SCOTUS’s 2nd Amendment Decision Leaves Open Questions for State Courts

There’s little relief in sight for state courts struggling to interpret the U.S. Supreme Court’s Second Amendment holdings.

The Court last week rejected a Second Amendment challenge to a federal law banning gun possession by people under domestic violence restraining orders. The case, United States v. Rahimi, signals that even after dramatically expanding judicial protection for gun rights in 2022 in the landmark Bruen decision, the right to keep and bear arms still has some guard rails when it comes to domestic abusers. Even in that context, however, Rahimi leaves open many questions about when a disarmament order is constitutional — questions that state courts will be largely left to grapple with. 

Zackey Rahimi was undeniably a dangerous person who could not be trusted with firearms. After an argument in a Texas parking lot, Rahimi knocked his former girlfriend to the ground, dragged her to his car, and shoved her inside. He noticed that a witness had seen the incident, so he retrieved and fired a gun, fortunately not hitting anyone. He later threatened to shoot the ex-girlfriend if she reported the abuse. She bravely did so anyway, leading to a two-year protective order that expressly banned gun possession by Rahimi. Relevant to the Supreme Court litigation, it also triggered a separate federal law that likewise barred gun possession. Undeterred, Rahimi did not disarm but rather went on a shooting spree, opening fire on at least five separate occasions in the following months.

At issue in Rahimi was the federal law barring gun possession for people subject to domestic violence restraining orders. A largely overlooked feature of Rahimi is that the federal law was activated by an underlying state-court-issued order that itself barred gun possession. State law, not federal law, is the primary source of domestic violence protections in the United States, and state courts are the primary venue for enforcing them. More than 30 states expressly disarm persons subject to restraining orders that satisfy certain criteria, and more than a dozen others permit disarmament as part of a protective order.

State court-issued protective orders requiring disarmament apply more broadly than federal law. Take two examples. First, more than 20 jurisdictions grant state judges the authority to issue a temporary disarmament order ex parte — that is, without the subject of the order present — before the formal hearing that triggers the federal law. Experts point out that early, ex parte disarmament may save lives, as it is associated with a meaningful decrease in firearm-related intimate partner homicide. Second, states extend firearm prohibitions to domestic violence restraining orders involving non-spouse intimate partners who have neither resided nor had a child with the person petitioning for the order, categories of domestic abusers not covered by the federal law.

While it is difficult to know how many state protection orders require disarmament but don’t trigger the federal law, it is safe to assume that state disarmaments far exceed federal disarmaments. According to the U.S. Government Accountability Office, more than 900,000 protection orders were in place in 2015, with 334,000 triggering federal disarmament. Given variations between state and federal regimes, many of the 500,000-plus protection orders that didn’t trigger the federal firearm disqualification likely still barred gun possession.

Justice Neil Gorsuch correctly noted in his Rahimi concurrence that the Court’s ruling was a narrow one that “leaves open the question whether the [federal] statute might be unconstitutional as applied in ‘particular circumstances.’” And, likewise, it also didn’t resolve the myriad Second Amendment questions about state regimes. Gorsuch continued, “We do not decide today whether the government may disarm a person without a judicial finding that he poses a ‘credible threat’ to another’s physical safety.” But state law (and, indeed, federal law) permit disarmament in those circumstances. Gorsuch also noted that “we do not resolve whether the government may disarm an individual permanently.” Though most states limit protective orders to between one and three years, abuse victims often can petition to extend the order for an additional period, and 18 states allow for the possibility of a lifetime protective order. And the Court emphasized that Rahimi was disarmed only after a hearing, a requirement for the federal law but not for the ex parte disarmaments that are common in state courts.

Second Amendment cases in federal courts tend to attract the most attention, yet two times as many Second Amendment claims are litigated in the state courts. That is almost surely true of domestic violence restraining order disarmaments, too, given that state law dominates the field. State judges dealing with the onslaught of right-to-bear-arms litigation after Bruen have struggled to understand the Supreme Court’s turn to a novel history-focused approach. As Ohio Supreme Court Justice Jennifer Brunner stated:

I have concerns about how “history” or historiology can become part of a legal analysis, as this court embarks on the legal equivalent of asking whether a modern translation of the Bible accurately conveys the teachings of the original texts. . . . Fundamentally, no appellate court should be the fact-finder in determining the tradition of gun regulations during different eras of our nation’s history, including how and why guns may have been regulated.

Other state judges, facing issues ranging from knife rights to public firearm carry, are likewise grappling with the Supreme Court’s mandate to judge modern weapons laws based on their similarity to weapons laws from a bygone era. Rahimi hardly clarified how to conduct that historical test.

Domestic violence homicides are inextricably intertwined with firearm use in the United States. The presence of a gun makes it five times more likely that a woman will die at the hands of a domestic abuser. Rahimi blessed a federal restraining order regime that preserves power to address that intersection, but in doing so did not resolve a host of questions about the continued validity of aspects of state regimes that are often relied upon to disarm domestic abusers. It may be that courts eventually bless the range of state disarmament protocols that exist, and perhaps the fact that Justice Thomas — the author of Bruen — was the lone dissenter in Rahimi signals that the Court will try to pull the Second Amendment back from the extreme interpretations we’ve come to expect. But, for now, expect a lot more Second Amendment litigation as courts wrestle with what Rahimi means for the future of efforts to disarm domestic abusers.

Eric Ruben is an associate professor of law at SMU Dedman School of Law and a fellow at the Brennan Center. Justice Ketanji Brown Jackson’s concurring opinion in United States v. Rahimi cited a brief Ruben co-filed as well as his article "Originalism-by-Analogy and Second Amendment Adjudication," published in the Yale Law Journal (with Joseph Blocher).