Experts torn over Supreme Court direction in next Second Amendment case

Second Amendment

As the Supreme Court prepares to embark on its next Second Amendment case, legal experts are torn on how the justices may rule on a novel challenge to a long-standing federal law barring domestic abusers from possessing firearms.

The case, known as Rahimi v. U.S., which has not been slated for oral arguments yet, involves Texas resident Zackey Rahimi, whose legal problems began in 2019 when he pulled a gun and fired at a passerby who witnessed him dragging his at the time girlfriend through a parking lot.


Rahimi was involved in another shooting months later after getting into a vehicular accident, where he repeatedly shot at the other driver, according to court records. One year later, he threatened a woman with a gun and was charged with aggravated assault. In 2021, he fired several shots into the air after his friend’s credit card was declined at a fast food restaurant near Fort Worth.

While Rahimi is facing separate charges for his violent misuse of a firearm, his public defenders are challenging one of his convictions under a 1994 federal statute that bars people who are subject to domestic violence restraining orders from owning a gun. Those charges were leveled after police obtained a search warrant for his address after the string of shootings, discovering a court-issued restraining order against him by his ex-girlfriend.

Zackey Rahimi was sentenced to over six years in prison before an appeals court vacated his conviction.

Tarrant County Sheriff’s Office


Citing the 2022 Supreme Court decision in Bruen v. New York Rifle & Pistol Association, Rahimi’s counsel argues that because there was no regulation that banned guns from people subject to restraining orders at the time of the nation’s founding, the federal statute known as 922(g)(8) should not stand.

The U.S. Court of Appeals for the 5th Circuit sided with Rahimi in March, noting while he’s “hardly a model citizen,” the statute barring him from owning a gun is an “outlier that our ancestors would never have accepted.”

The Biden administration appealed to the Supreme Court, which agreed last month to hear the case.

Legal experts provided mixed responses over how the case might ultimately resolve in part because of its sweeping decision in Bruen that has led to more than 30 successful claims over other Second Amendment challenges in lower courts. But as early as 2021, the Supreme Court allowed a series of lower court rulings to stand that prevented people from owning firearms when convicted of driving under the influence, making false statements on tax returns, and selling counterfeit cassette tapes.

Matthew Lacombe, a political science professor at Case Western Reserve University who focuses on Second Amendment law, said he could envision a scenario where the justices uphold the statute in a way “that doesn’t have much of an effect on how the Bruen ruling is interpreted and applied moving forward.”

But Lacombe clarified that he could also envision a scenario where the court uses its decision in Rahimi to “provide greater clarity about how that standard should be applied moving forward.”

Other experts, such as Daniel Cohen, a partner at Consumer Attorneys, appeared more confident that the justices might affirm the 5th Circuit’s decision.

Cohen said the federal statute “restricts access to guns to people who have yet to be convicted of a crime,” noting that the Bruen test requires historical analogs to the nation’s history of firearms laws and that there “aren’t any close enough for this court.”

Meanwhile, organizations that have raised awareness about the interconnections between domestic violence offenders and gun violence have suggested that the Supreme Court may also be able to come up with an outcome that rules against Rahimi while upholding its recent Second Amendment test from Bruen.

“An outcome favoring the statute could undoubtedly be consistent with what the court decided in Bruen,” Bailey Hoffeditz, legal director of the Sexual Violence Prevention Association, told the Washington Examiner. Hoffeditz added that the primary question for the justices would be, “How nuanced does this historical analysis and comparison need to be to pass constitutional muster?”

Despite the broad interest in the Rahimi case, gun rights groups, including the National Rifle Association, have been atypically quiet about the case before the justices, as neither the NRA nor the Firearms Policy Coalition filed amicus briefs when the case was on appeal.

However, some firearms rights proponents, including the Second Amendment Foundation and Gun Owners of America, have signaled plans to file briefs.

Erich Pratt, senior vice president of Gun Owners of America, told USA Today his group would soon file a brief “in support of overturning the law in question.”

Still, inconsistencies in lower courts that have been toiling in Second Amendment cases post-Bruen suggest there may be room for clarification about the sweeping decision last summer.

Some legal experts have pointed to Justice Amy Coney Barrett’s concurrence in the ruling last summer as a clue that tells where the justices’ disagreements could begin to percolate.

Amy Coney Barrett sits during a hearing in front of the Senate Judiciary Committee.
Amy Coney Barrett sits during a hearing in front of the Senate Judiciary Committee.


Barrett wrote that the majority did not clearly answer whether the court should rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 or when the Bill of Rights was ratified in 1791.

Josh Blackman, a South Texas College of Law professor, told the Reload that the high court could ultimately wind up limiting Bruen but could do so by “creating a carveout for people with certain types of criminal offenses.”


That’s because under the Bruen framework, there is no “clear ‘analog'” between domestic violence restraining orders and past laws, Blackman said.

No matter the outcome in Rahimi, the case is likely to generate significant tensions in the lead-up to oral arguments and a final decision, as major interests, including Gov. Kathy Hochul (D-NY) and pro-gun control groups such as Giffords, have made calls for upholding the 1994 statute.

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