U.S. v. Rahimi: Temporary Firearm Ban Constitutional

There is a saying among attorneys that “bad facts make bad law.”  This adage is exemplified by the recent U.S. Supreme Court ruling in United States v. Zackey Rahimi.

In December 2019, Mr. Rahimi met his girlfriend, C.M., for lunch in a parking lot in Tarrant County, Texas.  C.M. is also the mother of Mr. Rahimi’s young child.  During the meeting, Mr. Rahimi and C.M. began arguing and Mr. Rahimi became enraged.  C.M. attempted to leave the car, but Mr. Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her head to hit against the dashboard.

When Mr. Rahimi realized an onlooker had witnessed the incident, Mr. Rahimi paused to retrieve a loaded gun under his driver’s seat.  C.M. took advantage of this distraction and left the car, causing Mr. Rahimi to fire his gun.  He then yelled out to C.M. not to report the incident or he would kill her.

C.M. then went to court and obtained a restraining order.  In her petition for such an order, she described the parking lot incident.  The judge issued a two-year restraining order, which included a finding that Mr. Rahimi had committed “family violence” and that this violence “was likely to occur again” and that Mr. Rahimi posed a “credible threat” to the physical safety of C.M. and her child.  The order also suspended Mr. Rahimi’s gun license for two years.

In May 2020, Mr. Rahimi violated the order by approaching C.M.’s house at night and contacting her through several social media accounts.

Iin November, 2020, Mr. Rahimi threatened a different woman with a gun, resulting in a charge of aggravated assault with a deadly weapon.  While Mr. Rahimi was under arrest for this, Texas law enforcement identified Mr. Rahimi as a suspect in five additional shootings, one involving the sale of illegal drugs wherein Mr. Rahimi shot into a home, three involving road rage incidents, one involving discharge of a firearm inside a restaurant.

Mr. Rahimi was then indicted on one count in U.S. District Court for possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. § 922(g)(8).  At the time, such a violation was punishable by up to ten years’ imprisonment (since amended to 15 years).

Mr. Rahimi moved to dismiss the charge, arguing that § 922(g)(8) violated the Second Amendment.  The District Court denied his motion, but while his case was on appeal to the U.S. Court of Appeals for the Fifth Circuit, the U.S. Supreme Court decided New York State Rifle and Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1.

In light of Bruen, the Fifth Circuit reversed the district court, concluding that the government had not shown that 922(g)(8) “fits within our Nation’s historical tradition of firearm regulation.”  U.S. v. Rahimi (5th Cir., 2023) 61 F. 4th 443, 460.

The government then appealed to the U.S. Supreme Court, which reversed the Fifth Circuit, holding that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent the Second Amendment.  

The U.S. Supreme Court found that historical tradition generally supports firearm regulation to stop those who misuse firearms by threatening physical harm to others.  As applied to Mr. Rahimi, the Supreme Court found that the district court’s findings about Mr. Rahimi’s criminal history and his involvement in such a series of dangerous incident involving firearms demonstrated he had misused firearms to harm or menace others.

We believe that this ruling does not conclusively ban firearms from those subject to a domestic violence restraining order, based on the extreme facts of Mr. Rahimi’s case and based on what the U.S. Supreme Court found that the district court had established.  In other words, for such a ban to pass constitutional muster, there must be finding of “a credible threat to the physical safety” of others, as well as the misuse of firearms to harm or menace others, not just mere possession of a firearm.  

So while some may mourn this U.S. Supreme Court ruling, we interpret it as requiring a very high standard with facts of someone being essentially on a rampage with using firearms, including three incidents of road rage, shooting into a home and discharging a firearm during a drug sale transaction, as well as a domestic violence incident with a discharge of a firearm, too.  It is unlikely that many people subject to such a firearm ban will match or surpass the high danger Mr. Rahimi demonstrated.