provided a lengthy recap of the Court’s long-standing practice of looking to history to decide cases involving individual rights. Balancing various interests during the decision-making process “can be antithetical” to the idea of judges as umpires, said Kavanaugh.

“It turns judges into players,” said the justice.

Justice Amy Coney Barrett also wrote her own concurrence which began with a statement that “the Second Amendment is not absolute,” before recounting what she said were the basic principles of originalism.

Barrett noted that “reasonable minds sometimes disagree about how broad or narrow the controlling principle should be,” but that the Court decided the Rahimi case correctly.

In Justice Ketanji Brown Jackson’s sole concurrence, she said that had she been on the Court when Bruen was decided, she would have dissented — but that given its status as binding law today, she joins in the Rahimi ruling.

Jackson argued that rules set forth in Bruen are simply not working, because they are creating confusion.

“The message that lower courts are sending now in Second Amendment cases could not be clearer,” Jackson wrote. “They say there is little method to Bruen’s madness.”

Jackson argued that Bruen’s history-and-tradition test is not only burdensome for courts, but also leads to inconsistent results that are far more problematic than gun rulings were before Bruen was decided. Jackson concluded by saying that courts are “currently at sea” and in need of “a solid anchor” for deciding firearms cases and that both courts and the public deserve clarity.

Thomas stands alone

Only Thomas stood in dissent, arguing that § 922(g)(8) violates the Second Amendment. Thomas said that the government utterly failed to provide any historical analogue to the statute, and noted that the failure is “unsurprising,” because Founding-era laws would not have responded to domestic violence by disarming people. Rather, Thomas explained, surety laws were used at the time to discourage interpersonal violence.

Thomas criticized the Biden administration for its position in the case and called it “a bald attempt to refashion this Court’s doctrine.”

Thomas liked the government’s attempt to strip “dangerous” individuals of guns to the treatment of Black Americans during the period of slavery and its aftermath.

“The Government peddles a modern version of the governmental authority that led to those historical evils,” Thomas said.

“Its theory would allow federal majoritarian interests to determine who can and cannot exercise their constitutional rights,” he warned.

Thomas wrote that, “in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more.”

Thomas concluded by saying that a mechanism already exists for stripping dangerous criminals of guns: states can simply prosecute them for their crimes and imprison them accordingly.

You can read the full ruling here .

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