Gun legislation: Key changes after Bruen and Rahimi rulings

In its 2022 Bruen and 2024 Rahimi decisions, the U.S. Supreme Court has restricted and clarified the gun legislation which it will support. It has not prohibited gun legislation and, indeed, has encouraged it with some very clear qualifications. This article will examine the guidance we have from those decisions, review the California "red flag" law, CA Penal Code Section 18175, and assess its likely survival after Rahimi.

Bruen

In New York State Rifle & Pistol Association v. Bruen, 575 U.S. 1 (2022), the Supreme Court, with Justice Thomas writing for the 6-3 majority, struck down New York's "Sullivan Law." The Court ruled that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home. [Page 1.] The Sullivan Law, 1911 New York Laws, Chapter 195, Section 1, page 443, made it a crime to possess any handgun, concealed or otherwise, without a government-issued license.

Magistrates in New York could issue a license to carry a concealed pistol or revolver without regard to employment or place of possessing such weapon "only if that person proved 'good moral character' and 'proper cause.'" [Page 2.] The New York courts have required evidence "of particular threats, attacks or other extraordinary danger to personal safety." [Page 3.]

Referring to its decisions in District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010), the Court noted that there is a longstanding tradition of upholding "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, legislative assemblies polling places and courthouses." [Page 21.]

Alito concurrence

Justice Alito concurred, writing that the holding decided nothing "about restrictions that may be imposed on the possession or carrying of guns." [Concurrence, Page 2.]

Kavanaugh concurrence

Justice Kavanaugh concurred, writing the Court's decision "does not affect the existing licensing regimes - known as 'shall-issue' regimes - that are employed in 43 states." [Concurrence, Page 1.] These "shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements." [Concurrence, Page 2.]

Justice Kavanaugh wrote further, "Properly interpreted, the Second Amendment allows a variety of gun regulations." [Concurrence, Page 3.]

Rahimi

In an 8-1 decision, with Justice Roberts writing for the majority, the Court upheld a federal law prohibiting an individual subject to a domestic abuse restraining order from possessing a firearm. However, the Court ruled that the order must contain a finding that the individual represents a "credible threat to the physical safety of [an] intimate partner or child of the partner or [of the] individual." 18 U.S.C. Section 922 (g) (8). [Page 1.]

Domestic violence

In this case, the individual attacked his intimate partner, the mother of his child. He fired his gun at his partner and at a witness. He later threatened his partner if she reported the incident. [Pages 1-2.] A Texas court had issued a restraining order against the individual, including a finding that he had committed "family violence." It further found that his violence was "likely to occur again" and that the individual "posed a credible threat" to the "physical safety of his partner and their child." [Page 2.]

Suspended gun license

The order further suspended the individual's gun license for two years. But the individual later violated the order by approaching his partner at home at night. [Page 2.] The individual was involved in at least five other shooting incidents, including threatening another woman with a gun. The police searched his home and found a pistol, a rifle, ammunition and a copy of the order. [Page 3.]

The Supreme Court ruled that the restraining order had met all three criteria under Section 922. First, the individual defendant had received notice of the hearing regarding the order and had an opportunity to be heard. Second, the order prohibited the defendant from threatening his former partner. Third, the order included a finding that he represented a credible threat to the physical safety of his former partner and her family. [Page 4.]

Second Amendment

The Court ruled that the Second Amendment permits the disarming of individuals who pose a credible threat to the safety of others. [Page 5.]

Comment

In view of all of the above, what are the prospects for gun legislation after Bruen and Rahimi? First, unless there is a substantial realignment of the justices on the Supreme Court, licensing requirements, such as demonstrating a specific need to carry in New York's "Sullivan Law," will not survive. Second, however, total gun restrictions in geographically focused "sensitive areas" will survive. The recent Ninth Circuit decision in Wolford v. Lopez. ____F. 3d____( 9^th Circuit, September 26, 2024) discussed several areas which qualified as "sensitive areas," including schools, playgrounds, youth centers, libraries, zoos, bars and restaurants, but not hospitals, public transit, banks or churches. However, the court in Wolford noted that private property owners are free to exclude persons carrying guns. [Page 6.]

Domestic violence - CA red flag law

Third, it seems that laws carefully drafted and aimed at preventing domestic violence will survive as long as the individual subject to any restraining order receives due process and an opportunity to be heard before the order is entered. California's "red flag" law, CA Penal Code Section 18175, seems to satisfy the above requirements of Rahimi. It provides, in part, as follows:

"(b) At the hearing, the petitioner has the burden of proving, by clear and convincing evidence, that both of the following are true:

(1) The subject of the petition, or a person subject to a temporary emergency gun violence restraining order or an ex parte gun violence restraining order, as applicable, poses a significant danger of causing personal injury to themselves or another by having in the subject's or person's custody or control, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine.

(2) A gun violence restraining order is necessary to prevent personal injury to the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable, or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition, or the person subject to an ex parte gun violence restraining order, as applicable.

(c)

(1) If the court finds that there is clear and convincing evidence to issue a gun violence restraining order, the court shall issue a gun violence restraining order that prohibits the subject of the petition from having in the subject's custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm, ammunition, or magazine.

(2) If the court finds that there is not clear and convincing evidence to support the issuance of a gun violence restraining order, the court shall dissolve a temporary emergency or ex parte gun violence restraining order then in effect."

Rahimi did not involve an ex parte order as the related CA statute contemplates in CA Penal Code Section 18150. We proceed here with considerable caution and speculate that the Supreme Court might uphold such an ex parte order if there was extreme danger of immediate violence, and the defendant was given notice and the opportunity to be heard in court within a short period of time, such as  three to five days after the issuance of the ex parte order.

Conclusion

However, situations such as workplace or school violence must be clearly addressed in any such statute. The burden of proof on the petitioner is substantial, and the restraining order must be limited in time. The order in Rahimi was for two years. The California statute contemplates an order for as long as five years, or until a hearing and further order by the court. CA Penal Code, Section 18175 (e) (1).

But there is reasonable expectation that gun legislation tailored especially to Rahimi will survive Supreme Court scrutiny. Justice Kavanaugh, in his concurrence in Bruen, even indicated that he would support legislation requiring the gun owner to receive training in firearms handling and in the use of force.