Can the Right to Bear Arms Be Waived? 

A loose thread from the Supreme Court’s latest gun ruling might ultimately protect firearm bans tied to domestic violence restraining orders, even outside the limited circumstances the justices approved.

In last year’s United States v. Rahimi, the Supreme Court upheld the federal law prohibiting gun possession by individuals subject to certain domestic violence restraining orders. The Court, however, was careful to cabin its holding, sustaining the statute only insofar as the restraining order contained a finding that the respondent “poses a credible threat to the physical safety” of an intimate partner. Left unresolved was the law’s alternative disarmament provision, which applies when a restraining order “by its terms” prohibits the use or threat of physical force — even where there is no judicial finding that a person poses a threat to another’s safety.

Most states, meanwhile, either require or permit firearm prohibitions as part of their own protective-order regimes, often without requiring a “credible threat” finding. The result is a landscape in which thousands of state-issued protection orders now sit in uncertain constitutional territory.

One overlooked detail in Rahimi points to a way through that uncertainty. The defendant there not only consented to the protection order but also to its disarmament requirement. That fact invites a deceptively simple but consequential question: When someone agrees to a protective order that restricts firearm possession, has that person voluntarily waived any subsequent Second Amendment claim? The Supreme Court did not address the issue, and while a few friend-of-the-court briefs flagged it, the parties themselves did not brief it.

The question matters. As professor Bonnie Carlson has recently observed, a large share of protective orders are entered by consent — 62 percent in Delaware in 2013 and more than 56 percent in Pennsylvania in 2012 — yet many of those orders lack a judicial finding of credible threat. If consent to a protective order that calls for disarmament can amount to a waiver of gun rights, then many of those orders could withstand constitutional challenge even before getting to the Second Amendment analysis.

The idea that individuals can waive constitutional rights is hardly novel. For nearly a century, the Supreme Court has held that such waivers generally must be “voluntary, knowing, and intelligent,” a standard derived from the 1938 case Johnson v. Zerbst, where the Court considered the relinquishment of the Sixth Amendment right to counsel. In that context, where life or liberty is at stake and a defendant stands unrepresented, the Court strongly suggested the trial judge should play an active role to ensure on the record that the waiver was “intelligent and competent.” But outside the right-to-counsel context in a criminal case, courts have not insisted on such formalities. Waiver doctrine under the First, Fourth, and Fifth Amendments, for example, routinely allows relinquishment through consent or even failure to object without simultaneous judicial oversight. What is sufficient for the right to bear arms is an open question.

The Iowa Supreme Court, in this year’s State v. Cole, was the first state high court to apply waiver principles to firearm restrictions in protection orders after Rahimi. Jordan Cole consented to a one-year order that went beyond restraining him from committing further abuse or threats. It also prohibited firearm possession, required him to surrender any firearms to law enforcement, and warned him that the order “may also affect the right to possess or acquire a firearm or ammunition under federal law” as well as under state law. But the order, notably, contained no finding that he posed a “credible threat.” When Cole was later discovered with firearms — including some allegedly stolen — he was prosecuted under Iowa law and claimed that the conviction violated his gun rights under both the federal and state constitutions.

The Iowa court rejected that argument. Cole, it reasoned, had voluntarily entered an order that clearly prohibited firearm possession. His lawyer had confirmed that he consented to it. Although there was no transcript of the hearing at which the consent order was entered, the court deemed the written record sufficient: The firearm prohibition was explicit, potential legal consequences were described, and there was no indication of coercion. The court noted that a Zerbst-style colloquy — an on-the-record judicial inquiry into whether the waiver was knowing, intelligent, and voluntary — might be advisable but was not constitutionally required. After all, people routinely waive other important constitutional protections without such formalities; they consent to police questioning under the Fifth Amendment, agree to searches under the Fourth Amendment, and so on.

The dissent in Cole took a stricter view, emphasizing that without a transcript or record of the hearing, it was impossible to know whether Cole had been advised during the hearing about firearms, gun rights, or future prosecutions. Senior Iowa District Judge Stephen Carroll, writing about Cole for the Duke Center for Firearms Law blog, likewise concluded that while “doctrinally, waiver functions as a gatekeeping device that allows courts to sidestep substantive constitutional review[,] practically, … trial judges should guard against perfunctory waivers by conducting a careful colloquy before accepting a defendant’s consent to an order that limits firearms rights.” Requiring a full Zerbst colloquy for every consent order of protection, however, would turn the Second Amendment into a super-right, not consonant with how waiver is treated in similar constitutional rights contexts. The U.S. Supreme Court warned in McDonald v. City of Chicago not to subject the right to bear arms “to an entirely different body of rules than the other Bill of Rights guarantees.” That guidance should apply to rules that would either dilute or turbocharge the Second Amendment. Practically, meanwhile, requiring such colloquies would impose a heavy administrative burden, especially when the order’s terms are clear and voluntary on their face.

The Iowa decision thus crystallizes an emerging doctrinal debate. Where a respondent explicitly consents to a protective order that forbids firearm possession — and where the order itself warns that violating its terms may carry both state and federal consequences — can courts treat that consent as a waiver of any later Second Amendment challenge? Does written notice, counsel’s confirmation, and an opportunity to object suffice to make the waiver voluntary, knowing, and intelligent?

Cole suggests a promising path forward, but at the same time reveals what could be improved. The consent order there warned that issuance “may” affect the respondent’s right to possess a firearm, but it could have said so more directly: that the respondent, by agreeing to the order, is waiving challenges based on federal or state constitutional firearm rights. The order also barred possession of “firearms, offensive weapons, or ammunition,” language broader than necessary to achieve its goal. If the risk addressed is gun violence, limiting the prohibition to firearms could narrow the burden on Second Amendment rights — which extend to “arms” beyond firearms — while maintaining protective efficacy. And because voluntariness is central, it would help to include an express acknowledgment that the respondent is of sound mind, is acting freely, and understands the firearm restriction.

A deeper lesson of Cole is not just that waiver is possible but that it can be structured. Clear drafting can transform an uncertain constitutional question into a stable legal outcome. In the post-Bruen and Rahimi world, as courts continue to test the contours of the right to keep and bear arms, state judges, lawyers, and drafters of protective orders have an opportunity to create records that reflect genuine, informed consent to disarm. Doing so would not only strengthen the enforceability of these orders but also align them with a core principle of constitutional law: that rights, even fundamental ones, can be knowingly, intelligently, and voluntarily waived.

Eric Ruben is an associate professor of law at SMU Dedman School of Law and a fellow at the Brennan Center. SMU Law student William Gollnick provided excellent research assistance.

Suggested Citation: Eric Ruben, Can the Right to Bear Arms Be Waived?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Nov. 13, 2025), https://statecourtreport.org/our-work/analysis-opinion/can-right-bear-arms-be-waived