In United States v. Rahimi, the Supreme Court held that an individual who has been judged to pose a clear threat to another can be temporarily disarmed consistent with our history and tradition of firearm regulation. In doing so, the Court clarified that in Second Amendment challenges, it is not necessarily exact historical regulations that matter, but “the principles that underpin our regulatory tradition.” I have argued here and elsewhere that interpreters should pay more attention to the natural principles that underly the Second Amendment. In a sense, Rahimi is a step toward such a jurisprudence. But it also creates more questions than it answers. For example, Rahimi blessed disarming those subject to domestic violence restraining orders—but what does it mean for other prohibited persons groups?
Although Rahimi did not directly answer this question, its reasoning is helpful. The Court analyzed two sets of early American laws: “surety” and “affray” laws. The former required those suspected of future misconduct with a firearm to post bond to avoid imprisonment, while the latter punished those who misused firearms in a way that “terrified” the public. Both involved disarmament as either a direct punishment or a side effect of imprisonment. From these laws, the Court extracted the principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” In applying this principle to 18 U.S.C. § 922(g)(8), the Court found three things important: (1) that the statute “applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another”; (2) that “like surety bonds of limited duration, [the] restriction was temporary as applied to Rahimi”; and (3) under the historical laws, violators were typically imprisoned and therefore disarmed.
Now consider the broader history of disarmament in this country. Disarming certain individuals or groups is not a new idea in America. During colonial and early American history, Blacks, Catholics, Native Americans, and Loyalists were all, at one time or another, denied arms. And as the Court recognized in Rahimi, those who “likely would threaten or had threatened another with a weapon” were disarmed under the surety and affray laws. The group disarmament laws are not ones that we should want to apply directly today—Blacks and Catholics should and do regularly exercise their right to bear arms. But just as the Court employed the principle underlying the surety and affray laws, the principle behind the group disarmament laws can still be instructive.
Perhaps not surprisingly, the principle embodied in these laws is similar to that recognized by the Supreme Court in the surety and affray laws. Each historical group disarmament law was focused on one thing: taking arms from those thought to be dangerous. (Whether this facial justification was a front for political, racial, or religious discrimination is another question—the principle itself is commendable, even if subject to abuse in some specific implementations). Catholics were disarmed during the French and Indian War because of feared sympathies toward the Catholic nation of France. The colonies and early states disarmed Black and enslaved people due to fears of a (justified) slave insurrection. During the Revolutionary War, Loyalists were disarmed because of the danger they posed to the colonial armies. Just as the surety and affray laws focused on the violent misuse of a firearm, the danger underlying the group disarmament laws was of armed violence, just on a community scale. From the face of both the group and individual disarmament laws, then, those that posed a particular danger of violence could be disarmed.
Digging deeper into the Second Amendment more generally supports a similar principle. As I have discussed elsewhere, the amendment implemented a principle of defense against immediate personal violence and against foreign and domestic threats to the community. This general defense principle is implicit in the very nature of humanity. Life is a natural good and so to preserve it serves the common good of the individual and their political community. Self-defense is justified under the natural law, therefore, so long as one’s intent is to save a life, rather than to take the life of the aggressor. This is true at the personal level and is just as true at the level of the community.
The Second Amendment was a determination by the Founders that the best way to fulfill this principle of defense was for citizens to keep and bear arms. So the amendment protects innocent life by giving citizens the means to protect themselves. But considering the underlying principle of the amendment also suggests a corollary: that one who creates a situation that necessitates violent defense can be disarmed. This idea is fully supported by the historical disarmament laws. As the Supreme Court recognized, surety and affray laws permitted the disarmament of individuals who “likely would threaten or had threatened another with a weapon.” Of course, self-defense would be justified against someone who did so. And the group disarmament laws targeted those who were thought likely to take up arms against the government—a situation the community could have likewise used arms to defend against.
Rahimi commanded us to look to the principles underlying our tradition of firearm regulation. And the principles that underly the historical disarmament laws and the Second Amendment itself support the idea that people can be disarmed if they create a situation in which violent self-defense would be justified. So what does this mean for modern-day prohibited persons laws? I suggest that Rahimi itself provided the answer: one can only be disarmed if he “likely would threaten or had threatened another with a weapon” or otherwise “pose a clear threat of physical violence to another.”
This makes many of the prohibited persons groups massively over inclusive. Section 922(g)(1), for example, disarms anyone convicted of a crime punishable by more than one year in prison. In a now-famous example, this includes Martha Stewart. Does Martha Stewart “pose[] a clear threat of physical violence to another?” Likely not. Of course, those who have committed a violent crime do satisfy the principle I have described. The same is true of Section 922(g)(4), which disarms anyone who has been adjudicated as “a mental defective” or has been committed to a mental institution. Some with mental health issues obviously pose a clear threat of physical violence while their symptoms persist. But many who struggle with such issues overcome them. And when they do, the threat has passed. Yet they remain within the facial scope of Section 922(g)(4).
So how do we resolve this? By focusing more on the principle and asking whether the individual—or the group as an entire class—has created, or is truly likely to create, a situation in which another would be justified in resorting to violent self-defense. If an entire group is to be disarmed, then the trait that defines the group must be one that “poses a clear threat” to the community. This standard is faithful to the principles underlying both our history of disarmament and the Second Amendment itself. And it provides a real protection from the potentially discriminatory discretion by lawmakers.
This post is based in part on an essay published in the Minnesota Law Review Headnotes.