After Rahimi v. United States: Second Amendment Rights of Prohibited Persons in Federal Courts

In June 2024, the Supreme Court decided United States v. Rahimi, holding 8-1 that 18 U.S.C. section 922(g)(8) — which prohibits firearm possession by individuals subject to a civil domestic violence protective order — is constitutional as applied to Zackey Rahimi, who had been found in possession of firearms after a court had found him to be a credible threat to the physical safety of his former partner. The decision was significant both for what it held and for what it clarified about the broader methodology established in New York State Rifle & Pistol Association v. Bruen (2022).

Bruen required courts to evaluate Second Amendment claims by asking whether the regulation is consistent with the historical tradition of firearm regulation in America at the time of the Founding. Lower courts applying Bruen had reached divergent conclusions about numerous federal firearms prohibitions — including section 922(g)(1) (felon in possession), section 922(g)(3) (unlawful user of a controlled substance), and section 922(g)(4) (person adjudicated as a mental defective or committed to a mental institution) — because the historical record of analogous 18th-century regulations was sparse or contested.

Rahimi refined the Bruen methodology by emphasizing that courts need not find a "historical twin" — an exact analogue from the Founding era — but must find that the challenged law fits within a broader historical tradition of regulations addressing the same problem. The majority opinion by Chief Justice Roberts held that the tradition of disarming individuals who pose a credible physical threat to others is well-established historically, and that section 922(g)(8) fits comfortably within that tradition.

The immediate question after Rahimi is how the "credible threat" or "dangerousness" standard applies to the other section 922(g) prohibitions. For the felon-in-possession prohibition under section 922(g)(1), the circuits have split. The Third Circuit's decision in Range v. Attorney General — which the Supreme Court vacated and remanded in light of Rahimi — held that Range, who had a prior conviction for making false statements to obtain food stamps, had a Second Amendment right to possess firearms because his conviction did not reflect the kind of dangerous or violent conduct that historically justified disarmament. On remand after Rahimi, the Third Circuit is expected to address whether Range's specific conviction falls within the historical tradition of disarming persons who pose a societal threat.

For section 922(g)(3) — possession while being an unlawful user of a controlled substance — courts have been divided on whether drug use, standing alone without evidence of dangerousness, satisfies the Rahimi historical-tradition test. The Fifth Circuit and others have found some as-applied challenges viable where the defendant's drug use was marijuana-related and involved no violence, while courts applying Rahimi's dangerousness framework have generally upheld the prohibition for defendants with histories of violent conduct alongside drug use.

Federal criminal defense attorneys handling firearms charges should conduct an individualized as-applied analysis for each client rather than relying on categorical treatment of any section 922(g) subsection. Rahimi preserved the constitutional as-applied challenge framework, and defendants whose prohibitions are based on non-violent prior convictions, regulatory violations, or status-based determinations made without individual dangerousness findings may have viable Second Amendment challenges — particularly in circuits that have not yet definitively resolved the issue post-Rahimi.