Current Second Amendment Cases Before the Supreme Court
Legal Sidebari
Current Second Amendment Cases Before the
Supreme Court
January 18, 2024
Ratified in 1791, the Second Amendment provides, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For over
200 years, the Supreme Court remained largely silent on the Second Amendment. In a series of relatively
recent decisions, however, the Court has provided guidance on the substance and scope of the
constitutional provision.
In 2008, in District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects
an individual right to possess firearms for certain purposes, including at least self-defense in the home.
Two years later, in McDonald v. City of Chicago, the Court determined that the right to bear arms is a
“fundamental” right. Accordingly, the Second Amendment applies not only to laws imposed by the
federal government, but to laws enacted at the state and local level as well. In 2016, in Caetano v.
Massachusetts, the Court in a brief opinion clarified that “arms” within the meaning of the Second
Amendment encompass modern arms, including stun guns, that did not exist at the time of the founding.
In 2022, the Supreme Court in New York State Rifle & Pistol Association v. Bruen resolved two of the
questions left open following Heller and McDonald: does the right to bear arms extend beyond the home,
and how are courts to assess purported infringements of the right? In Bruen, the Court held that the
protections of the Second Amendment extend beyond the home and announced the standard to be used in
assessing Second Amendment challenges to firearm laws: when the plain text of the Second Amendment
covers the regulated conduct, the Constitution presumptively protects it. Accordingly, to justify a
regulation of that conduct, the government must demonstrate that a challenged law is consistent with the
Nation’s historical tradition of firearm regulation.
Following Bruen, plaintiffs filed a number of legal actions contesting various federal and state firearm
laws. One of these cases has since been accepted for review by the Supreme Court, and petitions for
review in several other cases are pending before the Court. This Sidebar surveys these Second
Amendment cases, focusing on cases involving federal statutes. The Sidebar addresses these cases in
three sections: (1) the petition for review that the Supreme Court has granted; (2) pending petitions for
review that the federal government has filed with the Court (which may be more likely to be granted
relative to petitions filed by other parties); and (3) pending petitions for review involving federal statutes
that have been filed with the Court by non-federal-government parties.
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Cases in the first two categories are addressed in detail, and cases in the third category are listed in
summary form with identifying information. The Sidebar concludes with considerations for Congress.
Cases Accepted for Review (1)
United States v. Rahimi: Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms
by persons subject to domestic-violence restraining orders, violates the Second Amendment on its
face.
In Rahimi, the defendant, Zackey Rahimi, was subject to a civil protective order after his alleged assault
of his ex-girlfriend. The protective order prohibited Rahimi from possessing a firearm. Subsequently,
Rahimi was suspected of using a firearm in multiple shootings, and firearms were found at his home
during a search by law enforcement. He was indicted for possessing a firearm while under a domestic
violence restraining order in violation of 18 U.S.C. § 922(g)(8). He challenged the indictment, asserting
that Section 922(g)(8) was unconstitutional under the Second Amendment.
The district court issued a decision prior to Bruen upholding the statute pursuant to pre-Bruen precedent.
Following Bruen, the Fifth Circuit reversed, siding with Rahimi. Under the Bruen analytical framework,
the court observed that Rahimi himself is covered by the Second Amendment because Heller explained
that the Second Amendment right belongs to “the people.” The federal government, defending the
constitutionality of Section 922(g)(8), argued that Rahimi was excluded from the Second Amendment’s
protections because Heller referred to the right as applying only to “law-abiding, responsible citizens.”
The court rejected the government’s argument, reasoning that the language regarding “law-abiding,
responsible citizens” speaks to the scope of permissible restrictions under Bruen’s historical analysis, not
who is categorically excluded from coverage.
Turning to the historical analysis, the court held that the government failed to meet its burden of proving
that Section 922(g)(8) was consistent with a historical tradition of firearm regulation. The government’s
primary argument was that historical English and American laws disarmed individuals considered to be
“dangerous.” The court deemed these historical analogues to be inapposite, as any such laws that
disarmed individuals ultimately did so for broader political or social reasons, not to protect anyone
specific from domestic gun violence. The court also rejected the relevance of two proposals during state
deliberations regarding the ratification of the Constitution—one to exempt from Second Amendment
protections citizens who posed a “real danger of public injury,” and the other to limit the right to bear
arms to “peaceable citizens”—as these proposals were not adopted and did not form a part of the Second
Amendment that was eventually enacted. Without a sufficiently comparable analogue put forward by the
government, the court struck down Section 922(g)(8) as unconstitutional.
On June 30, 2023, the Supreme Court agreed to review the Fifth Circuit’s decision in Rahimi. The Court
heard oral argument in the case on November 7, 2023. A decision is expected by the end of the 2023
Term.
Pending Petitions Filed by the Federal Government (3)
United States v. Perez-Gallan: Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of a
firearm by a person subject to a domestic-violence protective order, violates the Second Amendment
on its face.
In a summary, unpublished opinion, the Fifth Circuit in United States v. Perez-Gallan held that it was
bound by its prior decision in Rahimi and therefore affirmed the district court’s dismissal of an indictment
charging Litsson Antonio Perez-Gallan with violating 18 U.S.C. § 922(g)(8). In a brief petition for
Supreme Court review, the United States acknowledged that this case presents the same question the
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Court has agreed to resolve in Rahimi. The government asked the Court to “hold this petition . . . pending
its decision in Rahimi and then dispose of the petition as appropriate in light of that decision.” The
petition is pending.
Garland v. Range: Whether 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a
person convicted of “a crime punishable by imprisonment for a term exceeding one year,” violates
the Second Amendment (at least as applied to certain nonviolent offenders).
Under 18 U.S.C. § 922(g)(1), individuals who have been convicted of a crime punishable by
imprisonment for a term exceeding one year are prohibited from possessing firearms. Bryan Range was
convicted of making false statements to obtain food stamps in violation of Pennsylvania law, an offense
that qualified for the federal prohibition.
Range challenged the prohibition as applied to him, asserting that if it were not for the ban, he would
purchase a deer-hunting rifle and perhaps a shotgun for self-defense in the home. The district court
granted summary judgment for the federal government. After Bruen, a three-judge panel of the Third
Circuit affirmed.
The en banc Third Circuit then reversed, ruling in favor of Range. In line with Bruen, the en banc court
first determined that Range was one of “the people” protected by the Second Amendment. While the
government argued that the Amendment covers only “law-abiding, responsible citizens,” the court ruled,
among other things, that the government’s conception of this phrase was too restrictive and logically
could mean that “every American who gets a traffic ticket is no longer among ‘the people’ protected by
the Second Amendment.” The court decided that the plain text of the Second Amendment implicates the
felon-in-possession ban, which would preclude Range from possessing a rifle to hunt or a handgun to
defend himself in the home.
Turning to a historical analysis, the court held that the government did not carry its burden of establishing
a historical tradition consistent with the application of Section 922(g)(1) to Range. The court concluded
that the historical analogues offered by the government fell short, as the government did not show that
Range belonged to a specific class of individuals that was historically disarmed, that historical
punishments for nonviolent felonies included lifetime disarmament, or that historical laws disarming
individuals who used firearms in the commission of their offenses would have applied to Range (who did
not use a firearm to commit his fraud offense). The court thus ruled that Section 922(g)(1) could not
constitutionally be applied to Range, stressing that its decision was a “narrow” one applicable only to the
defendant based on his violation of a particular Pennsylvania law.
The government filed a petition for review with the Supreme Court, pointing out that the Third Circuit’s
opinion conflicted with decisions reached by the Eighth Circuit in United States v. Jackson and United
States v. Cunningham, and another by the Tenth Circuit in United States v. McCane. Given that the Court
granted review in Rahimi, the government in Range asked the Court to hold the petition pending a ruling
in Rahimi and, following such ruling, either vacate the Third Circuit’s decision and remand or fully
review this or another case raising the constitutionality of Section 922(g)(1). The petition is pending.
United States v. Daniels: Whether 18 U.S.C. § 922(g)(3), which prohibits the possession of firearms
by a person who is an unlawful user of, or is addicted to, a controlled substance, violates the Second
Amendment as applied to certain users.
On the same day the government sought review in Range, it also filed a petition seeking review of a case
involving 18 U.S.C. § 922(g)(3), which prohibits an individual who is an unlawful user of, or who is
addicted to, a controlled substance from possessing a firearm. As with the petition in Range, the
government asked the Court to hold the petition pending its ruling in Rahimi and thereafter either vacate
and remand the case or proceed with full review of this or another case raising the constitutionality of
Section 922(g)(3).
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Daniels stemmed from an April 2022 traffic stop in which two law enforcement officers pulled over
Patrick Daniels for driving without a license plate. During the stop, the officers found several marijuana
cigarette butts and two loaded firearms in the vehicle. Daniels admitted that he had used marijuana since
high school and continued to do so regularly. Prosecutors alleged that Daniels was an “unlawful user” of
marijuana, a controlled substance under federal law, and charged him with violating Section 922(g)(3).
Daniels moved to dismiss the indictment, asserting that Section 922(g)(3) is inconsistent with the Second
Amendment. The district court disagreed, preserving the indictment and allowing the prosecution to
proceed. A panel of the Fifth Circuit reversed. The Fifth Circuit first determined that Daniels belonged to
the “law-abiding” class of individuals protected by the Second Amendment, reasoning that the universe of
“law-abiding” individuals historically excluded only felons and the mentally ill. The court then concluded
that the historical regulations advanced by the government were insufficiently comparable to Section
922(g)(3). First, the court explained that the government had not identified any “Founding-era law or
practice of disarming ordinary citizens for drunkenness, even if that intoxication was routine.” “[A]t no
point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one
time from possessing guns at another,” the court wrote. The court acknowledged that “[a] few states
banned carrying a weapon while actively under the influence,” but the court found these laws to be inapt
as they “did not emerge until well after the Civil War.” Additionally, historical regulations offered by the
government that disarmed “dangerous” individuals were motivated by different political and social
reasons, and regulated different categories of individuals that did not include “ordinary drunkards,” the
court concluded. Based on this analysis, the court held that the government failed to carry its burden
justifying the application of Section 922(g)(3) to Daniels. Although the majority emphasized the
“narrowness” of its holding, which only applied to Daniels and did not invalidate the statute on its face, a
concurring opinion stated that it was “hard” to “avoid the conclusion that most, if not all, applications of
§ 922(g)(3) will likewise be deficient.”
The government filed a petition for Supreme Court review, arguing that the Court should hear the case
because the Fifth Circuit’s decision created a split with pre-Bruen opinions from other circuits, among
other things. As with the petition in Range, the government asked the Court to hold the petition until after
Rahimi is decided, and then either vacate and remand the case, or accept the case or another one raising
the question of whether Section 922(g)(3) complies with the Second Amendment. The petition is pending.
Pending Petitions Filed by Other Parties Involving
Federal Statutes (1)
• Vincent v. Garland, No. 23-683: “Whether the Second Amendment allows the federal
government to permanently disarm Petitioner Melynda Vincent, who has one 15-year-old
nonviolent felony conviction for trying to pass a bad check.”
Considerations for Congress
Given that Rahimi and several other cases in which petitions for Supreme Court review have been filed
involve constitutional challenges to federal firearms laws, the outcomes of the cases could profoundly
impact the statutory framework Congress has enacted to regulate firearms. Furthermore, a decision in
Rahimi (or any other Second Amendment cases in which the Supreme Court grants review) may further
clarify the Second Amendment and thus the permissible bounds for any future federal legislation.
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Author Information
Dave S. Sidhu
Legislative Attorney
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