Cite as: 602 U. S. ____ (2024) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 22–915
UNITED STATES, PETITIONER v. ZACKEY RAHIMI... View MoreCite as: 602 U. S. ____ (2024) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 22–915
UNITED STATES, PETITIONER v. ZACKEY RAHIMI
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 21, 2024]
JUSTICE THOMAS, dissenting.
After New York State Rifle & Pistol Assn., Inc. v. Bruen,
597 U. S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s
plain text is unconstitutional unless it is consistent with the
Nation’s historical tradition of firearm regulation. Not a
single historical regulation justifies the statute at issue, 18
U. S. C. §922(g)(8). Therefore, I respectfully dissent.
I
Section 922(g)(8) makes it unlawful for an individual who
is subject to a civil restraining order to possess firearms or
ammunition. To trigger §922(g)(8)’s prohibition, a restraining order must bear three characteristics. First, the order
issues after a hearing where the accused “received
actual notice” and had “an opportunity to participate.”
§922(g)(8)(A). Second, the order restrains the accused from
engaging in threatening behavior against an intimate partner or child. §922(g)(8)(B). Third, the order has either “a
finding that [the accused] represents a credible threat to
the physical safety of [an] intimate partner or child,” or an
“explici[t] prohibit[ion]” on “the use, attempted use, or
threatened use of physical force against [an] intimate partner or child.” §922(g)(8)(C). If those three characteristics
are present, §922(g)(8) automatically bans the individual
2 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
subject to the order from possessing “any firearm or ammunition.” §922(g).
Just as important as §922(g)(8)’s express terms is what it
leaves unsaid. Section 922(g)(8) does not require a finding
that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections.
See §§922(g)(1), (9). And, §922(g)(8) does not distinguish
contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both
parties seek a restraining order.
In addition, §922(g)(8) strips an individual of his ability
to possess firearms and ammunition without any due process.1 Rather, the ban is an automatic, uncontestable consequence of certain orders. See §922(g) (“It shall be unlawful for any [qualifying] person [to] possess in or affecting
commerce, any firearm or ammunition”). There is no hearing or opportunity to be heard on the statute’s applicability,
and a court need not decide whether a person should be disarmed under §922(g)(8). The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order.
Despite §922(g)(8)’s broad scope and lack of process, it
carries strong penalties. Any violation of §922(g)(8) is a felony punishable by up to 15 years’ imprisonment.
§924(a)(8); see also ante, at 3. And, a conviction for violating §922(g)(8) itself triggers a permanent, life-long prohibition on possessing firearms and ammunition. See
§922(g)(1).
In 2020, Zackey Rahimi and his ex-girlfriend, C. M., entered into a qualifying civil restraining order. App. 1. C. M.
had requested the order and asserted that Rahimi assaulted her. See id., at 2. Because the order found that
—————— 1Rahimi does not ask the Court to consider, and I do not address,
whether §922(g)(8) satisfies the Due Process Clause.
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THOMAS, J., dissenting
Rahimi presented a credible threat and prohibited him from
using physical force against C. M., the order automatically
triggered §922(g)(8)’s firearms ban. A year later, officers
discovered firearms in Rahimi’s home. Rahimi pleaded
guilty to violating §922(g)(8).
Before his guilty plea, Rahimi challenged his conviction
under the Second Amendment. He pointed to District of
Columbia v. Heller, 554 U. S. 570 (2008), which held that
the Second Amendment protects an individual right to keep
and bear firearms. Section 922(g)(8), Rahimi argued, violates that right by penalizing firearms possession. The District Court rejected Rahimi’s claim. At that time, the
Courts of Appeals, including the Fifth Circuit, applied a
form of means-end scrutiny to Second Amendment claims.
See, e.g., United States v. McGinnis, 956 F. 3d 747, 753–754
(2020). Applying Circuit precedent, the Fifth Circuit affirmed the District Court. 2022 WL 2070392 (2022).
Roughly two weeks later, this Court issued its opinion in
New York State Rifle & Pistol Assn., Inc. v. Bruen. The
Court rejected the means-end-scrutiny approach and laid
out the appropriate framework for assessing whether a firearm regulation is constitutional. Bruen, 597 U. S., at 17–
19. That framework requires the Government to prove that
the “regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
Id., at 19. The Fifth Circuit withdrew its opinion to apply
the correct framework to Rahimi’s claim. Relying on Bruen,
the Fifth Circuit concluded that the Government failed to
present historical evidence that §922(g)(8) “fits within our
Nation’s historical tradition of firearm regulation.” 61 F.
4th 443, 460 (2023). The Fifth Circuit, accordingly, vacated
Rahimi’s conviction. We granted certiorari. 600 U. S. ___
(2023).
II
The Second Amendment provides that “[a] well regulated
4 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.” As the Court recognizes, Bruen provides the
framework for analyzing whether a regulation such as
§922(g)(8) violates the Second Amendment’s mandate.
“[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects
that conduct.” 597 U. S., at 17. To overcome this presumption, “the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of
firearm regulation.” Ibid. The presumption against restrictions on keeping and bearing firearms is a central feature of the Second Amendment. That Amendment does not
merely narrow the Government’s regulatory power. It is a
barrier, placing the right to keep and bear arms off limits
to the Government.
When considering whether a modern regulation is consistent with historical regulations and thus overcomes the
presumption against firearms restrictions, our precedents
“point toward at least two metrics [of comparison]: how and
why the regulations burden a law-abiding citizen’s right to
armed self-defense.” Id., at 29. A historical law must satisfy both considerations to serve as a comparator. See ibid.
While a historical law need not be a “historical twin,” it
must be “well-established and representative” to serve as a
historical analogue. Id., at 30 (emphasis deleted).
In some cases, “the inquiry [is] fairly straightforward.”
Id., at 26. For instance, “when a 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 challenged regulation is inconsistent with the Second Amendment. Likewise, 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., at 26–27.
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THOMAS, J., dissenting
The Court employed this “straightforward” analysis in
Heller and Bruen. Heller considered the District of Columbia’s “flat ban on the possession of handguns in the home,”
Bruen, 597 U. S., at 27, and Bruen considered New York’s
effective ban on carrying a firearm in public, see id., at 11–
13. The Court determined that the District of Columbia
and New York had “addressed a perceived societal problem—firearm violence in densely populated communities—
and [they] employed a regulation . . . that the Founders
themselves could have adopted to confront that problem.”
Id., at 27. Accordingly, the Court “consider[ed] ‘foundingera historical precedent’” and looked for a comparable regulation. Ibid. (quoting Heller, 554 U. S., at 631). In both
cases, the Court found no such law and held the modern
regulations unconstitutional. Id., at 631; Bruen, 597 U. S.,
at 27.
Under our precedent, then, we must resolve two questions to determine if §922(g)(8) violates the Second Amendment: (1) Does §922(g)(8) target conduct protected by the
Second Amendment’s plain text; and (2) does the Government establish that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation?
III
Section 922(g)(8) violates the Second Amendment. First,
it targets conduct at the core of the Second Amendment—
possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal
problem as §922(g)(8) through the “materially different
means” of surety laws. Id., at 26.
A
It is undisputed that §922(g)(8) targets conduct encompassed by the Second Amendment’s plain text. After all,
6 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
the statute bans a person subject to a restraining order
from possessing or using virtually any firearm or ammunition. §922(g) (prohibiting covered individuals from “possess[ing]” or “receiv[ing] any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce”). A covered individual cannot even possess a
firearm in his home for self-defense, “the central component
of the [Second Amendment] right itself.” Heller, 554 U. S.,
at 599 (emphasis deleted). There is no doubt that §922(g)(8)
is irreconcilable with the Second Amendment’s text. Id., at
628–629.
It is also undisputed that the Second Amendment applies
to Rahimi. By its terms, the Second Amendment extends
to “‘the people,’” and that “term unambiguously refers to all
members of the political community, not an unspecified
subset.” Id., at 580. The Second Amendment thus recognizes a right “guaranteed to ‘all Americans.’” Bruen, 597
U. S., at 70 (quoting Heller, 554 U. S., at 581). Since Rahimi
is a member of the political community, he falls within the
Second Amendment’s guarantee.
B
The Government fails to carry its burden of proving that
§922(g)(8) is “consistent with the Nation’s historical tradition of firearm regulation.” 597 U. S., at 24. Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single
regulation with an analogous burden and justification.2
The Government’s failure is unsurprising given that
—————— 2 I agree with the majority that we need not address the “ ‘ongoing
scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope
of the right against the Federal Government).’ ” Ante, at 8, n. 1 (quoting
New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 37 (2022)).
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THOMAS, J., dissenting
§922(g)(8) addresses a societal problem—the risk of interpersonal violence—“that has persisted since the 18th century,” yet was addressed “through [the] materially different
means” of surety laws. Id., at 26. Surety laws were, in a
nutshell, a fine on certain behavior. If a person threatened
someone in his community, he was given the choice to either
keep the peace or forfeit a sum of money. Surety laws thus
shared the same justification as §922(g)(8), but they imposed a far less onerous burden. The Government has not
shown that §922(g)(8)’s more severe approach is consistent
with our historical tradition of firearm regulation.
1
The Government does not offer a single historical regulation that is relevantly similar to §922(g)(8). As the Court
has explained, the “central considerations” when comparing modern and historical regulations are whether the regulations “impose a comparable burden” that is “comparably
justified.” Id., at 29. The Government offers only two categories of evidence that are even within the ballpark of
§922(g)(8)’s burden and justification: English laws disarming persons “dangerous” to the peace of the kingdom, and
commentary discussing peaceable citizens bearing arms.
Neither category ultimately does the job.
i
The Government points to various English laws from the
late 1600s and early 1700s to argue that there is a tradition
of restricting the rights of “dangerous” persons. For example, the Militia Act of 1662 authorized local officials to disarm individuals judged “dangerous to the Peace of the Kingdome.” 14 Car. 2 c. 3, §13. And, in the early 1700s, the
Crown authorized lords and justices of the peace to “cause
search to be made for arms in the possession of any persons
whom they judge dangerous, and seize such arms according
to law.” Calendar of State Papers Domestic: William III,
8 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
1700–1702, p. 234 (E. Bateson ed. 1937) (Calendar William
III).
At first glance, these laws targeting “dangerous” persons
might appear relevant. After all, if the Second Amendment
right was historically understood to allow an official to disarm anyone he deemed “dangerous,” it may follow that
modern Congresses can do the same. Yet, historical context
compels the opposite conclusion. The Second Amendment
stems from English resistance against “dangerous” person
laws.
The sweeping disarmament authority wielded by English
officials during the 1600s, including the Militia Act of 1662,
prompted the English to enshrine an individual right to
keep and bear arms. “[T]he Stuart Kings Charles II and
James II succeeded in using select militias loyal to them to
suppress political dissidents, in part by disarming their opponents.” Heller, 554 U. S., at 592. Englishmen, as a result, grew “to be extremely wary of concentrated military
forces run by the state and to be jealous of their arms.” Id.,
at 593. Following the Glorious Revolution, they “obtained
an assurance . . . in the Declaration of Right (which was
codified as the English Bill of Rights), that Protestants
would never be disarmed.” Ibid.
The English Bill of Rights “has long been understood to
be the predecessor to our Second Amendment.” Ibid. In
fact, our Founders expanded on it and made the Second
Amendment even more protective of individual liberty. The
English Bill of Rights assured Protestants “Arms for their
Defence,” but only where “suitable to their Conditions and
as allowed by Law.” 1 Wm. & Mary, ch. 2, (1688), in 6 Statutes of the Realm 143. The Second Amendment, however,
contains no such qualifiers and protects the right of “the
people” generally. In short, laws targeting “dangerous” persons led to the Second Amendment. It would be passing
strange to permit the Government to resurrect those self-
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THOMAS, J., dissenting
same “dangerous” person laws to chip away at that Amendment’s guarantee.
Even on their own terms, laws targeting “dangerous” persons cannot support §922(g)(8). Those laws were driven by
a justification distinct from that of §922(g)(8)—quashing
treason and rebellion. The Stuart Kings’ reign was marked
by religious and political conflict, which at that time were
often one and the same. The Parliament of the late 1600s
“re-established an intolerant episcopalian church” through
legislation targeting other sects, including “[a] fierce penal
code” to keep those other sects out of local government and
“to criminalize nonconformist worship.” Oxford Handbook
of the English Revolution 212 (M. Braddick ed. 2015) (Oxford Handbook); see G. Clark, The Later Stuarts 1660–
1714, p. 22 (2d ed. 1955). These laws were driven in large
part by a desire to suppress rebellion. “Nonconformist ministers were thought to preach resistance to divinely ordained monarchs.” Oxford Handbook 212; see Calendar of
State Papers Domestic: Charles II, 1661–1662, p. 161 (M.
Green ed. 1861) (Calendar Charles II) (“[P]reachers go
about from county to county, and blow the flames of rebellion”). Various nonconformist insurrections gave credibility
to these fears. See, e.g., Clark, The Later Stuarts, at 22;
Privy Council to Lord Newport (Mar. 4, 1661), in Transactions of the Shropshire Archaeological and Natural History
Society, Pt. 2, 3d Ser., Vol. 4, p. 161 (1904).
It is in this turbulent context that the English kings permitted the disarming of “dangerous persons.” English lords
feared that nonconformists—i.e., people with “‘wicked and
Rebellious Principles’”—had “‘furnished themselves with
quantities of Arms, and Ammunition’” “‘to put in Execution
their Trayterus designs.’” Privy Council to Lord Newport
(Jan. 8, 1660), in id., at 156; see Calendar Charles II 541
(“The fanatics . . . are high and insolent, and threaten all
loyal people; they will soon be in arms”). In response, the
Crown took measures to root out suspected rebels, which
10 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
included “disarm[ing] all factious and seditious spirits.”
Id., at 538 (Nov. 1, 1662). For example, following “turbulency and difficulties” arising from the Conventicles Act of
1670, which forbade religious nonconformists from assembling, the lord mayor of London pressed that “a special warrant or commission [was] necessary” empowering commissioners to “resist, fight, kill, and execute such rebels.”
Calendar of State Papers, Domestic Series, 1670, p. 236
(May 25, 1670) (M. Green ed. 1895) (emphasis deleted).
King Charles II ordered the lord mayor “to make strict
search in the city and precincts for dangerous and disaffected persons, seize and secure them and their arms, and
detain them in custody till our further pleasure.” Id., at 237
(May 26, 1670).
History repeated itself a few decades later. In 1701, King
William III declared that “great quantities of arms, and
other provisions of war” had been discovered in the hands
of “papists and other disaffected persons, who disown [the]
government,” and that such persons had begun to assemble
“in great numbers . . . in the cities of London and Westminster.” Calendar William III 233. He ordered the lord mayor
of London and the justices of the peace to “secur[e] the government” by disarming “any persons whom they judge[d]
dangerous,” including “any papist, or reputed papist.” Id.,
at 233–234 (emphasis deleted). Similar disarmaments targeting “Papists and Non-jurors dangerous to the peace of
the kingdom” continued into the 1700s. Privy Council to
the Earl of Carlisle (July 30, 1714), in Historical Manuscripts Comm’n, Manuscripts of the Earl of Westmoreland
et al. 10th Report, Appx., Pt. 4, p. 343 (1885). As before,
disarmament was designed to stifle “wicked conspirac[ies],”
such as “raising a Rebellion in this Kingdom in favour of a
Popish Pretender.” Lord Lonsdale to Deputy Lieutenants
of Cumberland (May 20, 1722), in Historical Manuscripts
Commission, Manuscripts of the Earl of Carlisle, 15th Report, Appx., Pt. 6, pp. 39–40 (1897).
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THOMAS, J., dissenting
While the English were concerned about preventing insurrection and armed rebellion, §922(g)(8) is concerned
with preventing interpersonal violence. “Dangerous” person laws thus offer the Government no support.
ii
The Government also points to historical commentary referring to the right of “peaceable” citizens to carry arms. It
principally relies on commentary surrounding two failed
constitutional proposals.3 First, at the Massachusetts convention, Samuel Adams unsuccessfully proposed that the
Bill of Rights deny Congress the power “to prevent the people of the United States, who are peaceable citizens, from
keeping their own arms.” 6 Documentary History of the
Ratification of the Constitution 1453 (J. Kaminski & G.
Saladino eds. 2000) (Documentary History). Second, AntiFederalists at the Pennsylvania convention unsuccessfully
proposed a Bill of Rights providing a “right to bear arms for
the defense of themselves and their own state, or the United
States, or for the purpose of killing game.” 2 id., at 597–
598, ¶7 (M. Jensen ed. 1976). The Anti-Federalists’ Bill of
Rights would also state that “no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”
—————— 3The Government also cites an amendment to the Massachusetts Constitution providing that “the people have a right to keep and to bear Arms
for their Own and the Common defence.” The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780,
p. 624 (O. Handlin & M. Handlin eds. 1966). The Government emphasizes that the amendment’s proponents believed they “Ought Never to be
deprived” of their arms, so long as they “Continue[d] honest and Lawfull
Subjects of Government.” Ibid. Even if the amendment contemplated
disarming dishonest and unlawful subjects, the Government makes no
effort to define those terms or explain why they necessarily include the
individuals covered by §922(g)(8). In any event, evidence concerning
what proponents behind an amendment to a single state constitution believed is too paltry to define the Second Amendment right. See Bruen,
597 U. S., at 46.
12 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
Id., at 598.
These proposals carry little interpretative weight. To
begin with, it is “dubious to rely on [drafting] history to interpret a text that was widely understood to codify a preexisting right.” Heller, 554 U. S., at 603. Moreover, the
States rejected the proposals. Samuel Adams withdrew his
own proposal after it “alarmed both Federalists and Antifederalists.” 6 Documentary History 1453 (internal quotation marks omitted).4 The Pennsylvania Anti-Federalists’
proposal similarly failed to gain a majority of the state convention. 2 B. Schwartz, The Bill of Rights: A Documentary
History 628 (1971).
The Government never explains why or how language excluded from the Constitution could operate to limit the language actually ratified. The more natural inference seems
to be the opposite—the unsuccessful proposals suggest that
the Second Amendment preserves a more expansive right.
After all, the Founders considered, and rejected, any textual limitations in favor of an unqualified directive: “[T]he
right of the people to keep and bear Arms, shall not be infringed.”
In addition to the proposals, the Government throws in a
hodgepodge of sources from the mid-to-late 1800s that use
the phrase “peaceable” in relation to firearms. Many of the
sources simply make passing reference to the notion. See,
e.g., H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229
(1866) (proposed circular explaining freed slaves “have
shown by their peaceful and orderly conduct that they can
safely be trusted with fire-arms, and they need them to kill
game for subsistence”). Other sources are individual musings on firearms policy. See, e.g., The Sale of Pistols, N. Y.
Times, June 22, 1874 (advocating for “including pistols in
—————— 4When Anti-Federalists renewed Samuel Adams’ proposal, not only
did the proposal fail, but Adams himself voted against it. 6 Documentary
History 1453.
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THOMAS, J., dissenting
the law against carrying concealed weapons”). Sources that
do discuss disarmament generally describe nonpeaceable
citizens as those who threaten the public or government.
For example, the Government quotes a Union General’s order that “all loyal and peaceable citizens in Missouri will be
permitted to bear arms.” Headquarters, Dept. of the Missouri, General Orders, No. 86 (Aug. 25, 1863), in The War
of the Rebellion: A Compilation of the Official Records of the
Union and Confederate Armies, Ser. 1, Vol. 22, Pt. 2, p. 475
(1888). Yet, the Government fails to mention that the Union General’s order addresses the “[l]arge numbers of men
. . . leaving the broken rebel armies . . . and returning to
Missouri . . . with the purpose of following a career of plunder and murder.” Id., at 474. The order provided that “all
those who voluntarily abandon[ed] the rebel cause” could
return to Missouri, but only if they “surrender[ed] themselves and their arms,” “[took] the oath of allegiance and
[gave] bond for their future good conduct.” Ibid. By contrast, “all loyal and peaceable citizens in Missouri w[ere]
permitted to bear arms” to “protect themselves from violence” and “aid the troops.” Id., at 475. Thus, the term
“loyal and peaceable” distinguished between the former rebels residing in Missouri who were disarmed to prevent rebellion and those citizens who would help fight against
them.
The Government’s smorgasbord of commentary proves
little of relevance, and it certainly does not establish a “historical tradition that delimits the outer bounds of the right
to keep and bear arms.” Bruen, 597 U. S., at 19.
iii
The Government’s remaining evidence is even further
afield. The Government points to an assortment of firearm
regulations, covering everything from storage practices to
treason and mental illness. They are all irrelevant for purposes of §922(g)(8). Again, the “central considerations”
14 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
when comparing modern and historical regulations are
whether they “impose a comparable burden” that is “comparably justified.” Id., at 29 (emphasis deleted; internal
quotation marks omitted). The Government’s evidence
touches on one or none of these considerations.
The Government’s reliance on firearm storage laws is a
helpful example. These laws penalized the improper storage of firearms with forfeiture of those weapons. See, e.g.,
Act of Mar. 1, 1783, ch. 46, 1782 Mass. Acts pp. 119–120.
First, these storage laws did not impose a “comparable burden” to that of §922(g)(8). Forfeiture still allows a person to
keep their other firearms or obtain additional ones. It is in
no way equivalent to §922(g)(8)’s complete prohibition on
owning or possessing any firearms.
In fact, the Court already reached a similar conclusion in
Heller. The Court was tasked with comparing laws imposing “a small fine and forfeiture of the weapon” with the District of Columbia’s ban on keeping functional handguns at
home for self-defense, which was punishable by a year in
prison. 554 U. S., at 633–634. We explained that the forfeiture laws were “akin to modern penalties for minor public-safety infractions like speeding or jaywalking.” Id., at
633. Such inconsequential punishment would not have
“prevented a person in the founding era from using a gun
to protect himself or his family.” Id., at 634. Accordingly,
we concluded that the burdens were not equivalent. See id.,
at 633–634. That analysis applies here in full force. If a
small fine and forfeiture is not equivalent to the District of
Columbia’s handgun ban, it certainly falls short of
§922(g)(8)’s ban on possessing any firearm.
The Government resists the conclusion that forfeiture is
less burdensome than a possession ban, arguing that “[t]he
burdens imposed by bans on keeping, bearing, and obtaining arms are all comparable.” Reply Brief 10. But, there is
surely a distinction between having no Second Amendment
rights and having some Second Amendment rights. If self-
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THOMAS, J., dissenting
defense is “the central component of the [Second Amendment] right,” then common sense dictates that it matters
whether you can defend yourself with a firearm anywhere,
only at home, or nowhere. Heller, 554 U. S., at 599 (emphasis deleted). And, the Government’s suggestion ignores that
we have repeatedly drawn careful distinctions between various laws’ burdens. See, e.g., id., at 632 (explaining that
laws that “did not clearly prohibit loaded weapons . . . do
not remotely burden the right of self-defense as much as an
absolute ban on handguns”); see also Bruen, 597 U. S., at
48.
Our careful parsing of regulatory burdens makes sense
given that the Second Amendment codifies a right with a
“historically fixed meaning.” Id., at 28. Accordingly, history is our reference point and anchor. If we stray too far
from it by eliding material differences between historical
and modern laws, we “risk endorsing outliers that our ancestors would never have accepted.” Id., at 30 (internal quotation marks and alteration omitted).
Second, the Government offers no “comparable justification” between laws punishing firearm storage practices and
§922(g)(8). It posits that both laws punish persons whose
“conduct suggested that he would not use [firearms] responsibly.” Brief for United States 24. The Government, however, does not even attempt to ground that justification in
historical evidence. See infra, at 28–29.
The Government’s proposed justification is also far too
general. Nearly all firearm regulations can be cast as preventing “irresponsible” or “unfit” persons from accessing
firearms. In addition, to argue that a law limiting access to
firearms is justified by the fact that the regulated groups
should not have access to firearms is a logical merry-goround. As the Court has made clear, such overly broad
judgments cannot suffice. In Bruen, New York claimed it
could effectively ban public carry because “the island of
Manhattan [is] a ‘sensitive place.’” 597 U. S., at 31. New
16 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
York defined a “sensitive place” as “all places where people
typically congregate and where law-enforcement and other
public-safety professionals are presumptively available.”
Id., at 30–31 (internal quotation marks omitted). The
Court rejected that definition as “far too broa[d]” as it
“would in effect exempt cities from the Second Amendment
and would eviscerate the general right to publicly carry
arms for self-defense.” Id., at 31. Likewise, calling a modern and historical law comparably justified because they
both prevent unfit persons from accessing firearms would
render our comparable-justification inquiry toothless.5
In sum, the Government has not identified any historical
regulation that is relevantly similar to §922(g)(8).
2
This dearth of evidence is unsurprising because the
Founders responded to the societal problem of interpersonal violence through a less burdensome regime: surety
laws. Tracing back to early English history, surety laws
were a preventative mechanism for ensuring an individual’s future peaceable conduct. See D. Feldman, The King’s
Peace, the Royal Prerogative and Public Order, 47 Cambridge L. J. 101, 101–102 (1988); M. Dalton, The Countrey
Justice 140–144 (1619). If someone received a surety demand, he was required to go to a court or judicial officer
—————— 5The Government’s other analogies suffer from the same flaws as the
firearm storage laws. It cites laws restricting firearm sales to and public
carry by various groups such as minors and intoxicated persons; laws
confiscating firearms from rioters; and laws disarming insurrectionists
and rebels. Brief for United States 22–27. These laws target different
groups of citizens, for different reasons, and through different, less onerous burdens than §922(g)(8). See Bruen, 597 U. S., at 70 (explaining that
regulations “limit[ing] the intent for which one could carry arms, the
manner by which one carried arms, or the exceptional circumstances under which one could not carry arms” do not justify “broadly prohibit[ing]
the public carry of commonly used firearms for personal defense”). None
establishes that the particular regulation at issue here would have been
within the bounds of the pre-existing Second Amendment right.
Cite as: 602 U. S. ____ (2024) 17
THOMAS, J., dissenting
with one or more members of the community—i.e., sureties—and comply with certain conditions. 4 W. Blackstone,
Commentaries on the Laws of England 249–250 (1769)
(Blackstone). Specifically, the person providing sureties
was required to “keep the peace: either generally . . . or . . .
with regard to the person who crave[d] the security” until a
set date. Id., at 250. If he kept the peace, the surety obligation dissolved on that predetermined date. See ibid. If,
however, he breached the peace before that date, he and his
sureties would owe a set sum of money. See id., at 249–250.
Evidence suggests that sureties were readily available.
Even children, who “[we]re incapable of engaging themselves to answer any debt,” could still find “security by their
friends.” Id., at 251.
There is little question that surety laws applied to the
threat of future interpersonal violence. “[W]herever any
private man [had] just cause to fear, that another w[ould]
burn his house, or do him a corporal injury, by killing, imprisoning, or beating him . . . he [could] demand surety of
the peace against such person.” Id., at 252; see also J.
Backus, The Justice of the Peace 25 (1816) (providing for
sureties when a person “stands in fear of his life, or of some
harm to be done to his person or his estate” (emphasis deleted)).
Surety demands were also expressly available to prevent
domestic violence. Surety could be sought by “a wife
against her husband who threatens to kill her or beat her
outrageously, or, if she have notorious cause to fear he will
do either.” Id., at 24; see 1 W. Hawkins, Pleas of the Crown
253 (6th ed. 1777) (“t is certain, that a wife may demand
[a surety] against her husband threatening to beat her outrageously, and that a husband also may have it against his
wife”). The right to demand sureties in cases of potential
domestic violence was recognized not only by treatises, but
also the founding-era courts. Records from before and after
the Second Amendment’s ratification reflect that spouses
18 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
successfully demanded sureties when they feared future domestic violence. See, e.g., Records of the Courts of Quarter
Sessions and Common Pleas of Bucks County, Pennsylvania, 1684–1700, pp. 80–81 (1943) (detailing surety demanded upon allegations that a husband was “abusive to
[his wife] that she was afraid of her Life & of her Childrns
lifes”); see also Heyn’s Case, 2 Ves. & Bea. 182, 35 Eng. Rep.
288 (Ch. 1813) (1822) (granting wife’s request to order her
husband who committed “various acts of ill usage and
threats” to “find sufficient sureties”); Anonymous, 1
S. C. Eq. 113 (1785) (order requiring husband to “enter into
recognizance . . . with two sureties . . . for keeping the peace
towards the complainant (his wife)”).
3
Although surety laws shared a common justification with
§922(g)(8), surety laws imposed a materially different burden. Critically, a surety demand did not alter an individual’s right to keep and bear arms. After providing sureties,
a person kept possession of all his firearms; could purchase
additional firearms; and could carry firearms in public and
private. Even if he breached the peace, the only penalty
was that he and his sureties had to pay a sum of money. 4
Blackstone 250. To disarm him, the Government would
have to take some other action, such as imprisoning him for
a crime. See Feldman, 47 Cambridge L. J., at 101.
By contrast, §922(g)(8) strips an individual of his Second
Amendment right. The statute’s breadth cannot be overstated. For one, §922(g) criminalizes nearly all conduct related to covered firearms and ammunition. Most fundamentally, possession is prohibited, except in the rarest of
circumstances. See, e.g., United States v. Rozier, 598 F. 3d
768, 771 (CA11 2010) (per curiam) (concluding that it was
“irrelevant” whether defendant “possessed the handgun for
purposes of self-defense (in his home)”); United States v.
Cite as: 602 U. S. ____ (2024) 19
THOMAS, J., dissenting
Gant, 691 F. 2d 1159, 1162 (CA5 1982) (affirming conviction of a business owner under §922(g) predecessor statute
for briefly possessing a firearm to ward off suspected robbers). Courts of Appeals have understood “possession”
broadly, upholding convictions where a person “picked up
. . . three firearms for a few seconds to inspect” each, United
States v. Matthews, 520 F. 3d 806, 807 (CA7 2008), or “made
direct contact with the firearm by sitting on it,” United
States v. Johnson, 46 F. 4th 1183, 1189 (CA10 2022). They
have also construed §922(g) to bar “constructive possession”
of a firearm, including, for example, ammunition found in a
jointly occupied home. See, e.g., United States v. Stepp, 89
F. 4th 826, 832–835 (CA10 2023).
Moreover, §922(g) captures virtually all commercially
available firearms and ammunition. It prohibits possessing
a firearm “in or affecting commerce” and “receiv[ing] any
firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” §922(g). As
courts have interpreted that nexus, if a firearm or ammunition has at any point crossed interstate lines, it is regulated by §922(g). See Scarborough v. United States, 431
U. S. 563, 566–567 (1977) (holding §922(g)’s predecessor
statute covered firearm that “had previously traveled in interstate commerce”); United States v. Lemons, 302 F. 3d
769, 772 (CA7 2002) (affirming conviction under §922(g)
for possessing firearm that “crossed into Wisconsin after
its manufacture at some indeterminate moment in time—
possibly years before it was discovered in [the defendant’s]
possession”).6 In fact, the statute goes even further by regulating not only ammunition but also all constituent parts
—————— 6The majority correctly declines to consider Rahimi’s Commerce
Clause challenge because he did not raise it below. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of
first view”). That said, I doubt that §922(g)(8) is a proper exercise of
Congress’s power under the Commerce Clause. See United States v.
Lopez, 514 U. S. 549, 585 (1995) (THOMAS, J., concurring).
20 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
of ammunition—many of which are parts with no dangerous function on their own. See 18 U. S. C. §921(a)(17)(A).
These sweeping prohibitions are criminally enforced. To
violate the statute is a felony, punishable by up to 15 years.
§924(a)(8). That felony conviction, in turn, triggers a permanent, life-long prohibition on exercising the Second
Amendment right. See §922(g)(1).
The combination of the Government’s sweeping view of
the firearms and ammunition within its regulatory reach
and the broad prohibition on any conduct regarding covered
firearms and ammunition makes §922(g)(8)’s burden unmistakable: The statute revokes a citizen’s Second Amendment right while the civil restraining order is in place. And,
that revocation is absolute. It makes no difference if the
covered individual agrees to a no-contact order, posts a
bond, or even moves across the country from his former domestic partner—the bar on exercising the Second Amendment right remains. See United States v. Wilkey, 2020 WL
4464668, *1 (D Mont., Aug. 4, 2020) (defendant agreed to
Florida protection order so he could “‘just walk away’” and
was prosecuted several years later for possessing firearms
in Montana).
That combination of burdens places §922(g)(8) in an entirely different stratum from surety laws. Surety laws preserve the Second Amendment right, whereas §922(g)(8)
strips an individual of that right. While a breach of a surety
demand was punishable by a fine, §922(g)(8) is punishable
by a felony conviction, which in turn permanently revokes
an individual’s Second Amendment right. At base, it is difficult to imagine how surety laws can be considered relevantly similar to a complete ban on firearm ownership, possession, and use.
This observation is nothing new; the Court has already
recognized that surety laws impose a lesser relative burden
on the Second Amendment right. In Bruen, the Court ex-
Cite as: 602 U. S. ____ (2024) 21
THOMAS, J., dissenting
plained that surety laws merely “provide financial incentives for responsible arms carrying.” 597 U. S., at 59. “[A]n
accused arms-bearer ‘could go on carrying without criminal
penalty’ so long as he ‘post[ed] money that would be forfeited if he breached the peace or injured others.’” Id., at
56–57 (quoting Wrenn v. District of Columbia, 864 F. 3d
650, 661 (CADC 2017); alteration in original). As a result,
we held that surety laws were not analogous to New York’s
effective ban on public carry. 597 U. S., at 55. That conclusion is damning for §922(g)(8), which burdens the Second
Amendment right even more with respect to covered individuals.
Surety laws demonstrate that this case should have been
a “straightforward” inquiry. Id., at 27. The Government
failed to produce a single historical regulation that is relevantly similar to §922(g)(8). Rather, §922(g)(8) addresses a
societal problem—the risk of interpersonal violence—“that
has persisted since the 18th century,” yet was addressed
“through [the] materially different means” of surety laws.
Id., at 26.
C
The Court has two rejoinders, surety and affray laws.
Neither is a compelling historical analogue. As I have explained, surety laws did not impose a burden comparable to
§922(g)(8). And, affray laws had a dissimilar burden and
justification. The Court does not reckon with these vital
differences, asserting that the disagreement is whether
surety and affray laws must be an exact copy of §922(g)(8).
Ante, at 16. But, the historical evidence shows that those
laws are worlds—not degrees—apart from §922(g)(8). For
this reason, the Court’s argument requires combining aspects of surety and affray laws to justify §922(g)(8). This
piecemeal approach is not what the Second Amendment or
our precedents countenance.
22 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
1
Despite the foregoing evidence, the Court insists that
surety laws in fact support §922(g)(8). To make its case, the
Court studiously avoids discussing the full extent of
§922(g)(8)’s burden as compared to surety laws. The most
the Court does is attack Bruen’s conclusion that surety laws
were less burdensome than a public carry ban. The Court
reasons that Bruen dealt with a “broad prohibitory regime”
while §922(g)(8) applies to only a subset of citizens. Ante,
at 15–16. Yet, that was only one way in which Bruen distinguished a public carry ban from surety laws’ burden.
True, Bruen noted that, unlike the public carry ban, surety
laws did not restrict the general citizenry. But, Bruen also
plainly held that surety laws did not “constitut[e] a ‘severe’
restraint on public carry, let alone a restriction tantamount
to a ban.” 597 U. S., at 59. In fact, that conclusion is repeated throughout the opinion. Id., at 55–59 (surety laws
“were not bans on public carry”; “surety laws did not prohibit public carry”; surety laws “were not viewed as substantial restrictions on public carry”; and “surety statutes
did not directly restrict public carry”). Bruen’s conclusion
is inescapable and correct. Because surety laws are not
equivalent to an effective ban on public carry, they do not
impose a burden equivalent to a complete ban on carrying
and possessing firearms.
Next, the Court relies on affray laws prohibiting “riding
or going armed, with dangerous or unusual weapons, [to]
terrif[y] the good people of the land.” 4 Blackstone 149 (emphasis deleted). These laws do not justify §922(g)(8) either.
As the Court concedes, why and how a historical regulation
burdened the right of armed self-defense are central considerations. Ante, at 7. Affray laws are not a fit on either basis.
First, affray laws had a distinct justification from
§922(g)(8) because they regulated only certain public conduct that injured the entire community. An affray was a
Cite as: 602 U. S. ____ (2024) 23
THOMAS, J., dissenting
“common Nusanc[e],” 1 Hawkins, Pleas of the Crown, at
135, defined as “the fighting of two or more persons in some
public place, to the terror of his majesty’s subjects,” 4 Blackstone 145. Even though an affray generally required “actual violence,” certain other conduct could suffice. 1 R.
Burn, The Justice of the Peace, and Parish Officer 13 (2d
ed. 1756). As relevant here, an affray included arming oneself “with dangerous and unusual weapons, in such a manner as [to] naturally cause a terror to the people”—i.e., “going armed.” Ibid. Many postfounding going armed laws
had a self-defense exception: A person could “go armed with
a[n] . . . offensive and dangerous weapon” so long as he had
“reasonable cause to fear an assault or other injury.” Mass.
Rev. Stat., ch. 134, §16 (1836); see also 1838 Terr. of Wis.
Stat. §16, p. 381; 1851 Terr. of Minn. Rev. Stat., ch. 112,
§18.
Affrays were defined by their public nature and effect.
An affray could occur only in “some public place,” and captured only conduct affecting the broader public. 4 Blackstone 145. To that end, going armed laws did not prohibit
carrying firearms at home or even public carry generally.
See Bruen, 597 U. S., at 47–50. Instead, they targeted only
public carry that was “accompanied with such circumstances as are apt to terrify the people.” 1 Burn, Justice of
the Peace, at 13; see Bruen, 597 U. S., at 50 (explaining that
going armed laws “prohibit bearing arms in a way that
spreads ‘fear’ or ‘terror’ among the people”).
Affrays were intentionally distinguished from assaults
and private interpersonal violence on that same basis. See
Cash v. State, 2 Tenn. 198, 199 (1813) (“It is because the
violence is committed in a public place, and to the terror of
the people, that the crime is called an affray, instead of assault and battery”); Nottingham v. State, 227 Md. App. 592,
602, 135 A. 3d 541, 547 (Md. 2016) (“nlike assault and
battery,” affray is “not a crime against the person; rather,
affray is a crime against the public” (internal quotation
24 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
marks omitted)). As treatises shortly before the founding
explain, “there may be an Assault which will not amount to
an Affray; as where it happens in a private Place, out of the
hearing or seeing of any, except the Parties concerned; in
which Case it cannot be said to be to the Terror of the People.” 1 Hawkins, Pleas of the Crown, at 134; see 1 Burn,
Justice of the Peace, at 13. Affrays thus did not cover the
very conduct §922(g)(8) seeks to prevent—interpersonal violence in the home.
Second, affray laws did not impose a burden analogous to
§922(g)(8). They regulated a niche subset of Second
Amendment-protected activity. As explained, affray laws
prohibited only carrying certain weapons (“dangerous and
unusual”) in a particular manner (“terrifying the good people of the land” without a need for self-defense) and in particular places (in public). Meanwhile, §922(g)(8) prevents a
covered person from carrying any firearm or ammunition,
in any manner, in any place, at any time, and for any reason. Section 922(g)(8) thus bans all Second Amendmentprotected activity. Indeed, this Court has already concluded that affray laws do not impose a burden “analogous
to the burden created by” an effective ban on public carry.
Bruen, 597 U. S., at 50. Surely, then, a law that imposes a
public and private ban on a covered individual cannot have
an analogous burden either.
The Court counters that since affray laws “provided for
imprisonment,” they imposed a lesser burden than
§922(g)(8)’s disarmament. Ante, at 14. But, that argument
serves only to highlight another fundamental difference:
Affray laws were criminal statutes that penalized past behavior, whereas §922(g)(8) is triggered by a civil restraining
order that seeks to prevent future behavior. Accordingly,
an affray’s burden was vastly harder to impose. To imprison a person, a State had to prove that he committed the
crime of affray beyond a reasonable doubt. The Constitu-
Cite as: 602 U. S. ____ (2024) 25
THOMAS, J., dissenting
tion provided a bevy of protections during that process—including a right to a jury trial, counsel, and protections
against double jeopardy. See Amdts. 5, 6.
The imposition of §922(g)(8)’s burden, however, has far
fewer hurdles to clear. There is no requirement that the
accused has actually committed a crime; instead, he need
only be prohibited from threatening or using force, or pose
a “credible threat” to an “intimate partner or child.”
§922(g)(8)(C). Section 922(g)(8) thus revokes a person’s
Second Amendment right based on the suspicion that he
may commit a crime in the future. In addition, the only
process required before that revocation is a hearing on the
underlying court order. §922(g)(8)(A). During that civil
hearing—which is not even about §922(g)(8)—a person has
fewer constitutional protections compared to a criminal
prosecution for affray. Gone are the Sixth Amendment’s
panoply of rights, including the rights to confront witnesses
and have assistance of counsel, as well as the Fifth Amendment’s protection against double jeopardy. See Turner v.
Rogers, 564 U. S. 431, 441 (2011) (“[T]he Sixth Amendment
does not govern civil cases”); Hudson v. United States, 522
U. S. 93, 99 (1997) (“The [Double Jeopardy] Clause protects
only against the imposition of multiple criminal punishments for the same offense”). Civil proceedings also do not
require proof beyond a reasonable doubt, and some States
even set aside the rules of evidence, allowing parties to rely
on hearsay. See, e.g., Wash. Rule Evid. 1101(c)(4) (2024)
(providing the state rules of evidence “need not be applied”
to applications for protection orders (boldface and capitalization deleted)); Cal. Civ. Proc. Code Ann. §527.6(i) (West
Supp. 2024) (judge “shall receive any testimony that is relevant” and issue order based on clear and convincing evidence). The differences between criminal prosecutions and
civil hearings are numerous and consequential.
Affray laws are wide of the mark. While the Second
Amendment does not demand a historical twin, it requires
26 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
something closer than affray laws, which expressly carve
out the very conduct §922(g)(8) was designed to prevent (interpersonal violence in the home). Nor would I conclude
that affray laws—criminal laws regulating a specific type
of public carry—are analogous to §922(g)(8)’s use of a civil
proceeding to bar all Second Amendment-protected activity.
2
The Court recognizes that surety and affray laws on their
own are not enough. So it takes pieces from each to stitch
together an analogue for §922(g)(8). Ante, at 13. Our precedents foreclose that approach. The question before us is
whether a single historical law has both a comparable burden and justification as §922(g)(8), not whether several
laws can be cobbled together to qualify. As Bruen explained, “determining whether a historical regulation is a
proper analogue for a distinctly modern firearm regulation
requires a determination of whether the two regulations”—
the historical and modern regulations—“are ‘relevantly
similar.’” 597 U. S., at 28–29. In doing so, a court must
consider whether that single historical regulation
“impose[s] a comparable burden on the right of armed selfdefense and whether that burden is comparably justified.”
Id., at 29 (emphasis added).
The Court’s contrary approach of mixing and matching
historical laws—relying on one law’s burden and another
law’s justification—defeats the purpose of a historical inquiry altogether. Given that imprisonment (which involved
disarmament) existed at the founding, the Government can
always satisfy this newly minted comparable-burden requirement. See ante, at 14–15. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a
result, historical laws fining certain behavior could justify
completely disarming a person for the same behavior. That
Cite as: 602 U. S. ____ (2024) 27
THOMAS, J., dissenting
is the exact sort of “regulatory blank check” that Bruen
warns against and the American people ratified the Second
Amendment to preclude. 597 U. S., at 30.
Neither the Court nor the Government identifies a single
historical regulation with a comparable burden and justification as §922(g)(8). Because there is none, I would conclude that the statute is inconsistent with the Second
Amendment.
IV
The Government, for its part, tries to rewrite the Second
Amendment to salvage its case. It argues that the Second
Amendment allows Congress to disarm anyone who is not
“responsible” and “law-abiding.” Not a single Member of
the Court adopts the Government’s theory. Indeed, the
Court disposes of it in half a page—and for good reason.
Ante, at 17. The Government’s argument lacks any basis in
our precedents and would eviscerate the Second Amendment altogether.
A
The Government’s position is a bald attempt to refashion
this Court’s doctrine. At the outset of this case, the Government contended that the Court has already held the Second
Amendment protects only “responsible, law-abiding” citizens. Brief for United States 6, 11–12. The plain text of
the Second Amendment quashes this argument. The
Amendment recognizes “the right of the people to keep and
bear Arms.” (Emphasis added.) When the Constitution refers to “the people,” the term “unambiguously refers to all
members of the political community.” Heller, 554 U. S., at
580; see also id., at 581 (beginning its analysis with the
strong “presumption that the Second Amendment right . . .
belongs to all Americans”). The Government’s claim that
the Court already held the Second Amendment protects
28 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
only “law-abiding, responsible citizens” is specious at best.7
See ante, at 17.
At argument, the Government invented yet another position. It explained that when it used the term “responsible”
in its briefs, it really meant “not dangerous.” See Tr. of Oral
Arg. 10–11. Thus, it posited that the Second Amendment
protects only law-abiding and non-dangerous citizens. No
matter how many adjectives the Government swaps out,
the fact remains that the Court has never adopted anything
akin to the Government’s test. In reality, the “law-abiding,
dangerous citizen” test is the Government’s own creation,
designed to justify every one of its existing regulations. It
has no doctrinal or constitutional mooring.
The Government finally tries to cram its dangerousness
test into our precedents. It argues that §922(g)(8) and its
proffered historical laws have a shared justification of disarming dangerous citizens. The Government, however,
does not draw that conclusion by examining the historical
justification for each law cited. Instead, the Government
simply looks—from a modern vantage point—at the mix of
laws and manufactures a possible connection between them
all. Yet, our task is to “assess whether modern firearms
regulations are consistent with the Second Amendment’s
text and historical understanding.” Bruen, 597 U. S., at 26
(emphasis added). To do so, we must look at the historical
law’s justification as articulated during the relevant time
period—not at modern post-hoc speculations. See, e.g., id.,
at 41–42, 48–49; Heller, 554 U. S., at 631–632. As I have
explained, a historically based study of the evidence reveals
that the Government’s position is untenable. Supra, at 7–
—————— 7The only conceivably relevant language in our precedents is the passing reference in Heller to laws banning felons and others from possessing
firearms. See 554 U. S., at 626–627, and n. 26. That discussion is dicta.
As for Bruen, the Court used the phrase “ordinary, law-abiding citizens”
merely to describe those who were unable to publicly carry a firearm in
New York. See, e.g., 597 U. S., at 9, 15, 31–32, 71.
Cite as: 602 U. S. ____ (2024) 29
THOMAS, J., dissenting
13.
As it does today, the Court should continue to rebuff the
Government’s attempts to rewrite the Second Amendment
and the Court’s precedents interpreting it.
B
The Government’s “law-abiding, dangerous citizen” theory is also antithetical to our constitutional structure. At
bottom, its test stems from the idea that the Second Amendment points to general principles, not a historically
grounded right. And, it asserts that one of those general
principles is that Congress can disarm anyone it deems
“dangerous, irresponsible, or otherwise unfit to possess
arms.” Brief for United States 7. This approach is wrong
as a matter of constitutional interpretation, and it undermines the very purpose and function of the Second Amendment.
The Second Amendment recognizes a pre-existing right
and that right was “enshrined with the scope” it was “understood to have when the people adopted [the Amendment].” Heller, 554 U. S., at 634–635. Only a subsequent
constitutional amendment can alter the Second Amendment’s terms, “whether or not future legislatures or . . .
even future judges think [its original] scope [is] too broad.”
Id., at 635.
Yet, the Government’s “law-abiding, dangerous citizen”
test—and indeed any similar, principle-based approach—
would hollow out the Second Amendment of any substance.
Congress could impose any firearm regulation so long as it
targets “unfit” persons. And, of course, Congress would also
dictate what “unfit” means and who qualifies. See Tr. of
Oral Arg. 7, 51. The historical understanding of the Second
Amendment right would be irrelevant. In fact, the Government posits that Congress could enact a law that the
Founders explicitly rejected. See id., at 18 (agreeing that
30 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
modern judgment would override “[f]ounding-[e]ra applications”). At base, whether a person could keep, bear, or even
possess firearms would be Congress’s policy choice under
the Government’s test.
That would be the direct inverse of the Founders’ and ratifying public’s intent. Instead of a substantive right guaranteed to every individual against Congress, we would have
a right controlled by Congress. “A constitutional guarantee
subject to future judges’ [or Congresses’] assessments of its
usefulness is no constitutional guarantee at all.” Heller,
554 U. S., at 634. The Second Amendment is “the very
product of an interest balancing by the people.” Id., at 635.
It is this policy judgment—not that of modern and future
Congresses—“that demands our unqualified deference.”
Bruen, 597 U. S., at 26.
The Government’s own evidence exemplifies the dangers
of approaches based on generalized principles. Before the
Court of Appeals, the Government pointed to colonial statutes “disarming classes of people deemed to be threats, including . . . slaves, and native Americans.” Supp. Brief for
United States in No. 21–11001 (CA5), p. 33. It argued that
since early legislatures disarmed groups considered to be
“threats,” a modern Congress has the same authority. Ibid.
The problem with such a view should be obvious. Far from
an exemplar of Congress’s authority, the discriminatory regimes the Government relied upon are cautionary tales.
They warn that when majoritarian interests alone dictate
who is “dangerous,” and thus can be disarmed, disfavored
groups become easy prey. One of many such examples was
the treatment of freed blacks following the Civil War.
“[M]any of the over 180,000 African-Americans who served
in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them
and other blacks.” McDonald v. Chicago, 561 U. S. 742, 771
(2010). Some “States formally prohibited AfricanAmericans from possessing firearms.” Ibid. And,
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THOMAS, J., dissenting
“[t]hroughout the South, armed parties . . . forcibly took
firearms from newly freed slaves.” Id., at 772. “In one
town, the marshal took all arms from returned colored soldiers, and was very prompt in shooting the blacks whenever
an opportunity occurred.” Ibid. (alterations and internal
quotation marks omitted). A constitutional amendment
was ultimately “necessary to provide full protection for the
rights of blacks.” Id., at 775.
The Government peddles a modern version of the governmental authority that led to those historical evils. Its theory would allow federal majoritarian interests to determine
who can and cannot exercise their constitutional rights.
While Congress cannot revive disarmament laws based on
race, one can easily imagine a world where political minorities or those with disfavored cultural views are deemed the
next “dangers” to society. Thankfully, the Constitution prohibits such laws. The “very enumeration of the [Second
Amendment] right takes out of the hands of government . . .
the power to decide on a case-by-case basis whether the
right is really worth insisting upon.” Heller, 544 U. S., at
634.
The Court rightly rejects the Government’s approach by
concluding that any modern regulation must be justified by
specific historical regulations. See ante, at 10–15. But, the
Court should remain wary of any theory in the future that
would exchange the Second Amendment’s boundary line—
“the right of the people to keep and bear Arms, shall not be
infringed”—for vague (and dubious) principles with contours defined by whoever happens to be in power.
* * *
This case is not about whether States can disarm people
who threaten others. States have a ready mechanism for
disarming anyone who uses a firearm to threaten physical
violence: criminal prosecution. Most States, including
Texas, classify aggravated assault as a felony, punishable
32 UNITED STATES v. RAHIMI
THOMAS, J., dissenting
by up to 20 years’ imprisonment. See Tex. Penal Code Ann.
§§22.02(b), 12.33 (West 2019 and Supp. 2023). Assuming
C. M.’s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged
acts. Thus, the question before us is not whether Rahimi
and others like him can be disarmed consistent with the
Second Amendment. Instead, the question is whether the
Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been
accused or convicted of a crime. It cannot. The Court and
Government do not point to a single historical law revoking
a citizen’s Second Amendment right based on possible interpersonal violence. The Government has not borne its
burden to prove that §922(g)(8) is consistent with the Second Amendment’s text and historical understanding.
The Framers and ratifying public understood “that the
right to keep and bear arms was essential to the preservation of liberty.” McDonald, 561 U. S., at 858 (THOMAS, J.,
concurring in part and concurring in judgment). Yet, in the
interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second
Amendment rights of many more. I respectfully dissent.
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