United States v. Rahimi: How Far Does the Second Amendment Go? And the Professional Responsibility of Lawyers

August 2023

Update: Since this article was written, there have been newer developments in the law. For more on that, you can read our analysis of United States v. Rahimi.

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Last year, the Supreme Court struck down a New York law that required applicants to prove “proper cause exists” before they would be granted a firearm license.  In New York State Rifle & Pistol Ass’n v. Bruen, the Court found that requirement inconsistent with the Second Amendment’s historical understanding, and therefore unconstitutional.[1]  Since Bruen, lower courts have invalidated a variety of other gun laws, including several federal and state prohibitions on possession of a firearm.[2]

In each of those cases, courts have evaluated whether the government can prove that a specific law is “consistent with the Nation’s historical tradition of firearm regulation.”[3]  Some judges, however, have questioned whether they are qualified to perform such a detailed survey of “what white, wealthy, and male property owners thought about firearms regulation in 1791.”[4]

Just one year after deciding Bruen, the Supreme Court has agreed to wade back into these disputed waters.  In US v. Rahimi, the Court will review a Fifth Circuit decision that struck down 18 U.S.C. § 922(g)(8), the federal law prohibiting people from possessing a firearm while subject to a domestic-violence restraining order.  Once again, the question will be whether the law violates the “historical tradition” and “historical understanding” of the Second Amendment.

I. United States v. Rahimi 

In Rahimi, a three-judge panel from the Fifth Circuit—Judges Jones, Ho, and Wilson—found that “§ 922(g)(8)’s ban on possession of firearms is an outlier that our ancestors would never have accepted.  Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.”[5]  Following that decision, the United States sought Supreme Court review, and the Supreme Court has agreed to hear the case during its next term.

The Government framed its petition for certiorari this way: “Firearms and domestic strife are a potentially deadly combination.”[6]  “More than a million acts of domestic violence occur in the United States every year, and the presence of a firearm increases the chance that violence will escalate to homicide.”[7]  It then followed the methodology prescribed by the Supreme Court, contending that “[g]overnments have long disarmed individuals who pose a threat to the safety of others, and Section 922(g)(8) falls comfortably within that tradition.”[8]

Rahimi opposed the Government’s petition and argued that “it is too early to work through [these] disputes in the Supreme Court” given that Bruen was decided only a year ago.[9]  Lower courts, he explained, “are now hard at work applying the new historical framework and revaluating firearm restrictions,” and the Supreme Court should allow the issue to percolate longer.[10]

The Supreme Court disagreed and granted the Government’s petition.  The Court is now poised to issue a second pivotal Second Amendment decision in as many years.

II.  Judges, not Historians

The Supreme Court’s ongoing exploration of Second Amendment law is having profound impacts, and it inspires vehement disagreement.  In the Southern District of Mississippi, Judge Carlton Reeves recently struck down 18 U.S.C. § 922(g)(1), the federal law prohibiting felons from possessing firearms.[11]  He did so with great reluctance and much criticism of the new Bruen jurisprudence. 

In an exhaustive opinion, Judge Reeves expressed his “concern[]. Judges are not historians.  We practiced law, not history.  And we do not have historians on staff.  Yet the standard articulated in Bruen expects us to play historian in the name of constitutional adjudication.”[12]  Shouldering that burden, the court learned that “an overwhelming majority of historians reject the Supreme Court’s most fundamental Second Amendment holding—its 2008 conclusion that the Amendment protects an individual right to bear arms, rather than a collective, Militia-based right.”[13]  Or as one author put it: historians often complain that “lawyers just can’t seem to get it right.”[14]  But, Judge Reeves acknowledged, “the standard announced by the Supreme Court in Bruen is the law of the land.  It must be enforced.”[15]

III.  When Ideologies Collide:  The Professional Responsibility of Lawyers

Here we take no position on these issues, but of course we have our own opinions—as do all lawyers, and as do all people.  So one might naturally ask, what happens when a lawyer’s personal opinion of firearm regulation conflicts with that of their client?  On one hand, an attorney has a duty to zealously assert their client’s position, no matter the attorney’s personal ideology or views on an issue.[16]  But as public citizens, lawyers should also “seek improvement of the law” and “cultivate knowledge of the law beyond its use for clients,” so they can “employ that knowledge in reform of the law.”[17]  Other moral and ethical considerations should also guide lawyers, “for no worthwhile human activity can be completely defined by legal rules.”[18]

In the case of a conflict between those duties—to a client and to a lawyer’s own opinion—a few principles may apply.  First, “it is not generally considered a conflict of interest for a lawyer to engage in law reform activities even though such activities are adverse to the interests of the lawyer’s private clients,” because representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views.”[19]  Second, the client has “ultimate authority to determine the objections” of the representation, within limits.[20]  And third, a lawyer should not proceed if the representation would be materially affected by the lawyer’s own interests.[21]

In situations such as these, the ethical issues are difficult and resolving them depends upon the particular facts and circumstances of each case.  These principles, however, may serve as a useful guide.

[1] 142 S. Ct. 2111 (2022).

[2] E.g., US v. Daniels, --- F.4th ---, No. 22-60596 (5th Cir. Aug. 9, 2023) (finding unconstitutional 18 U.S.C. § 922(g)(3), which prohibits firearm possession by drug users); US v. Rahimi, 61 F.4th 553 (5th Cir. Mar. 2, 2023) (finding unconstitutional § 922(g)(8), which prohibits firearm possession by persons subject to a domestic-violence restraining order); Jones v. Bonta, 34 F.4th 704 (9th Cir. 2022) (finding unconstitutional a California law that prohibits the sale of most rifles to people under 21); Wolford v. Lopez, No. 23-00265 LEK-WRP (D. Hawaii Aug. 8, 2023) (granting preliminary injunction against Hawaii law that bans firearms from public places); US v. Price, No. 2022 WL 6968457 (S.D. W. Va. Oct. 12, 2022) (finding unconstitutional § 922(k), which prohibits possession of a firearm with an altered, obliterated, or removed serial number); US v. Quiroz, 2022 WL 4352482 (W.D. Tex. Sept. 19, 2022) (finding unconstitutional § 922(n), which prohibits receipt of a firearm while under felony indictment); Firearms Policy Coalition, Inc. v. McCraw, 623 F.Supp.3d 740, 748 (N.D. Tex. Aug. 25, 2022) (finding unconstitutional a Texas law prohibiting people under 21 from carrying handguns outside the home); Taylor Goldenstein, Abbott tells Uvalde families Texas can’t raise age to buy an AR-15. Legal experts disagree., Houston Chronicle, Sept. 1, 2022, https://www.houstonchronicle.com/politics/texas/article/Abbott-tells-Uvalde-families-Texas-can-t-raise-17413342.php; but see Nat’l Assoc. for Gun Rights v. Lamont, No. 3:22-1118 (JBA) (D. Conn. Aug. 3, 2023) (denying motion for preliminary injunction against state law restricting access to assault weapons and large-capacity magazines).

[3] Bruen, 142 S. Ct. at 2130.

[4] Order at 3, US v. Bullock, No. 3:18-CR-165, 2022 WL 16649175 (S.D. Miss. Oct. 27, 2022).

[5] Rahimi, 61 F.4th 553, No. 21-11001, at *25 (cleaned up and citation omitted).

[6] United States Petition for a Writ of Certiorari at 6 (March 2023) (quoting US v. Hayes, 555 U.S. 415, 427 (2009)).

[7] Id. at 6–7 (citing US v. Castleman, 572 U.S. 157, 160 (2014)).

[8] Id. at 7.

[9] Rahimi Brief in Opposition at 1 (May 30, 2023).

[10] Id.

[11] US v. Bullock, No. 3:18-CR-165 (S.D. Miss. June 28, 2023).

[12] Id. at *9 (internal quotation marks and citation omitted).

[13] Id. at *10 (internal quotation marks and citations omitted) (referring to District of Columbia et al. v. Heller, 554 U.S. 570 (2008)).

[14] Id. at *10–11 (quoting Jonathan D. Martin, Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts, 78 N.Y.U. L. Rev. 1518, 1525 (2003)).

[15] Id. at *4.

[16] See Preamble at # 2, Texas Disciplinary Rules of Professional Conduct (“Texas Rules”).

[17] Id. at # 5.

[18] Id. at # 11.

[19] Texas Rule 1.13, cmt. 3; Texas Rule 6.01, cmt. 4.

[20] Texas Rule 1.02, cmt. 1.

[21] Texas Rule 1.06(b)(2) & cmt. 4.

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