Did SCOTUS Validate Red Flag Laws?

While the Court's decision in United States v. Rahimi validates disarming individuals deemed a credible threat, it also endorses procedural safeguards that are absent in many state red flag laws/ERPOs

In a landmark ruling today, the Supreme Court delivered its opinion on United States v. Rahimi, a case that attempted to balance the an individual’s Second Amendment rights with public safety concerns. The case revolved around Zackey Rahimi, who was prohibited from possessing firearms under 18 U.S.C. § 922(g)(8)¹ due to a domestic violence restraining order. The central question was whether this statute, as applied to Rahimi, violated the Second Amendment.

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Question Presented:

Whether 18 U.S.C. § 922(g)(8), which prohibits individuals subject to certain restraining orders from possessing firearms, violates the Second Amendment rights of those individuals.

Holding:

An individual who has been found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. The Court upheld the constitutionality of 18 U.S.C. § 922(g)(8), which prohibits individuals subject to certain domestic violence restraining orders from possessing firearms, provided that such orders include a finding of a credible threat to the physical safety of an intimate partner or child.

Background of the Case

Zackey Rahimi had a restraining order issued against him after a series of violent incidents involving his girlfriend and their child. The restraining order explicitly found that Rahimi posed a credible threat to their safety. Despite this, Rahimi was later found in possession of firearms, leading to his indictment under § 922(g)(8), which prohibits individuals under certain restraining orders from possessing firearms.

Rahimi challenged this indictment, arguing that § 922(g)(8) infringed on his Second Amendment rights. While the district court upheld the statute, the Fifth Circuit Court of Appeals reversed this decision, questioning whether the statute aligned with the historical traditions of firearm regulation as outlined by the Supreme Court in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022).

Supreme Court’s Analysis and Decision

The Supreme Court, in a majority opinion delivered by Chief Justice Roberts, reversed the Fifth Circuit’s decision, holding that § 922(g)(8) does not violate the Second Amendment. The Court's analysis rested on several key points:

1. Historical Tradition of Firearm Regulation: The Court emphasized that, historically, the United States has implemented firearm regulations aimed at preventing individuals who pose a threat to others from misusing firearms. The Court drew parallels between § 922(g)(8) and historical laws such as surety laws and "going armed" laws from the founding era, which similarly sought to prevent violence by disarming individuals deemed dangerous.

2. Judicial Determination and Procedural Protections: A critical aspect of the statute’s constitutionality is the requirement for a judicial finding of danger. Under § 922(g)(8), a court must find that an individual poses a credible threat to another's physical safety, and the individual must have received actual notice and an opportunity to be heard. These procedural safeguards ensure that the statute is applied fairly and aligns with historical practices of judicially mediated disarmament.

3. Burden of Proof: The decision acknowledged the necessity for a judicial finding that an individual represents a credible threat. Although the decision does not specify the exact burden of proof, it implies that civil proceedings, which often use a "preponderance of the evidence" standard, suffice for these determinations.

4. Analogue vs. Twin: The Court clarified that the Second Amendment allows for regulations that are "relevantly similar" to historical laws, even if they are not exact replicas.

What about red flag laws?

Notice and Opportunity: The Court highlighted the importance of procedural protections, stating, "A prosecution under Section 922(g)(8) may proceed only if three criteria are met. First, the defendant must have received actual notice and an opportunity to be heard before the order was entered"​​. This ensures that individuals subject to firearm prohibitions under § 922(g)(8) are given a fair chance to contest the findings that lead to their disarmament.

The decision does not extend its validation to red flag laws (sometimes called Extreme Risk Protective Orders) that lack these procedural protections. The Court's decision focused on laws that fit within the historical tradition of firearm regulation, which included judicial findings and the opportunity for the accused to participate in the proceedings.

Section 922(g)(8) is distinct from state red flag laws that issue ex parte orders, where a court can temporarily disarm an individual without prior notice or a hearing. The Court made clear that such procedural protections are critical, noting that Rahimi had the opportunity to contest the restraining order's issuance​​. The absence of such safeguards in ex parte orders means that they could be more vulnerable to constitutional challenges under the Second Amendment.

The Supreme Court's decision in United States v. Rahimi underscores the necessity of procedural protections such as notice and the opportunity to be heard for firearm prohibitions to be constitutional. This ruling suggests that state red flag laws lacking these safeguards, particularly those involving ex parte orders, may face significant constitutional challenges under the Second and Fourteenth Amendments.

1. Section 922(g)(8) of Title 18 of the United States Code prohibits individuals subject to certain restraining orders from possessing firearms. Specifically, it applies to individuals who are subject to a court order that (A) was issued after a hearing of which the person received actual notice and at which the person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child, or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child.