Episode description

In this case, the court considered this issue: Does 18 U-S-C § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violate the Second Amendment?   

The case was decided on June 21, 2024.

The Supreme Court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment. Chief Justice John Roberts authored the 8-1 majority opinion of the Court.

The Second Amendment right to keep and bear arms is fundamental but not unlimited. When examining a challenged regulation, the Court considers whether it is consistent with historical principles, not necessarily identical to historical laws. The key factors are why and how the regulation burdens the right.

Section 922(g)(8) fits within this tradition. Historically, two legal regimes addressed firearms violence: surety laws and “going armed” laws. Surety laws allowed magistrates to require bonds from individuals suspected of future misbehavior, including firearm misuse. “Going armed” laws prohibited carrying weapons in a way that terrified the public. Both regimes targeted individuals who posed threats to others’ safety.

Section 922(g)(8) is relevantly similar to these historical laws. It applies to individuals found by a court to threaten others’ physical safety, just as the historical laws did. The burden it imposes—temporary disarmament based on a judicial finding—is also consistent with historical practice. While not identical to historical laws, Section 922(g)(8) aligns with the principles underlying the Second Amendment and historical firearm regulations aimed at preventing violence.

Justice Sonia Sotomayor authored a concurring opinion, in which Justice Elena Kagan joined, opining that the Court correctly applied its decision in Bruen, but she continues to believe that Bruen was incorrectly decided.

Justice Neil Gorsuch authored a concurring opinion, emphasizing that while Section 922(g)(8) can be constitutional in some applications, the Court’s ruling is narrow and leaves open many questions about the law’s constitutionality in other specific circumstances.

Justice Brett Kavanaugh authored a concurring opinion to review the proper roles of text, history, and precedent in constitutional interpretation.

Justice Ketanji Brown Jackson authored a concurring opinion, noting that two years’ after Bruen, it is now clear that the unclear legal standard established in Bruen is difficult for lower courts to apply.

Justice Amy Coney Barrett authored a concurring opinion, acknowledging lower courts’ struggle to apply Bruen but pointing out that in this case, the Court settles on just the right level of generality

Justice Clarence Thomas authored a dissenting opinion, arguing that not a single historical regulation justifies the statute at issue.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.