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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



2



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. 21-11001, 2022 WL 2070392 at

*1 n.1 (5th Cir. June 8, 2022). Rahimi filed a petition for rehearing en banc;

while that 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.



I.



Between December 2020 and January 2021, Rahimi was involved in

five shootings in and around Arlington, Texas.1



On December 1, after selling

narcotics to an individual, he fired multiple shots into that individual's

residence. The following day, Rahimi was involved in a car accident. He

exited his vehicle, shot at the other driver, and fled the scene. He returned

to the scene in a different vehicle and shot at the other driver's car. On

December 22, Rahimi shot at a constable's vehicle. On January 7, Rahimi

fired multiple shots in the air after his friend's credit card was declined at a

Whataburger restaurant.



Officers in the Arlington Police Department identified Rahimi as a

suspect in the shootings and obtained a warrant to search his home. Officers



1 The facts are drawn from the Pre-Sentence Report, which the district court

adopted, and the factual resume, to which Rahimi stipulated.

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executed the warrant and found a rifle and a pistol. Rahimi admitted that he

possessed the firearms. He also admitted that he was subject to an agreed

civil protective order entered February 5, 2020, by a Tarrant County state

district court after Rahimi's alleged assault of his ex-girlfriend. The

protective order prohibited Rahimi from, inter alia, "[c]ommitting family

violence,” "[g]oing to or within 200 yards of the residence or place of

employment” of his ex-girlfriend, and "[e]ngaging in conduct . . . including

following the person, that is reasonably likely to harass, annoy, alarm, abuse,

torment, or embarrass” either his ex-girlfriend or a member of her family or

household. The order also expressly prohibited Rahimi from possessing a

firearm.2



A federal grand jury indicted Rahimi for possessing a firearm while

under a domestic violence restraining order in violation of 18 U.S.C.

§ 922(g)(8), which provides:



It shall be unlawful for any person[] who is subject to a court

order that[:] (A) was issued after a hearing of which such

person received actual notice, and at which such person had an

opportunity to participate; (B) restrains such person from

harassing, stalking, or threatening an intimate partner of such

person or child of such intimate partner or person, or engaging

in other conduct that would place an intimate partner in

reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible

threat to the physical safety of such intimate partner or child;

or (ii) by its terms explicitly prohibits the use, attempted use,



2 The validity of the underlying protective order, and Rahimi's breach of it, are not

before us, though the order's underlying prohibitions, e.g., restraining Rahimi from

committing family violence, from using or threatening use of physical force, from following,

harassing, annoying, abusing, or tormenting his ex-girlfriend, and from going within 200

yards of his ex-girlfriend or her family (including their child), are plainly lawful and

enforceable.



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or threatened use of physical force against such intimate

partner or child that would reasonably be expected to cause

bodily injury . . . to . . . possess in or affecting commerce, any

firearm or ammunition . . . .



Rahimi moved to dismiss the indictment on the ground that § 922(g)(8) is

unconstitutional, but he acknowledged that United States v. McGinnis, 956

F.3d 747 (5th Cir. 2020), foreclosed his argument.



3



The district court denied

Rahimi's motion, and he pled guilty.

On appeal, Rahimi renewed his constitutional challenge to

§ 922(g)(8).



4



Rahimi again acknowledged that his argument was foreclosed,

and a prior panel of this court agreed. See Rahimi, 2022 WL 2070392 at *1

n.1. But after Bruen, the prior panel withdrew its opinion, ordered

supplemental briefing, and ordered the clerk to expedite this case for oral

argument before another panel of the court. Rahimi now contends that Bruen

overrules our precedent and that under Bruen, § 922(g)(8) is

unconstitutional. We agree on both points.

II.

Under the rule of orderliness, one panel of the Fifth Circuit "'may not

overturn another panel's decision, absent an intervening change in the law,

such as by a statutory amendment, or the Supreme Court, or our en banc

court.'” In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021)



3 The Government urged Rahimi's argument was also foreclosed by United States

v. Emerson, 270 F.3d 203 (5th Cir. 2001).



4 Rahimi also asserted that the district court erred when it ordered his federal

sentence to run consecutively to sentences for his state crimes because the underlying

conduct of the state sentences was relevant conduct for the purposes of U.S.S.G. § 1B1.3.

The prior panel affirmed the district court. Because we conclude that § 922(g)(8) is

unconstitutional and vacate Rahimi's sentence, we do not further address the sentencing

issue here.



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(quoting Jacobs v. Nat'l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).

The Supreme Court need not expressly overrule our precedent. "Rather, a

latter panel must simply determine that a former panel's decision has fallen

unequivocally out of step with some intervening change in the law.” Id.

"One situation in which this may naturally occur is where an intervening

Supreme Court decision fundamentally changes the focus of the relevant

analysis.” Id. (internal quotation marks and alterations omitted). That is the

case here, as the Government concedes.



In Emerson, we held that the Second Amendment guarantees an

individual right to keep and bear arms—the first circuit expressly to do so.

270 F.3d at 260. But we also concluded that § 922(g)(8) was constitutional

as applied to the defendant there. Id. at 263. "Emerson first considered the

scope of the Second Amendment right 'as historically understood,' and then

determined—presumably by applying some form of means-end scrutiny sub

silentio—that § 922(g)(8) [was] 'narrowly tailored' to the goal of minimizing

'the threat of lawless violence.'” McGinnis, 956 F.3d at 755 (quoting

Emerson, 270 F.3d at 264).



After D.C. v. Heller, 554 U.S. 570 (2008), courts coalesced around a

similar "two-step inquiry for analyzing laws that might impact the Second

Amendment.” McGinnis, 956 F.3d at 753 (internal quotation marks

omitted). First, we "ask[ed] whether the conduct at issue [fell] within the

scope of the Second Amendment right.” Id. at 754 (internal quotation marks

omitted). If the conduct fell outside the scope of the Second Amendment

right, then the challenged law was constitutional. Id. But if the conduct fell

within the scope of the right, then we proceeded to the second step of the

analysis, which applied either intermediate or strict scrutiny. Id. at 754, 757

(expressly applying means-end scrutiny). In McGinnis, this court upheld

§ 922(g)(8) using this two-step framework. The initial panel in this case did

likewise, citing McGinnis. Rahimi, 2022 WL 2070392 at *1 n.1.



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Enter Bruen. Expounding on Heller, the Supreme Court held that

"[w]hen the Second Amendment's plain text covers an individual's conduct,

the Constitution presumptively protects that conduct.” Bruen, 142 S. Ct. at

2129–30. In that context, the Government bears the burden of "justify[ing]

its regulation by demonstrating that it is consistent with the Nation's

historical tradition of firearm regulation.” Id. at 2130. Put another way, "the

[G]overnment must affirmatively prove that its firearms regulation is part of

the historical tradition that delimits the outer bounds of the right to keep and

bear arms.” Id. at 2127. In the course of its explication, the Court expressly

repudiated the circuit courts' means-end scrutiny—the second step

embodied in Emerson and applied in McGinnis. Id. at 2128–30. To the extent

that the Court did not overtly overrule Emerson and McGinnis—it did not cite

those cases but discussed other circuits' similar precedent—Bruen clearly

"fundamentally change[d]” our analysis of laws that implicate the Second

Amendment, Bonvillian Marine, 19 F.4th at 792, rendering our prior

precedent obsolete.



III.



Our review of Rahimi's facial challenge to § 922(g)(8) is de novo. See

United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir. 1997). First, the court

addresses the Government's argument that Rahimi is not among those

citizens entitled to the Second Amendment's protections. Concluding he is,

we then turn to whether § 922(g)(8) passes muster under Bruen's standard.



5



5 The Government also argues that because Bruen endorsed "shall-issue” licensing

schemes, and Texas's shall-issue licensing scheme (since modified to allow "constitutional

carry,” see 2021 Tex. Sess. Law Serv. Ch. 809 (West)) included the requirement that an

applicant not be under a domestic violence restraining order, it follows that § 922(g)(8) is

constitutional. Of course, the Bruen Court did not rule on the constitutionality of 43

specific state licensing regimes because that was not the issue before the Court. See Bruen,



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A.



According to the Government, Heller and Bruen add a gloss on the

Second Amendment that restricts its applicability to only "law-abiding,

responsible citizens,” Heller, 554 U.S. at 635, and "ordinary, law-abiding

citizens,” Bruen, 142 S. Ct. at 2122. Because Rahimi is neither responsible

nor law-abiding, as evidenced by his conduct and by the domestic violence

restraining order issued against him, he falls outside the ambit of the Second

Amendment. Therefore, argues the Government, § 922(g)(8) is

constitutional as applied to Rahimi.

The Second Amendment provides, simply enough:



A well regulated Militia, being necessary to the security of a

free State, the right of the people to keep and bear Arms, shall

not be infringed.



U.S. Const. amend. II. Heller explained that the words "the people” in

the Second Amendment have been interpreted throughout the Constitution

to "unambiguously refer[] to all members of the political community, not an

unspecified subset.” 554 U.S. at 580. Further, "the people” "refer[] to a

class of persons who are part of a national community or who have otherwise

developed sufficient connection with this country to be considered part of

that community.” Id. (citing United States v. Verdugo–Urquidez, 494 U.S.

259, 265 (1990)). For those reasons, the Heller Court began its analysis with

the "strong presumption that the Second Amendment right is exercised

individually and belongs to all Americans,” id. at 581, and then confirmed

that presumption, id. at 595. Heller's exposition of "the people” strongly

142 S. Ct. at 2138 n.9. Rather, the Court merely blessed the general concept of shall-issue

regimes. Id.



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indicates that Rahimi is included in "the people” and thus within the Second

Amendment's scope.



To be sure, as the Government argues, Heller and Bruen also refer to

"law-abiding, responsible citizens” in discussing the amendment's scope

(Bruen adds "ordinary, law-abiding citizens”). And there is some debate

over the extent to which the Court's "law-abiding” qualifier constricts the

Second Amendment's reach. Compare Kanter v. Barr, 919 F.3d 437, 451–53

(7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S. Ct. 2111,

with Binderup v. Att'y Gen., 836 F.3d 336, 357 (3d Cir. 2016) (en banc)

(Hardiman, J., concurring in part and concurring in the judgments). As

summarized by now-Justice Barrett, "one [approach] uses history and

tradition to identify the scope of the right, and the other uses that same body

of evidence to identify the scope of the legislature's power to take it away.”

Kanter, 919 F.3d at 452 (Barrett, J., dissenting). The Government's

argument that Rahimi falls outside the community covered by the Second

Amendment rests on the first approach. But it runs headlong into Heller and

Bruen, which we read to espouse the second one.



That reading, in turn, leads us to conclude that, in context, Heller

simply uses "law-abiding, responsible citizens” as shorthand in explaining

that its holding (that the amendment codifies an individual right to keep and

bear arms) should not "be taken to cast doubt on longstanding prohibitions

on the possession of firearms by felons and the mentally ill, or laws forbidding

the carrying of firearms in sensitive places such as schools and government

buildings . . . .” 554 U.S. at 626–27; accord Range v. Attorney Gen., 53 F.4th

262, 266 (3d Cir. 2022) (upholding 18 U.S.C. § 922(g)(1), which prohibits

firearm possession by convicted felons, because "the people” categorically

"excludes those who have demonstrated disregard for the rule of law through

the commission of felony and felony-equivalent offenses”), reh'g en banc

granted, opinion vacated, 56 F.4th 992 (3d Cir. 2023). In other words, Heller's



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reference to "law-abiding, responsible” citizens meant to exclude from the

Court's discussion groups that have historically been stripped of their

Second Amendment rights, i.e., groups whose disarmament the Founders

"presumptively” tolerated or would have tolerated. See 554 U.S. at 627, n.26

("We identify these presumptively lawful regulatory measures only as

examples; our list does not purport to be exhaustive.”). Bruen's reference to

"ordinary, law-abiding” citizens is no different. See 142 S. Ct. at 2134.

From the record before us, Rahimi did not fall into any such group at

the time he was charged with violating § 922(g)(8), so the "strong

presumption” that he remained among "the people” protected by the

amendment holds. When he was charged, Rahimi was subject to an agreed

domestic violence restraining order that was entered in a civil proceeding.

That alone does not suffice to remove him from the political community

within the amendment's scope. And, while he was suspected of other criminal

conduct at the time, Rahimi was not a convicted felon or otherwise subject to

another "longstanding prohibition[] on the possession of firearms” that

would have excluded him. Heller, 554 U.S. at 626–27; see Range, 53 F.4th at

273 (concluding that Heller, McDonald v. City of Chicago, Ill., 561 U.S. 742

(2010), and Bruen support that criminals, as a group, "fall[] outside 'the

people' . . . and that § 922(g)(1) is well-rooted in the nation's history and

tradition of firearm regulation”).6



6 This discussion is not to cast doubt on firearm restrictions that attach during

criminal proceedings prior to conviction. E.g., 18 U.S.C. § 922(n) (prohibiting person

under indictment from shipping, transporting, or receiving any firearm); 18 U.S.C.

§ 3142(c)(B)(viii) (allowing judicial officer to require person released on pretrial bond to

"refrain from possessing a firearm, destructive device, or other dangerous weapon”).

Those restrictions are not before us. We simply hew carefully to the Supreme Court's

delineation of who falls within, and without, the overarching class of "law-abiding,

responsible citizens” covered by the Second Amendment.



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Indeed, the upshot of the Government's argument is that the Second

Amendment right can be readily divested, such that "a person could be in

one day and out the next: . . . his rights would be stripped as a self-executing

consequence of his new status.” Kanter, 919 F.3d at 452 (Barrett, J.,

dissenting). But this turns the typical way of conceptualizing constitutional

rights on its head. And the Government's argument reads the Supreme

Court's "law-abiding” gloss so expansively that it risks swallowing the text

of the amendment. Cf. Bruen, 142 S. Ct. at 2156 ("The constitutional right

to bear arms in public for self-defense is not 'a second-class right, subject to

an entirely different body of rules than the other Bill of Rights guarantees.'”

(quoting McDonald, 561 U.S. at 780)).



Further, the Government's proffered interpretation of "law-abiding”

admits to no true limiting principle. Under the Government's reading,

Congress could remove "unordinary” or "irresponsible” or "non-lawabiding” 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 among "the people” entitled to the Second Amendment's

guarantees, all other things equal.



B.



Which brings us to the question of whether Rahimi's right to keep and

bear arms may be constitutionally restricted by operation of § 922(g)(8). The

parties dispute Rahimi's burden necessary to sustain his facial challenge to



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the statute. The Government contends that Rahimi "must establish that no

set of circumstances exists under which the Act would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987). Rahimi contests that assertion,

asserting during oral argument that the Government's interpretation of

Salerno has fallen out of favor, though he contends that in any event, he has

satisfied Salerno's standard.



Bruen instructs how to proceed. The plaintiffs there levied a facial

challenge to New York's public carry licensing regime. 142 S. Ct. at 2122.

To evaluate the challenged law, the Supreme Court employed a historical

analysis, aimed at "assess[ing] whether modern firearms regulations are

consistent with the Second Amendment's text and historical

understanding.” Id. at 2131. Construing Heller, the Court flatly rejected any

means-end scrutiny as part of this analysis, id. at 2129, such that if a statute

is inconsistent with the Second Amendment's text and historical

understanding, then it falls under any circumstances. Cf. Salerno, 481 U.S.

at 745; Freedom Path, Inc. v. Internal Revenue Serv., 913 F.3d 503, 508 (5th Cir.

2019) ("A facial challenge to a statute considers only the text of the statute

itself, not its application to the particular circumstances of an individual.”

(cleaned up)).



Bruen articulated two analytical steps: First, courts must determine

whether "the Second Amendment's plain text covers an individual's

conduct[.]” 142 S. Ct. at 2129–30. If so, then the "Constitution

presumptively protects that conduct,” and the Government "must justify its

regulation by demonstrating that it is consistent with the Nation's historical

tradition of firearm regulation.” Id. at 2130. "Only then may a court

conclude that the individual's conduct falls outside the Second

Amendment's unqualified command.” Id. (internal quotation marks

omitted).



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To carry its burden, the Government must point to "historical

precedent from before, during, and even after the founding [that] evinces a

comparable tradition of regulation.” Id. at 2131–32 (internal quotation marks

omitted). "[W]e are not obliged to sift the historical materials for evidence

to sustain [§ 922(g)(8)]. That is [the Government's] burden.” Id. at 2150.

The Government need not identify a "historical twin”; rather, a

"well-established and representative historical analogue” suffices. Id. at

2133. The Supreme Court distilled two metrics for courts to compare the

Government's proffered analogues against the challenged law: how the

challenged law burdens the right to armed self-defense, and why the law

burdens that right. Id. (citing McDonald, 561 U.S. at 767, and Heller, 544 U.S.

at 599). "[W]hether modern and historical regulations impose a comparable

burden on the right of armed self-defense and whether that burden is

comparably justified are central considerations when engaging in an

analogical inquiry.” Id. (internal quotation marks and emphasis omitted).

As to the degree of similarity required, "analogical reasoning under

the Second Amendment is neither a regulatory straightjacket nor a regulatory

blank check.” Id. "[C]ourts should not uphold every modern law that

remotely resembles a historical analogue, because doing so risks endorsing

outliers that our ancestors would never have accepted.” Id. (internal

quotation marks, alterations, and citations omitted). On the other hand,

"even if a modern-day regulation is not a dead ringer for historical

precursors, it still may be analogous enough to pass constitutional muster.”



Id. The core question is whether the challenged law and proffered analogue

are "relevantly similar.” Id. at 2132.



When the challenged regulation addresses a "general societal problem

that has persisted since the 18th century, the lack of a distinctly similar

historical regulation addressing that problem is relevant evidence that the



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challenged regulation is inconsistent with the Second Amendment.” Id. at

2131. Moreover, "if earlier generations addressed the societal problem, but

did so through materially different means, that also could be evidence that a

modern regulation is unconstitutional.” Id.



C.



Rahimi's possession of a pistol and a rifle easily falls within the

purview of the Second Amendment. The amendment grants him the right

"to keep” firearms, and "possession” is included within the meaning of

"keep.” See id. at 2134–35. And it is undisputed that the types of firearms

that Rahimi possessed are "in common use,” such that they fall within the

scope of the amendment. See id. at 2143 ("[T]he Second Amendment

protects only the carrying of weapons that are those 'in common use at the

time,' as opposed to those that 'are highly unusual in society at large.'”)

(quoting Heller, 554 U.S. at 627)). Thus, Bruen's first step is met, and the

Second Amendment presumptively protects Rahimi's right to keep the

weapons officers discovered in his home. See id. at 2126.



But Rahimi, like any other citizen, may have forfeited his Second

Amendment rights if his conduct ran afoul of a "lawful regulatory

measure[]” "prohibiting . . . the possession of firearms,” Heller, 554 U.S. at

626–27 & 627 n.26, that is consistent with "the historical tradition that

delimits the outer bounds of the right to keep and bear arms,” Bruen, 142 S.

Ct. at 2127. The question turns on whether § 922(g)(8) falls within that

historical tradition, or outside of it.



To reiterate, the statute makes it unlawful

for any person[] who is subject to a court order that[:] (A) was

issued after a hearing of which such person received actual

notice, and at which such person had an opportunity to

participate; (B) restrains such person from harassing, stalking,



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or threatening an intimate partner of such person or child of

such intimate partner or person, or engaging in other conduct

that would place an intimate partner in reasonable fear of bodily

injury to the partner or child; and (C)(i) includes a finding that

such person represents a credible threat to the physical safety

of such intimate partner or child; or (ii) by its terms explicitly

prohibits the use, attempted use, or threatened use of physical

force against such intimate partner or child that would

reasonably be expected to cause bodily injury . . . to . . . possess

in or affecting commerce, any firearm or ammunition . . . .

§ 922(g)(8); see McGinnis, 956 F.3d at 758 (stating that § 922(g)(8)'s purpose

is to reduce "domestic gun abuse”). Distilled to its essence, the provision

operates to deprive an individual of his right to possess (i.e., "to keep”)

firearms once a court enters an order, after notice and a hearing, that restrains

the individual "from harassing, stalking, or threatening an intimate partner”

or the partner's child. The order can rest on a specific finding that the

restrained individual poses a "credible threat” to an intimate partner or her

child. Or it may simply include a general prohibition on the use, attempted

use, or threatened use of physical force reasonably expected to cause bodily

injury. The covered individual forfeits his Second Amendment right for the

duration of the court's order. This is so even when the individual has not

been criminally convicted or accused of any offense and when the underlying

proceeding is merely civil in nature.



These characteristics crystallize "how” and "why” § 922(g)(8)

"burden[s] a law-abiding citizen's right to armed self-defense.” Bruen, 142

S. Ct. at 2133. In particular, we focus on these key features of the statute:

(1) forfeiture of the right to possess weapons (2) after a civil proceeding7



7 The distinction between a criminal and civil proceeding is important because

criminal proceedings have afforded the accused substantial protections throughout our

Nation's history. In crafting the Bill of Rights, the Founders were plainly attuned to



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(3) in which a court enters a protective order based on a finding of a "credible

threat” to another specific person, or that includes a blanket prohibition on

the use, of threatened use, of physical force, (4) in order to protect that

person from "domestic gun abuse.” The first three aspects go to how the

statute accomplishes its goal; the fourth is the statute's goal, the why.

To sustain § 922(g)(8)'s burden on Rahimi's Second Amendment

right, the Government bears the burden of proffering "relevantly similar”

historical regulations that imposed "a comparable burden on the right of

armed self-defense” that were also "comparably justified.” Id. at 2132–33.

And "when it comes to interpreting the Constitution, not all history is

created equal. Constitutional rights are enshrined with the scope they were

understood to have when the people adopted them.” Id. at 2136 (internal

quotation marks omitted). We thus afford greater weight to historical

analogues more contemporaneous to the Second Amendment's ratification.

The Government offers potential historical analogues to § 922(g)(8)

that fall generally into three categories: (1) English and American laws (and

sundry unadopted proposals to modify the Second Amendment) providing

for disarmament of "dangerous” people, (2) English and American "going

armed” laws, and (3) colonial and early state surety laws. We discuss in turn

why each of these historical regulations falters as "relevantly similar”

precursors to § 922(g)(8).



preservation of these protections. See U.S. Const. amend. IV; U.S. Const. amend. V;

U.S. Const. amend. VI; U.S. Const. amend. VIII. It is therefore significant that

§ 922(g)(8) works to eliminate the Second Amendment right of individuals subject merely

to civil process.



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1.



The Government relies on laws of varying antiquity as evidence of its

"dangerousness” analogues. We sketch these chronologically, mindful that

greater weight attaches to laws nearer in time to the Second Amendment's

ratification.



Under the English Militia Act of 1662, officers of the Crown could

"seize all arms in the custody or possession of any person” whom they

"judge[d] dangerous to the Peace of the Kingdom.” 13 & 14 Car. 2, c.3, § 13

(1662). Citing scholarship, the Government thus posits that "by the time of

American independence, England had established a well-practiced tradition

of disarming dangerous persons—violent persons and disaffected persons

perceived as threatening to the crown.” Joseph G.S. Greenlee, The Historical

Justification for Prohibiting Dangerous Persons from Possessing Firearms, 20

Wyo. L. Rev. 249, 261 (2020).



But the Militia Act's provenance demonstrates that it is not a

forerunner of our Nation's historical tradition of firearm regulation. Under

Charles I (who reigned 1625–1649), the Crown and Parliament contested for

control of the militia. Nelson Lund, The Past and Future of the Individual's

Right to Arms, 31 Ga. L. Rev. 1, 8 (1996). After the resulting civil war and

Oliver Cromwell's interregnum, the monarchy was restored in 1660 when

Charles II took the throne. Charles II began using the militia to disarm his

political opponents. Id. (citing J. Malcolm, To Keep and Bear

Arms: The Origins of an Anglo-American Right (1994) 35–

38 (1994). The Militia Act of 1662 facilitated this disarmament, which

escalated under the Catholic James II once he took the throne in 1685. Id.;

see Heller, 554 U.S. at 593 (noting that the disarmaments "caused

Englishmen . . . to be jealous of their arms”). After the Glorious Revolution,

which enthroned Protestants William and Mary, the Declaration of Rights,



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codified as the 1689 English Bill of Rights, qualified the Militia Act by

guaranteeing "[t]hat the subjects which are Protestants may have arms for

their defence suitable to their Conditions and as allowed by Law.” 1 W. &

M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. "This right,” which restricted the

Militia Act's reach in order to prevent the kind of politically motivated

disarmaments pursued by Charles II and James II, "has long been understood

to be the predecessor to our Second Amendment.” Heller, 554 U.S. at 593.

This understanding, and the history behind it, defeats any utility of the

Militia Act of 1662 as a historical analogue for § 922(g)(8).



The Government next points to laws in several colonies and states that

disarmed classes of people considered to be dangerous, specifically including

those unwilling to take an oath of allegiance, slaves, and Native Americans.

See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to

Keep Arms in Early America: The Legal Context of the Second Amendment, 25

Law & Hist. Rev. 139, 157–60 (2007). These laws disarmed people

thought to pose a threat to the security of the state due to their perceived lack

of loyalty or societal status. See Nat'l Rifle Ass'n of Am., Inc. v. Bureau of

Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 200–01 (5th Cir. 2012)

(discussing relevant scholarship), abrogated by Bruen, 142 S. Ct. at 2126–30.

"While public safety was a concern, most disarmament efforts were meant

to prevent armed rebellions. The early Americans adopted much of that

tradition in the colonies.” Greenlee, supra, at 261.



But we question at a threshold level whether colonial and state laws

disarming categories of "disloyal” or "unacceptable” people present tenable

analogues to § 922(g)(8). Laws that disarmed slaves, Native Americans, and

disloyal people may well have been targeted at groups excluded from the

political community—i.e., written out of "the people” altogether—as much

as they were about curtailing violence or ensuring the security of the state.

Their utility as historical analogues is therefore dubious, at best. In any



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event, these laws fail on substance as analogues to § 922(g)(8), because out

of the gate, why they disarmed people was different. The purpose of laws

disarming "disloyal” or "unacceptable” groups was ostensibly the

preservation of political and social order, not the protection of an identified

person from the threat of "domestic gun abuse,” McGinnis, 956 F.3d at 758,

posed by another individual. Thus, laws disarming "dangerous” classes of

people are not "relevantly similar” to § 922(g)(8) such that they can serve

as historical analogues.



Finally, the Government offers two proposals that emerged in state

ratification conventions considering the proposed Constitution. A minority

of Pennsylvania's convention authored a report in which they contended that

citizens have a right to bear arms "unless for crimes committed, or real danger

of public injury.” 2 Bernard Schwartz, The Bill of Rights: A

Documentary History 662, 665 (1971) (emphasis added). And at the

Massachusetts convention, Samuel Adams proposed a qualifier to the

Second Amendment that limited the scope of the right to "peaceable

citizens.” Id. at 681.



But these proposed amendments are not reflective of the Nation's

early understanding of the scope of the Second Amendment right. While

they were influential proposals, see Heller, 554 U.S. at 604, neither became

part of the Second Amendment as ratified. Thus, the proposals might

somewhat illuminate the scope of firearm rights at the time of ratification,

but they cannot counter the Second Amendment's text, or serve as an

analogue for § 922(g)(8) because, inter alia, they were not enacted. Cf.

Bruen, 142 S. Ct. at 2137 ("[T]o the extent later history contradicts what the

text [of the Second Amendment] says, the text controls.”).

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2.



The Government also relies on the ancient criminal offense of "going

armed to terrify the King's subjects.” Bruen, 142 S. Ct. at 2141 (alteration

and emphasis omitted). This common law offense persisted in America and

was in some cases codified. Id. at 2144. The Government offers four

exemplars codified in the Massachusetts Bay Colony, the state of Virginia,

and the colonies of New Hampshire and North Carolina.



The Massachusetts law provided "[t]hat every justice of the

peace . . . may cause to be staid and arrested all affrayers, rioters, disturbers

or breakers of the peace, and such as shall ride, or go armed

offensively . . . and upon view of such justice or justices, confession of the

party or other legal conviction of any such offence, shall commit the offender

to prison . . . and seize and take away his armor or weapons . . . .” 1 Acts and

Resolves, Public and Private, of the Province of the Massachusetts Bay, 52–

53 (1869) (1692 statute) (cleaned up). Similarly, the New Hampshire statute

authorized justices of the peace "upon view of such justice, confession of the

party, or legal proof of any such offense . . . [to] cause the [offender's] arms

or weapons to be taken away . . . .” Acts and Laws of His Majesty's Province

of New-Hampshire: In New-England; with Sundry Acts of Parliament, 17

(1771) (1701 statute); see Bruen, 142 S. Ct. at 2142–43 (noting that

Massachusetts and New Hampshire laws "were substantively identical”).



Virginia's law differed slightly: "[N]o man . . . [shall] go []or ride armed by

night or by day, in fairs or markets, or in other places, in terror of the country,

upon pain of being arrested and committed to prison by any justice on his

view, or proof of others, there to a time for so long a time as a jury, to be

sworn for that purpose by the said justice, shall direct, and in like manner to

forfeit his armour to the Commonwealth . . . .” Revised Code of the State of

Virginia: Collection of All Such Acts of the General Assembly of Virginia, of

a Public and Permanent Nature, as Are Now in Force, 554 (1819) (1786



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statute). North Carolina's colonial law was contained within its constable's

oath, which required constables to "arrest all such persons as, in your sight,

shall ride or go armed offensively, or shall commit or make any riot, affray, or

other breach of his Majesty's peace . . . .” Collection of All of the Public Acts

of Assembly of the Province of North-Carolina: Now in Force and Use, 131

(1751) (1741 statute) (cleaned up). While similarly aimed at curbing "going

armed offensively,” the North Carolina law did not provide for forfeiture.

These proffered analogues fall short for several reasons. An

overarching one is that it is doubtful these "going armed” laws are reflective

of our Nation's historical tradition of firearm regulation, at least as to

forfeiture of firearms. See Bruen, 142 S. Ct. at 2142 ("[W]e doubt that three

colonial regulations could suffice to show a tradition of public carry

regulation.”). North Carolina's law did not provide for forfeiture, so it

quickly falls out of the mix. And fairly early on, Massachusetts and Virginia

dropped forfeiture as a penalty, going the way of North Carolina and thereby

undercutting the Government's reliance on those laws. Indeed,

Massachusetts amended its law to remove the forfeiture provision in 1795,

just four years after the ratification of the Second Amendment. 2 Laws of the

Commonwealth of Massachusetts, from November 28, 1780 to February 28,

1807, 653 (1807) (statute enacted Jan. 29, 1795). Virginia had done so by

1847, shortly before the Commonwealth re-codified its laws in 1849. See

Code of Virginia: With the Declaration of Independence and Constitution of

the United States and the Declaration of Rights and Constitution of Virginia,

756 (1849).8



It is unclear how long New Hampshire's "going armed” law

preserved its forfeiture provision, but assuming arguendo it persisted longer

8 By the 1849 code, Virginia's going armed law had evolved into its anti-riot law

(chapter 195) and surety law (chapter 201). See id. Neither chapter provided for forfeiture

of an offender's weapons.



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than the others, one outlier is not enough "to show a tradition of public carry

regulation.” Bruen, 142 S. Ct. at 2142.



And on substance, the early "going armed” laws that led to weapons

forfeiture are not relevantly similar to § 922(g)(8). First, those laws only

disarmed an offender after criminal proceedings and conviction. By contrast,

§ 922(g)(8) disarms people who have merely been civilly adjudicated to be a

threat to another person—or, who are simply governed by a civil order that

"by its terms explicitly prohibits the use, attempted use, or threatened use of

physical force,” § 922(g)(8)(C)(ii), whether or not there is a "credible threat

to the physical safety” of anyone else, § 922(g)(8)(C)(i). Rahimi's domestic

violence restraining order satisfied both conditions; but it bears emphasis that

the order at issue here was entered by agreement, in a civil proceeding, after

Rahimi apparently waived hearing (the order states no formal hearing was

held, and no record was created), and without counsel or other safeguards

that would be afforded him in the criminal context. These distinctions alone

defeat the "going armed” laws as useful analogues for § 922(g)(8).



Moreover, the "going armed” laws, like the "dangerousness” laws

discussed above, appear to have been aimed at curbing terroristic or riotous

behavior, i.e., disarming those who had been adjudicated to be a threat to

society generally, rather than to identified individuals. And § 922(g)(8)

works to disarm not only individuals who are threats to other individuals but

also every party to a domestic proceeding (think: divorce court) who, with no

history of violence whatever, becomes subject to a domestic restraining order

that contains boilerplate language that tracks § 922(g)(8)(C)(ii). In other

words, where "going armed” laws were tied to violent or riotous conduct and

threats to society, § 922(g)(8) implicates a much wider swath of conduct, not

inherently dependent on any actual violence or threat. Thus, these "going

armed” laws are not viable historical analogues for § 922(g)(8).



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3.



Lastly, the Government points to historical surety laws. At common

law, an individual who could show that he had "just cause to fear” that

another would injure him or destroy his property could "demand surety of

the peace against such person.” 4 William Blackstone,

Commentaries on the Laws of England 252 (1769). The surety

"was intended merely for prevention, without any crime actually committed

by the party; but arising only from probable suspicion, that some crime [wa]s

intended or likely to happen.” Id. at 249. If the party of whom surety was

demanded refused to post surety, he would be forbidden from carrying a

weapon in public absent special need. See Bruen, 142 S. Ct. at 2148–49

(discussing operation of historical surety laws). Many jurisdictions codified

this tradition, either before ratification of the Bill of Rights or in early decades

thereafter.9



The surety laws come closer to being "relevantly similar” to

§ 922(g)(8) than the "dangerousness” and "going armed” laws discussed

supra. First, they are more clearly a part of our tradition of firearm regulation.

And they were "comparably justified,” id. at 2133, in that they were meant

to protect an identified person (who sought surety) from the risk of harm

posed by another identified individual (who had to post surety to carry arms).

9 E.g., 1 Acts and Resolves, Public and Private, of the Province of the Massachusetts

Bay, 52–53 (1869) (1692 statute); Acts and Laws of His Majesty's Province of NewHampshire: In New-England; with Sundry Acts of Parliament, 17 (1771) (1701 statute); 2



Statutes at Large of Pennsylvania from 1682 to 1801, pg. 23 (1896) (1700 statute); 1 Laws

of the State of Delaware from the Fourteenth Day of October, One Thousand Seven

Hundred, to the Eighteenth Day of August, One Thousand Seven Hundred and NinetySeven, pg. 52 (1797) (1700 statute); Acts and Laws of His Majesties Colony of Connecticut

in New-England 91 (1901) (1702 statute); see also Bruen, 142 S. Ct. at 2148 (stating that at

least ten jurisdictions enacted surety laws between 1836 and 1871).



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Put simply, the why behind historical surety laws analogously aligns with that

underlying § 922(g)(8).10



Aspects of how the surety laws worked resemble certain of the

mechanics of § 922(g)(8) as well. The surety laws required only a civil

proceeding, not a criminal conviction. The "credible threat” finding

required to trigger § 922(g)(8)(C)(i)'s prohibition on possession of weapons

echoes the showing that was required to justify posting of surety to avoid

forfeiture. But that is where the analogy breaks down: As the Government

acknowledges, historical surety laws did not prohibit public carry, much less

possession of weapons, so long as the offender posted surety. See also id. at

2149 (noting that there is "little evidence that authorities ever enforced

surety laws”). Where the surety laws imposed a conditional, partial

restriction on the Second Amendment right, § 922(g)(8) works an absolute

deprivation of the right, not only publicly to carry, but to possess any firearm,

upon entry of a sufficient protective order. And, as discussed supra,

§ 922(g)(8)(C)(ii) works that deprivation based on an order that "prohibits

the use, attempted use, or threatened use of physical force,” whether there

is a "just cause to fear” any harm, or not. At bottom, the historical surety

10 The parties spar somewhat over the required granularity of the underlying

problem in comparing § 922(g)(8) to proffered analogues. Rahimi contends more generally

that domestic violence was, and remains, a persistent social ill that society has taken

numerous actions against—though not disarmament. The Government counters that

"crime statistics from the founding era are hard to come by,” but that "there is reason to

doubt that domestic homicide was as prevalent at the founding as it is in the modern era.”

To be sure, historical surety laws were not targeted to domestic violence or even more

specifically to domestic homicide. But somewhat abstracting the laws' justifications, as we

do above the line, strikes us as consistent with Bruen's instruction that "even if a modernday regulation is not a dead ringer for historical precursors, it still may be analogous enough

to pass constitutional muster.” 142 S. Ct. at 2133.



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laws did not impose "a comparable burden on the right of armed selfdefense,” id. at 2133, as § 922(g)(8).



* * *



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.11



As a result,

§ 922(g)(8) falls outside the class of firearm regulations countenanced by the

Second Amendment.



11 Accord David B. Kopel & Joseph G. S. Greenlee, The Federal Circuits' Second

Amendment Doctrines, 61 St. Louis L.J. 193, 244 (2017) ("[T]here is simply no

tradition—from 1791 or 1866—of prohibiting gun possession (or voting, jury service, or

government service) for people convicted of misdemeanors or subject to civil protective

orders.”); Carolyn B. Ramsey, Firearms in the Family, 78 Ohio St. L.J. 1257, 1301 (2017)

("Historical support for the exclusion of domestic violence offenders from Second

Amendment protection appears rather thin.”); Keateon G. Hille, The Second Amendment:

From Miller to Chovan, and Why the Marzzarella Framework is the Best Shot Courts Have, 50

Gonz. L. Rev. 377, 392 (2015) (acknowledging that the "prohibition on firearms

possession by domestic violence misdemeanants is not longstanding” and advocating for a

means-ends test); Allen Rostron, Justice Breyer's Triumph in the Third Battle Over the

Second Amendment, 80 Geo. Wash. L. Rev. 703, 741 (2012) ("If longstanding tradition

is the key common characteristic of the items on the Heller list, modern legal innovations

like the ban on guns for domestic violence misdemeanants, however much they may reduce

risks and benefit society, do not qualify.”).



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IV.



Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals

meant to protect vulnerable people in our society. Weighing those policy

goals' merits through the sort of means-end scrutiny our prior precedent

indulged, we previously concluded that the societal benefits of § 922(g)(8)

outweighed its burden on Rahimi's Second Amendment rights. But Bruen

forecloses any such analysis in favor of a historical analogical inquiry into the

scope of the allowable burden on the Second Amendment right. Through

that lens, we conclude that § 922(g)(8)'s ban on possession of firearms is an

"outlier[] that our ancestors would never have accepted.” Id. Therefore,

the statute is unconstitutional, and Rahimi's conviction under that statute

must be vacated.



REVERSED; CONVICTION VACATED.



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James C. Ho, Circuit Judge, concurring:



The right to keep and bear arms has long been recognized as a

fundamental civil right. Blackstone saw it as an essential component of "'the

natural right'” to "'self-preservation and defence.'” District of Columbia v.

Heller, 554 U.S. 570, 593–94 (2008) (quoting 1 William Blackstone,

Commentaries on the Laws of England 139–40 (1765)). And

the Supreme Court has repeatedly analogized the Second Amendment to

other constitutional rights guaranteed to every American. See, e.g., Johnson

v. Eisentrager, 339 U.S. 763, 784 (1950) (describing the First, Second, Fourth,

Fifth, and Sixth Amendments as the "civil-rights Amendments”);

Konigsberg v. State Bar of Cal., 366 U.S. 36, 49–50 n.10 (1961) (comparing

"the commands of the First Amendment” to "the equally unqualified

command of the Second Amendment”); N.Y. State Rifle & Pistol Ass'n v.

Bruen, 142 S. Ct. 2111, 2126, 2130 (2022) (quoting Konigsberg).

But lower courts have routinely ignored these principles, treating the

Second Amendment as "a second-class right.” McDonald v. City of Chicago,

561 U.S. 742, 780 (2010) (plurality opinion). So the Supreme Court has now

commanded lower courts to be more forceful guardians of the right to keep

and bear arms, by establishing a new framework for lower courts to apply

under the Second Amendment.



"When the Second Amendment's plain text covers an individual's

conduct, the Constitution presumptively protects that conduct.” Bruen, 142

S. Ct. at 2129–30. "The government must then justify its regulation by

demonstrating that it is consistent with the Nation's historical tradition of

firearm regulation.” Id. at 2130. "[T]his historical inquiry that courts must

conduct will often involve reasoning by analogy—a commonplace task for

any lawyer or judge. Like all analogical reasoning, determining whether a

historical regulation is a proper analogue for a distinctly modern firearm



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regulation requires a determination of whether the two regulations are

'relevantly similar.'” Id. at 2132. This framework "is neither a regulatory

straightjacket nor a regulatory blank check.” Id. at 2133. It requires the

government to "identify a well-established and representative historical

analogue, not a historical twin.” Id.



Our court's decision today dutifully applies Bruen, and I join it in full.



I write separately to explain how respect for the Second Amendment is

entirely compatible with respect for our profound societal interest in

protecting citizens from violent criminals. Our Founders firmly believed in

both the fundamental right to keep and bear arms and the fundamental role

of government in combating violent crime.



I.



"[T]he right to keep and bear arms . . . has controversial public safety

implications.” Bruen, 142 S. Ct. at 2126 n.3 (quotations omitted). But it's

hardly "the only constitutional right” that does. Id. (quotations omitted,

emphasis added). To the contrary, "[a]ll of the constitutional provisions that

impose restrictions on law enforcement and on the prosecution of crimes fall

into the same category.” McDonald, 561 U.S. at 783 (plurality opinion).

So any legal framework that involves any of these constitutional

provisions can have significant and controversial public safety consequences.

A framework that under-protects a right unduly deprives citizens of liberty.

But a framework that over-protects a right unduly deprives citizens of

competing interests like public safety.



Take, for example, the exclusionary rule. See Mapp v. Ohio, 367 U.S.

643 (1961). Since its inception, the rule has been sharply criticized for overprotecting the accused and releasing dangerous criminals into our

neighborhoods. It's often said that nothing in the Constitution requires the

criminal to "go free because the constable has blundered.” Herring v. United



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States, 555 U.S. 135, 148 (2009) (quoting People v. Defore, 150 N.E. 585, 587

(N.Y. 1926)). "The exclusionary rule generates substantial social costs” by

"setting the guilty free and the dangerous at large.” Hudson v. Michigan, 547

U.S. 586, 591 (2006) (cleaned up).



The same can be said about Miranda v. Arizona, 384 U.S. 436 (1966).

The Supreme Court has "repeatedly referred to the Miranda warnings as

'prophylactic' and 'not themselves rights protected by the Constitution.'”

Dickerson v. United States, 530 U.S. 428, 437–38 (2000) (citations omitted).

What's more, "[i]n some unknown number of cases the Court's rule will

return a killer, a rapist or other criminal to the streets and to the environment

which produced him, to repeat his crime whenever it pleases him.” Miranda,

384 U.S. at 542 (White, J., dissenting).



So it's easy to see why decisions like Mapp and Miranda have been

criticized for over-protecting constitutional rights and harming public safety.

But there's a big difference between the first criticism and the second,

at least as far as the judiciary is concerned. It's our duty as judges to interpret

the Constitution based on the text and original understanding of the relevant

provision—not on public policy considerations, or worse, fear of public

opprobrium or criticism from the political branches. See, e.g., McDonald, 561

U.S. at 783 (plurality opinion) (finding "no case in which we have refrained

from holding that a provision of the Bill of Rights is binding on the States on

the ground that the right at issue has disputed public safety implications”);

Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2278 (2022) ("[W]e

cannot allow our decisions to be affected by any extraneous influences such

as concern about the public's reaction to our work.”); Mance v. Sessions, 896

F.3d 390, 405 (5th Cir. 2018) (Ho, J., dissenting from denial of rehearing en

banc) ("Constitutional rights must not give way to hoplophobia.”).



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And that's precisely the problem here: Members of the Supreme

Court have repeatedly criticized lower courts for disfavoring the Second

Amendment.1



The Supreme Court has now responded by setting forth a new

legal framework in Bruen. It is incumbent on lower courts to implement



Bruen in good faith and to the best of our ability.

Bruen calls on us to examine our Nation's history and traditions to

determine the meaning and scope of the Second Amendment. It's hardly the

first time that the Supreme Court has looked to history and tradition to

interpret constitutional provisions.2



And it surely won't be the last.



1 See, e.g., Silvester v. Becerra, 138 S. Ct. 945, 945 (2018) (Thomas, J., dissenting

from denial of certiorari) (bemoaning "lower courts' general failure to afford the Second

Amendment the respect due an enumerated constitutional right”); Peruta v. California, 137

S. Ct. 1995, 1999 (2017) (Thomas, J., joined by Gorsuch, J., dissenting from denial of

certiorari) (lamenting "distressing trend” of "the treatment of the Second Amendment as

a disfavored right”); Friedman v. City of Highland Park, 136 S. Ct. 447, 447 (2015) (Thomas,

J., joined by Scalia, J., dissenting from denial of certiorari) (criticizing "noncompliance with

our Second Amendment precedents” by "several Courts of Appeals”); Jackson v. City &

Cty. of San Francisco, 135 S. Ct. 2799, 2799 (2015) (Thomas, J., joined by Scalia, J.,

dissenting from denial of certiorari) ("lower courts, including the ones here, have failed to

protect [the Second Amendment right]”); id. at 2802 ("'A constitutional guarantee

subject to future judges' assessments of its usefulness is no constitutional guarantee at

all.'”) (quoting Heller, 554 U.S. at 634).



2 See, e.g., Myers v. United States, 272 U.S. 52, 109–76 (1926) (noting that "the

power of removal of executive officers . . . was presented early in the first session of the

First Congress,” known as the "decision of 1789,” and also surveying English and colonial

history and subsequent Congressional and Executive practice); Marsh v. Chambers, 463

U.S. 783, 786–92 (1983) (noting that "[t]he opening of sessions of legislative and other

deliberative public bodies with prayer is deeply embedded in the history and tradition of

this country” and surveying colonial history, the deliberations of the First Congress, and

"unambiguous and unbroken history of more than 200 years”); Crawford v. Washington,

541 U.S. 36, 43–50 (2004) (examining the "historical background” of the Confrontation

Clause, noting that "[t]he right to confront one's accusers is a concept that dates back to

Roman times,” and surveying English history and colonial and early state practice); United

States v. Stevens, 559 U.S. 460, 468–69 (2010) (reviewing "historic and traditional

categories” of speech that government has been allowed to regulate "[f]rom 1791 to the



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II.



Those who commit violence, including domestic violence, shouldn't

just be disarmed—they should be detained, prosecuted, convicted, and

incarcerated. And that's exactly why we have a criminal justice system—to

punish criminals and disable them from engaging in further crimes.

The Constitution presumes the existence of a criminal justice system.

See, e.g., U.S. Const. amends. V, VI (setting forth various rights of the

accused in criminal proceedings); U.S. Const. amend. VIII (prohibiting

cruel and unusual punishments). That system allows the government to deny

convicted criminals a wide range of liberties that it could not deny to

innocent, law-abiding citizens. For example, the government cannot deprive

innocent citizens of their liberty of movement. See, e.g., Williams v. Fears,

179 U.S. 270, 274 (1900); City of Chicago v. Morales, 527 U.S. 41, 53 (1999).

But it can certainly arrest and incarcerate violent criminals.

Arrest and incarceration naturally entail the loss of a wide range of

liberties—including the loss of access to weapons. See, e.g., Chimel v.

California, 395 U.S. 752, 762–63 (1969) ("When an arrest is made, it is

reasonable for the arresting officer to search the person arrested in order to

remove any weapons that the latter might seek to use in order to resist arrest

or effect his escape.”); State v. Buzzard, 4 Ark. 18, 21 (1842) (Ringo, C.J.)

("Persons accused of crime, upon their arrest, have constantly been divested

of their arms, without the legality of the act having ever been questioned.”).

The Supreme Court has also made clear that our Nation's history and

traditions include "longstanding prohibitions on the possession of firearms

present”); Timbs v. Indiana, 139 S. Ct. 682, 687–89 (2019) (observing that "[t]he Excessive

Fines Clause traces its venerable lineage back to at least 1215” and surveying authorities

from English history and colonial practice).



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by felons”—and that such measures are "presumptively lawful.” Heller, 554

U.S. at 626 & n.26. See also McDonald, 561 U.S. at 786 (plurality opinion)

("We made it clear in Heller that our holding did not cast doubt on such

longstanding regulatory measures as 'prohibitions on the possession of

firearms by felons,'” and "[w]e repeat those assurances here. . . .

[I]ncorporation does not imperil every law regulating firearms.”). So the

government can presumably disarm dangerous convicted felons, whether

they're incarcerated or not, without violating the Second Amendment.

The Second Amendment is not "a second-class right.” Bruen, 142 S.

Ct. at 2156. It is not "subject to an entirely different body of rules than the

other Bill of Rights guarantees.” Id. That principle guides us here: The

government can impose various restrictions on the rights of dangerous

convicted felons, consistent with our Nation's history and traditions—and

that includes the right to keep and bear arms.



III.



The power to incarcerate violent criminals is not just constitutionally

permissible—it's imperative to protecting victims. After all, anyone who's

willing to break the law when it comes to domestic violence is presumably

willing to break the law when it comes to guns as well. The only way to

protect the victim may be to detain as well as disarm the violent criminal.

For example, the government can detain and disarm, not just after

conviction, but also before trial. Pre-trial detention is presumed by the

Excessive Bail Clause and the Speedy Trial Clause. And it plays a significant

role in protecting citizens from violence, including domestic violence. See,

e.g., United States v. Salerno, 481 U.S. 739, 755 (1987) (permitting "the

detention prior to trial of arrestees charged with serious felonies who . . . pose

a threat to the safety of individuals or to the community”).



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In addition, the government can detain and disarm, based not just on

acts of violence, but criminal threats of violence as well. See, e.g., United

States v. Ackell, 907 F.3d 67 (1st Cir. 2018) (upholding criminal stalking law);

United States v. Gonzalez, 905 F.3d 165 (3rd Cir. 2018) (same); United States

v. Osinger, 753 F.3d 939 (9th Cir. 2014) (same); United States v. Petrovic, 701

F.3d 849 (8th Cir. 2012) (same); see also People v. Counterman, 497 P.3d 1039

(Colo. App. 2021) (same), cert. granted sub nom. Counterman v. Colorado, 143

S. Ct. 644 (2023). After all, to the victim, such actions are not only lifethreatening—they're life-altering, even if they don't eventually result in

violence.



IV.



18 U.S.C. § 922(g)(8) disarms individuals based on civil protective

orders—not criminal proceedings. As the court today explains, there is no

analogous historical tradition sufficient to support § 922(g)(8) under Bruen.

Moreover, there are additional reasons why disarmament based on

civil protective orders should give us pause. Scholars and judges have

expressed alarm that civil protective orders are too often misused as a tactical

device in divorce proceedings—and issued without any actual threat of

danger. That makes it difficult to justify § 922(g)(8) as a measure to disarm

dangerous individuals.



A.

"Many divorce lawyers routinely recommend pursuit of civil

protection orders for clients in divorce proceedings . . . as a tactical leverage

device.” Jeannie Suk, Criminal Law Comes Home, 116 Yale L.J. 2, 62 n.257

(2006). See also, e.g., Randy Frances Kandel, Squabbling in the Shadows: What

the Law Can Learn from the Way Divorcing Couples Use Protective Orders as

Bargaining Chips in Domestic Spats and Child Custody Mediation, 48 S.C. L.



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Rev. 441, 448 (1997) (civil protective orders are deployed as "an affirmative

element of divorce strategy”).



That's because civil protective orders can help a party in a divorce

proceeding to "secure [favorable] rulings on critical issues such as [marital

and child] support, exclusion from marital residence and property

disposition.” Murray v. Murray, 631 A.2d 984, 986 (N.J. Super. Ct. App.

Div. 1993). Protective orders can also be "a powerful strategic tool in custody

disputes.” Suk, supra, at 62.



That makes civil protective orders a tempting target for abuse. Judges

have expressed "concern[] . . . with the serious policy implications of

permitting allegations of . . . domestic violence” to be used in divorce

proceedings. Murray, 631 A.2d at 986. See also City of Seattle v. May, 256

P.3d 1161, 1166 n.1 (Wash. 2011) (Sanders, J., dissenting) (noting "the

growing trend to use protection orders as tactical weapons in divorce cases”).

And for good reason. "[N]ot all parties to divorce are above using [protective

orders] not for their intended purpose but solely to gain advantage in a

dissolution.” Scott A. Lerner, Sword or Shield? Combating Orders–of–

Protection Abuse in Divorce, 95 Ill. Bar J. 590, 591 (2007). Anyone who

is "willing to commit perjury can spend months or even years . . . planning to

file a domestic violence complaint at an opportune moment in order to gain

the upper hand in a divorce proceeding.” David N. Heleniak, The New Star

Chamber: The New Jersey Family Court and the Prevention of Domestic Violence

Act, 57 Rutgers L. Rev. 1009, 1014 (2005). So "[a] plaintiff willing to

exaggerate past incidents or even commit perjury can have access to a

responsive support group, a sympathetic court, and a litany of immediate

relief.” Peter Slocum, Biting the D.V. Bullet: Are Domestic-Violence

Restraining Orders Trampling on Second Amendment Rights?, 40 Seton

Hall L. Rev. 639, 662–63 (2010).



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Moreover, these concerns are exacerbated by the fact that judges are

too often ill-equipped to prevent abuse. Family court judges may face

enormous pressure to grant civil protective orders—and no incentive to deny

them. For example, family court judges may receive mandatory training in

which they're warned about "the unfavorable publicity” that could result if

they deny requests for civil protective orders. Id. at 668. As one judge has

noted, "[a] newspaper headline can be death to a municipal court judge's

career.” Id. at 667 n.213 (quotations omitted). So "the prospect of an

unfavorable newspaper headline is a frightening one.” Id. To quote another

judge: "Your job is not to become concerned about all the constitutional

rights of the [defendant] you're violating as you grant a restraining order.

Throw him out on the street, give him the clothes on his back and tell him,

'See ya' around.'” Id. at 668. Yet another judge said: "If there is any doubt

in your mind about what to do, you should issue the restraining order.” Id.

As a result, "[r]estraining orders . . . are granted to virtually all who

apply.” May, 256 P.3d at 1166 n.1 (Sanders, J., dissenting) (quotations

omitted). So there's a "tremendous” risk that courts will enter protective

orders automatically—despite the absence of any real threat of danger.

Heleniak, supra, at 1014. See generally Slocum, supra. In one case, for

example, a family court judge granted a restraining order on the ground that

the husband told his wife that he did not love her and was no longer attracted

to her. See Murray, 631 A.2d at 984. "There was no prior history of domestic

violence,” yet the judge issued the order anyway. Id. Another judge issued

a restraining order against David Letterman on the ground that his presence

on television harassed the plaintiff. See Todd Peterson, David Letterman

Fights Restraining Order, People (Dec. 21, 2005).



These orders were later rescinded. But the defendants were

nevertheless prohibited from possessing a firearm while the orders were in

effect, as a result of § 922(g)(8).



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B.



Moreover, the consequences of disarming citizens under § 922(g)(8)

may be especially perverse considering the common practice of "mutual”

protective orders.



In any domestic violence dispute, a judge may see no downside in

forbidding both parties from harming one another. A judge "may think that

mutual restraining orders are not substantially different from regular

restraining orders—after all, the goal is to keep the parties away from one

another so that the violence will not continue.” Jacquie Andreano, The

Disproportionate Effect of Mutual Restraining Orders on Same-Sex Domestic

Violence Victims, 108 Cal. L. Rev. 1047, 1054 (2020). "Judges may also

feel that issuing a mutual restraining order saves time because they do not

have to hear testimony and make a finding regarding which party is a primary

aggressor or even that one party has committed domestic violence.” Id.

But "[t]hese judicial assessments have often led to the issuance of

unmerited mutual restraining orders, namely in situations where one party is

the abuser and the other party is a victim.” Id. (emphasis added). As a result,

"both parties are restrained even if only one is an abuser.” Id. at 1055

(emphasis added). See also Elizabeth Topliffe, Why Civil Protection Orders

Are Effective Remedies for Domestic Violence but Mutual Protective Orders Are

Not, 67 Ind. L.J. 1039, 1055–56 (1992) ("[J]udges often issue a mutual

protection order without any request from the respondent or his lawyer. . . .

[J]udges and lawyers . . . may be tempted to resort to mutual protective orders

frequently. However, when they do this in cases where there truly is one

victim and one batterer, they ignore some of the real difficulties of mutual

protection orders.”). See generally David Hirschel, Nat'l

Criminal Justice Reference Serv., Domestic Violence



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Cases: What Research Shows About Arrest and Dual arrest Rates (2008).



The net result of all this is profoundly perverse, because it means that

§ 922(g)(8) effectively disarms victims of domestic violence. What's worse,

victims of domestic violence may even be put in greater danger than before.

Abusers may know or assume that their victims are law-abiding citizens who

will comply with their legal obligation not to arm themselves in self-defense

due to § 922(g)(8). Abusers might even remind their victims of the existence

of § 922(g)(8) and the entry of a mutual protective order to taunt and subdue

their victims. Meanwhile, the abusers are criminals who have already

demonstrated that they have zero propensity to obey the dictates of criminal

statutes. As a result, § 922(g)(8) effectively empowers and enables abusers

by guaranteeing that their victims will be unable to fight back.



* * *



We must protect citizens against domestic violence. And we can do

so without offending the Second Amendment framework set forth in Bruen.



Those who commit or criminally threaten domestic violence have

already demonstrated an utter lack of respect for the rights of others and the

rule of law. So merely enacting laws that tell them to disarm is a woefully

inadequate solution. Abusers must be detained, prosecuted, and

incarcerated. And that's what the criminal justice system is for. I concur.

Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted.” Id. Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.



REVERSED; CONVICTION VACATED.