Justice Thomas stood alone in Rahimi, and his dissent deserves a careful reading

Eight to one is not a close vote. It is the kind of margin that usually ends a debate. And yet the single dissenter in United States v. Rahimi was the justice who had written the Court's landmark Second Amendment opinion two years earlier, which means the lone vote against the government was cast by the author of the test the other eight were applying.

That is worth a pause. A conservative who cares about the Constitution should neither cheer the result by reflex nor dismiss the dissent as a stubborn outlier. The case is a hard one, the opinions are unusually thoughtful, and each side of the conservative argument has something to learn from the other.

The facts

Zackey Rahimi was a Texas man. In December 2019, he met his girlfriend, the mother of his young child, for lunch in a parking lot. They argued, and he grabbed her by the wrist, dragged her back to his car and shoved her in, and she struck her head on the dashboard. When he realized a bystander was watching, he paused to retrieve a gun from under the passenger seat. She escaped, and he fired as she fled, though it is unclear whether he was aiming at her or at the witness. In February 2020, a state court in Tarrant County, Texas, issued a restraining order against him. She had gone to court to seek it, and although Rahimi had an opportunity to contest her testimony, he did not do so. The order, entered with the consent of both parties, included findings that he had committed "family violence," that the violence was "likely to occur again," and that he posed a credible threat to the physical safety of the woman or the child. It barred him from threatening her or her family for two years and suspended his gun license for two years.

Rahimi did not stay out of trouble. According to the Court's account, over the following months he was tied to a string of shootings. After a customer in his illegal drug dealing "started talking trash" he drove to the man's home and shot into it, then fired at another car after a collision, fired his gun in the air while driving through a residential neighborhood, fired several times toward a truck and a nearby car after chasing it, and fired into the air at a roadside burger restaurant. Police obtained a warrant to search his residence and found a pistol, a rifle, ammunition and a copy of the restraining order. He was indicted in federal court on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. § 922(g)(8).

The statute

Section 922(g)(8) is a federal law that makes it a crime for a person to possess a firearm if he is subject to a court order that meets three conditions. The order must have been issued after a hearing of which the person had actual notice and at which he had an opportunity to participate. The order must restrain him from harassing, stalking or threatening an intimate partner or the partner's child, or from engaging in other conduct that would place the partner in reasonable fear of bodily injury. And the order must either include a finding that he represents a credible threat to the physical safety of the partner or child, or by its terms explicitly prohibit the use, attempted use or threatened use of physical force that would reasonably be expected to cause bodily injury.

The law is the sort of provision that, until 2022, courts had little difficulty upholding. Then came New York State Rifle & Pistol Association v. Bruen (2022), written by Justice Thomas. Bruen held that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects it, and that the government must justify its regulation by showing that it is consistent with the nation's historical tradition of firearm regulation. The Fifth Circuit applied that test to § 922(g)(8), reversed, and concluded that the government had not shown the statute fits the nation's historical tradition of firearm regulation. The government petitioned, and the Supreme Court took the case.

The majority

The Court heard argument on November 7, 2023, and decided on June 21, 2024. Chief Justice Roberts wrote for the majority. The vote was eight to one.

The majority held that, as applied to Rahimi, § 922(g)(8) was constitutional. In its words, an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. The opinion also clarified Bruen: the question is whether the challenged regulation is consistent with the principles that underpin the nation's regulatory tradition. A court need not find a "historical twin," only a law that is "relevantly similar" in why and how it burdens the right.

The government's history came from two sources, and the Court relied on both.

Surety laws. From the founding period and before, a person who threatened another could be required to post a bond, a surety, to keep the peace. If he broke it, he forfeited the bond. The surety statutes of several states, including Massachusetts and others in the early republic, allowed a magistrate to require a person who went armed in a way that would cause terror to post surety. The majority treated these as an early way of restraining a person found to be a threat.

"Going armed" laws. English and early American laws punished the act of going armed to terrify the public, and sometimes the penalties included forfeiture of the arms. The majority treated these as a tradition of disarming those who used weapons to menace others.

From these, the majority drew a principle: since the founding, firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. Section 922(g)(8), the Court said, fits that principle. It applies only after a judicial determination, it lasts only while the order is in effect, and it targets people found to pose a credible threat. The Court stressed that it was deciding only the case before it, and that Rahimi, having been found dangerous, was a poor candidate for a facial challenge.

The concurrences

The Court's opinions in Rahimi are as notable for the concurrences as for the majority. Five concurring opinions were filed alongside the Chief Justice's opinion, which says something about how unsettled the method is.

Justice Sotomayor, joined by Justice Kagan, wrote that she remained skeptical of Bruen's approach but that the majority's reading of it was a sound way to resolve the case.

Justice Gorsuch wrote that Rahimi had brought a facial challenge, the "most difficult challenge to mount successfully," so he had to show that no set of circumstances exists in which the law could be applied consistently with the Second Amendment, and that he had failed to make that showing. He stressed that text and history dictate the contours of the right, and that the government need not show a "dead ringer" for a historical analogue.

Justice Kavanaugh wrote at length about the role of history in constitutional interpretation, arguing that a historical approach constrains judges more than an open-ended balancing test and is more faithful to the text. He defended reading the Constitution by its text, structure and historical practice.

Justice Barrett wrote that the Second Amendment, despite its unqualified text, is not absolute, and she used her concurrence to explain how an originalist should use history. She described a "level of generality" problem: must the government produce a founding-era relative of the challenged regulation, or do founding-era regulations yield principles that mark the borders of the right? She cautioned that a court must not read a principle at so high a level of generality that it waters down the right, but said the Court here had settled on "just the right level of generality," and she left harder level-of-generality problems for another day.

Justice Jackson, concurring, wrote that she joined the opinion in full because Bruen is binding law, but that courts applying its history-and-tradition test had struggled, and that "the blame may lie with us, not with them." She suggested that the Court should pay attention to the difficulty the lower courts were reporting.

The spread of those concurrences tells you something. The justices agreed on the result and on the importance of history, and they disagreed about how history should be used.

Thomas's dissent

Justice Thomas dissented alone. His opinion is the one that most rewards a careful reading, and I want to state it fairly, because it is often caricatured as an indifference to domestic violence. It was not.

His argument begins from Bruen. If the government wants to disarm a person, it must show that the regulation is consistent with the nation's historical tradition. And the burden, Thomas said, is on the government to identify founding-era laws that are relevantly similar. In his view, the government had failed.

He took up the government's two sources and argued that neither fit.

On surety laws, Thomas argued that they were "in a nutshell, a fine on certain behavior": a person who threatened someone in his community was given the choice to keep the peace or forfeit a sum of money. They shared a justification with § 922(g)(8), he said, but imposed a far less onerous burden, and the government had not shown that the statute's more severe approach is consistent with the tradition.

On going-armed laws, he argued that affray laws had a different justification, because they regulated only certain public conduct that injured the entire community, and a different burden: they did not prohibit carrying firearms at home or even public carry generally, and many had a self-defense exception. Section 922(g)(8), by contrast, prevents a covered person from carrying any firearm or ammunition, in any manner, in any place, at any time. The dissent also noted that the statute disarms on the basis of a civil order, and that violating it is a federal felony punishable by up to 15 years in prison.

He also made a structural argument. Section 922(g)(8), he said, does not require a finding that a person has ever committed a crime of domestic violence and is not triggered by a criminal conviction. It does not distinguish contested orders from joint orders, and it applies automatically once a qualifying order is entered. He noted that the order against Rahimi was itself entered by consent. And, in his reading, the government had failed to produce any historical regulation that justified the statute.

Finally, Thomas objected to the majority's approach to the test. He wrote that the government's "law-abiding, dangerous citizen" theory, and indeed any similar principle-based approach, would hollow out the Second Amendment of any substance, because Congress could impose any firearm regulation so long as it targets "unfit" persons and would dictate what "unfit" means.

Whether or not you agree, notice the pattern. Thomas took the test he created seriously enough to apply it against a result he might have been expected to like. A judge who says "my own test requires me to rule against a sympathetic government" is a judge you can at least trust to apply the test consistently.

What conservatives on each side should take from it

The case divides conservatives, and I think both camps have something to learn.

For those who support the result

Please do not treat the dissent as a quirk of one stubborn justice. Its points are real.

1. The government's historical analogues are not identical, and Thomas's distinctions are not frivolous. A bond is not a ban. A criminal conviction is not a civil order.
2. A rule that depends on a civil proceeding, which may be held with less formality than a criminal trial, puts a lot of weight on the quality of that proceeding. Due process is the safeguard, and conservatives who care about the rights of the accused should care that the orders at issue meet a high standard.
3. The majority's reading, that the Second Amendment permits disarming those who are found to pose a credible threat, is a principle with a long reach. Conservatives should insist that its limits be enforced: findings must be specific, hearings must be real, and the disarmament must be tied to the danger.

History offers the best support for the government on this point: the Pennsylvania minority's 1787 proposal, discussed in What the ratifying conventions demanded before Madison drafted an arms right, itself allowed disarming people for crimes committed or real danger of public injury. The government's best answer is that history does include temporary disarmament of dangerous persons, and that Rahimi, who had fired a weapon at others, is the clearest possible case. That answer is strong, and the Court's eight justices accepted it. But the dissent's point about due process is one every supporter should remember.

For those who side with the dissent

Please do not treat the majority as a betrayal. Its points are also real.

1. The Second Amendment, like every right, has always had limits. Heller said so, and nobody on this side seriously argues that a person who has shown a propensity to violence against his family must keep his guns. The question is how to draw the line, not whether one exists.
2. A protective order that disarms for a limited time, after notice and a hearing, with a judicial finding, is a narrow thing. The statute does not disarm everyone accused of a domestic offense. It disarms those subject to a court order, issued after process.
3. The consequence of a different ruling would have been to leave a man the court had found dangerous in lawful possession of the firearms he had already used against others. The people who suffer from that are victims, often women, who followed the process the law offers, and a conservative defense of order should take their safety seriously.

The honest dissent-side conclusion is that the case was decided on its facts and that the facial challenge was a poor vehicle. A better case might involve a person subject to a weaker order, and a ruling for the government in that case would be harder to defend.

The method question, in numbered form

Strip the case to its core and you get an argument about method that conservatives will be having for a long time.

1. The history-and-tradition test is better than interest-balancing because it constrains judges and ties them to the text.
2. But a test that demands a founding-era twin for every modern law will yield absurd results as technology and social conditions change.
3. A test that looks only for a general principle risks becoming a rubber stamp.
4. The right level lies in between, and finding it is a matter of judgment, which is the very thing the test was meant to limit.

That is not a defect only conservatives suffer. Every method of interpretation leaves something to judgment. The merit of the history-based approach is that the judgment is disciplined by the record, and the record is public. Rahimi shows both the strength and the strain of that discipline. For a fuller picture of what came before, see Justice Stevens's Heller dissent, stated fairly and answered point by point and conservatives disagree about red-flag laws, and both sides deserve a hearing, which takes up the same tension in the context of state law. The site's courts page explains how the Court is organized and how its opinions are issued.

A word of wry observation. We have spent decades demanding that judges stay faithful to a text and a tradition, and then express surprise when faithfulness produces a split among the faithful. If you wanted a method that always produced agreement, you wanted a different profession. The comfort is that the disagreement in Rahimi is conducted in the open, in writing, with citations, and not by fiat.

What it means for a family

For a family, the case is a reminder of two things. First, courts do take domestic violence seriously, and the law has long provided for the protection of victims, including by taking weapons from the abuser. Second, rights have limits and procedures, and the limits should be tested, narrowly and fairly, in public.

This post describes a court decision. If you are in danger, contact the police, a domestic-violence hotline or a local court, and ask a lawyer in your state about the orders that apply to you.

The case in brief

1. In United States v. Rahimi (June 21, 2024), eight justices upheld 18 U.S.C. § 922(g)(8), which bars gun possession by people under certain domestic-violence restraining orders, as applied to a man who had been found a credible threat.
2. The majority relied on surety laws and "going armed" laws as historical analogues, reading Bruen to require a relevantly similar principle, not a historical twin.
3. Concurrences by Justices Sotomayor (joined by Justice Kagan), Gorsuch, Kavanaugh, Barrett and Jackson showed disagreement about how to use history.
4. Justice Thomas dissented alone, arguing that surety laws were a fine on behavior rather than a ban and that going-armed laws reached only certain public conduct, so the government had shown no historical regulation that justifies disarming people on a civil order.
5. Conservatives on both sides should keep the lesson: temporary disarmament of the dangerous is consistent with the tradition, and due process must be real.

What you can do: read the Rahimi majority and the Thomas dissent in full on the Supreme Court's website, and check how your own state handles protective orders and firearms.