Near the end of its 2023-2024 term, the United States Supreme Court issued its decision in United States v. Rahimi, 602 U.S. —, 2024 WL 3074728 (June 21, 2024). In its opinion, the Court attempts to ratchet back some of the consequences/implications of its decision two years ago in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). Specifically, the Court backed away from the notion that a contemporary gun regulation must have an “historical twin” to survive a Second Amendment challenge. Instead, the Court held that the government may satisfy its burden by pointing to an “historical analogue” to the regulation. Although the Court narrowed the scope of Bruen, it retained the essential structure of Bruen — i.e., when a firearm regulation is challenged under the Second Amendment, the government must show that the law is “relevantly similar” to founding era restrictions.
The Court looked specifically at 18 U. S. C. §922(g)(8), which prohibits individuals subject to a domestic violence protection order from possessing a firearm. After providing Mr. Rahimi notice, a Texas state court entered an order of protection, which barred him from having contact with a former girlfriend and their child. The order explicitly included a finding that Mr. Rahimi posed “a credible threat” to the “physical safety” of his former girlfriend and their child.
The Court then examined laws from the time of the founding—specifically “going armed” and surety laws—to determine if the contemporary statute was sufficiently analogous to those founding era regulations. The Court observed that surety and going armed laws of the founding era permitted the government to disarm an individual if that “individual poses a clear threat of physical violence to another.” And though these laws are not identical to 18 U. S. C. §922(g)(8), they are sufficiently analogous to justify the contemporary statute.
In other words, the Court decided very little that would change the analysis under Bruen.