Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order

A Fifth Circuit panel handed down today another big post-Bruen ruling declaring that the Second Amendment renders unconstitutional a federal prohibition on firearm possession for certain disfavored individuals.  The ruling today in US v. Rahimi, No. 21-11001 (5th Cir. Feb. 2, 2023) (available here), gets started this way:

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.  The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.  In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court’s pre-Bruen precedent. See United States v. Rahimi, No. 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022).  Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen.  The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one.  Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court’s ruling to the contrary and vacate Rahimi’s conviction.

Here are a few of many notable passages from the opinion:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “nonlaw abiding” people — however expediently defined — from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” Heller, 554 U.S. at 581.  Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal….

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.  The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id.  As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge “it is unnecessary … to appoint an historian to assist” in resolving defendant’s Second Amendment claim 
• New district court opinion “holds that § 922(g)(8) is unconstitutional under Bruen‘s framework”
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)’s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)’s felon-in-possession gun prohibition after Bruen 

UPDATE: This AP article about the Rahimi ruling provides a bit more context concerning the decision and also includes an official reaction from US Attorney General:

The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm.  Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.  Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

Seeking “further review,” I suspect, will involve the Department of Justice first requesting en banc consideration of this panel decision in the Fifth Circuit.  If that does not happen, I would expect DOJ would then seek Supreme Court review.  Interestingly, were SCOTUS to take up this case (or any similar ones) anytime in 2023, we could reasonably expect another major Second Amendment ruling in the run up to the 2024 election.