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RAHIMI ASCENDENT
The Supreme Court’s 2022 New York State Rifle & Pistol Assn. v. Bruen decision held that if a gun right (like going armed in public or even possessing one after a felony conviction) was one covered by the 2nd Amendment, the government could deny that right only if it could point to a law or regulation from 235 years ago that did the same.
Given that a federal law denying violent felons the right to have guns was not passed until 1938 – and it wasn’t expanded to all felons until 1968 – it seemed that Bruen was destined to lead to 18 USC § 922(g)(1), the felon-in-possession statute, being declared unconstitutional.
But then came Zack Rahimi, whose gun-fueled road rage and general craziness – including opening fire over an alleged fast food joint indignity – led to last summer’s SCOTUS decision that held § 922(g)(8) (which bans gun possession by people under a domestic protection order) was perfectly constitutional. In United States v. Rahimi, the Supremes held that Bruen didn’t mean that the government had to find a 235-year-old law that was a precise fit to § 922(g), provided that “the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’”
Rahimi “has been relatively impotent since the Court handed it down a few months back,” Jake Fogleman wrote in Sunday’s The Reload, but this “relevantly similar” test has now “inspired an appeals court to reverse a sweeping ruling against a federal firearms prohibition.”
The 5th Circuit unanimously upheld 18 USC § 922(n), which bars people under indictment from receiving guns, reversing a WD Texas district court decision handed down after Bruen but before Rahimi. Based on Rahimi’s refinement of the Bruen test, the Circuit ruled in United States v. Quiroz that “the government has met its burden of showing that § 922(n) is relevantly similar to pretrial detention at the founding [of the nation].” The court reasoned that the purpose of § 922(n) (public safety) and the burden it imposes (temporary disarmament) align with the historical justifications and effects of pretrial detention. It observed that many felonies punishable by death at the founding would have resulted in pretrial detention and disarmament, and that § 922(n) imposes a lesser burden by only restricting receipt of new firearms, not possession.
Other constitutional challenges to § 922 had an equally rocky time last week. In United States v. Quailes, the 3d Circuit held that despite its Range v Attorney General decision of a month ago, two defendants charged with § 922(g)(1) violations could be convicted consistent with the 2nd Amendment because they were on state parole when caught with guns and thus had not completed their sentences. The 3d said that “this Nation’s ‘history and tradition’ of ‘disarming convicts who are completing their sentences’ applies with equal force to defendants who are on state supervised release—including a sentence of parole or probation.”
In United States v. Contreras, the defendant had been convicted for being a drug user in possession of a gun (18 USC § 922(g)(3)). He did 24 months and then went on supervised release. While serving his supervised release term, he stupidly posted a picture on social media of himself holding a pistol. The police followed him and got him in a traffic stop with eight ounces of marijuana and the gun.
Last week, the 5th Circuit held that § 922(g)(1) was constitutional as applied to defendant Contreras. The 5th compared the felon-in-possession prohibition to § 922(n), which temporarily restricts defendants’ access to guns for public safety reasons and “align[s] with the historical justifications and effects of pretrial detention,” as well as colonial-era laws disarming people who are intoxicated.
“Here,” the Circuit said, “we have Contreras, a felon who after being convicted for being armed while intoxicated and being placed on temporary supervised release, was again found armed while intoxicated, this time while completing the sentence for the first crime… There is no ‘historical twin’ of § 922(g)(1); but that is not what our jurisprudence requires… Instead, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”
Finally, in United States v. Curry, the 5th Circuit last week rejected a claim that the felon-in-possession statute was facially unconstitutional, that is, that it necessarily violated the 2nd Amendment is all cases. This decision was unsurprising in light of Rahimi.
In his Rahimi dissent, Justice Clarence Thomas predicted that the “relevantly similar” test was overbroad. “Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes.”
Fogleman wrote that as the result of Rahimi’s “relevantly similar” test is that “a panel from a circuit known for going much [further] than its peers in hewing to a strict interpretation of the Bruen test has now okayed a modern gun law based on loose principles related to detaining suspected criminals at the time of the Founding.”
New York State Rifle & Pistol Assn v. Bruen, 597 US 1 (2022)
United States v. Rahimi, 602 US 680 (2024)
The Reload, Analysis: Rahimi Makes an Impact (January 19, 2025)
United States v. Quiroz, Case No. 22-50834, 2025 U.S.App. LEXIS 706 (5th Cir. January 13, 2025)
United States v. Quailes, Case No 23-2533, 2025 U.S.App. LEXIS 1107 (3d Cir. January 17, 2025)
United States v. Contreras, Case No 23-50840, 2025 U.S.App. LEXIS 701 (5th Cir. January 13, 2025)
United States v. Curry, Case No 22-11084, 2025 U.S.App. LEXIS 702 (5th Cir. January 13, 2025)
– Thomas L. Root
