For thirty years two federal laws prohibited all those convicted of misdemeanor domestic violence offenses, and  also those not convicted or even charged with any crime but subject to domestic violence “restraining orders” from ever possessing firearms. See 18 § USC 922(g)(9) (“… who has been convicted in any court of a misdemeanor crime of domestic violence).  See 18 USC § 922(g)(8). 

From a practitioner’s perspective these provisions have proven instantaneously fatal to tens of thousands of our nation’s law enforcement and military personnel. I have represented many of these accused professionals who are immediately put on leave or discharged from duty.    

But on Thursday February  2^nd, The Fifth Circuit of the United States Court of Appeals, the second highest court in the United States, struck down 18 USC § 922(g)(8) as unconstitutional  in a case entitled  United States v. Rahimi No. 21-11001 (5^th Cir. Feb.2, 2023)

For years it has been a federal offense, punishable as a felony to possess a firearm if you are a convicted felon. But the law went much further, also making it a federal felony to possess any firearm if for example a person was “discharged from the Armed Forces under dishonorable conditions.” See  18 USC § 922(g)(6). To show you how broad the law was as passed it is worth saying that  § 922  also made it a federal felony  for any “drug user” even if not convicted of any crime to possess a firearm. See 18 USC § 922(g)(3).  This prohibition for “drug users” to possess a firearm includes those  who have never been convicted of any drug offense.  And it includes by its terms those who use marijuana, even if marijuana is legal in the state they are using it.

But eight months ago the United States Supreme Court struck down a  century-old New York law that placed restrictions on carrying a concealed weapon outside the home. See  New York State Rifle & Pistol Association v. Bruen 142 S.Ct.2111 (June 23,2022) “Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need, we conclude that the State’s licensing regime violates the Constitution,” Justice Clarence Thomas wrote for the Court’s 6-3 majority.

And a  week after the Bruen opinion was released, the Supreme Court vacated decisions from federal courts of appeals, that had upheld bans on common rifles or magazines in Maryland, California, New Jersey,  and Hawaii, remanding those cases to the lover courts, and telling the lower courts to reconsider their decisions in light of Bruen.  See  Bianchi v. Frosh, 858 Fed. Appx. 645 (4th Cir. 2021), vacated by 142 S. Ct. 2898 (2022) (Mem.) (Maryland ban on common semiautomatic rifles);  Ass’n of N.J. Rifle & Pistol Clubs Inc. v. Att’y Gen. N.J., 974 F.3d 237 (3d Cir. 2020) (upholding confiscation of magazines over 10 rounds), vacated by 142 S. Ct. 2894 (2022) (No. 20-1507);  Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021) (also upholding magazine confiscation), vacated by 142 S. Ct. 2895 (2022). Also granted, vacated, and remanded in light of Bruen was Young v. State of Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc), which had held that Hawaii’s ban on open carry was constitutional because there is no right to bear arms outside one’s property. 

Under Bruen federal courts must and do  now apply a newly enunciated rigorous “test” when considering the constitutionality of  a challenged gun law:  The government  proponent of the challenged law “must affirmatively prove that its firearms regulation is part of the historical tradition delimits the outer bounds of the right to keep and bear arms.” See Bruen, supra at 2027. 

In a sense, then,  Bruen set the stage for the challenge for 18 USC 922(g)(8), and not surprisingly the Fifth Circuit in Rahimi applied verbatim  the Bruen test, in determining that Rahimi’s Second Amendment Rights were violated by the federal law under which he was prosecuted that banned all those merely subject to domestic violence restraining orders from possessing firearms. 

Moreover, the Fifth Circuit in Rahimi,  relying directly on Bruen  observed  that  Rahini “like any other citizen, may have forfeited his Second Amendment rights” but only if his conduct was “consistent with the historical tradition that delimits the outer bounds of the right to bear arms.” Rahami at 12, quoting Bruen, 142 S.Ct. at 2127. 

But the Court in Rahimi  held that although  18 USC § 922(g)(8) “embodies salutary policy goals meant to protect vulnerable people in our society”  the law is  an “outlier that our ancestors never would have accepted.” Rahimi at 22 quoting Bruen.  “Therefore, that statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.” Rahimi at 22. 

Impact of Rahimi

As stated above, for anyone working in law enforcement or on active duty the military, up until now a domestic violence accusation, even without a criminal charge could be instantaneously fatal to a career.  We in our practice have seen this happen over and over.  Rahimi lessens the impact, and seems to pave the way to further challenges to  18 USC § 922 provisions that reach far beyond convicted felons.