Well gang, the U.S. Supreme Court has issued its opinion in United States v. Rahimi which made a facial challenge to 18 U.S.C. Section 922(g)(
which allows persons subject to domestic violence restraining orders to be prohibited from possessing firearms. The Court upheld the statute as facially constitutional, but it did so in a manner that narrowed the manner in which the statute is applied. Under the very short majority opinion of the Court, a person may be prohibited from possessing firearms under this statute where there are findings of fact on the record that the person subject to the restraining order is a credible threat of physical violence to the person seeking the order, and the prohibition that results may only be temporary, meaning that it must expire after a time certain. Thus, even if a petitioner is granted a lifetime restraining order, the subject of the restraining order may not be prohibited from possessing or obtaining firearms for all perpetuity. This is an important and nuanced factor given the relative ease with which these orders are granted. Another important takeaway, is that despite the U.S.D.O.J.'s best efforts to resurrect an interest balancing analysis to Second Amendment challenges, they failed. Miserably. Importantly, the Court did not make any ruling with respect to due process requirements for domestic violence restraining order prohibitions as that issue was not before the Court and was deemed waived by the parties.
I anticipate the Rahimi case will be strong authority in future litigation relating to red flag laws, though I anticipate that the first wave of cases to challenge these types of regulations (and yes, Delaware has them), will be on due process grounds to have a court determine what must be proven and by what standard before a person may be disarmed under a red flag law. I anticipate that will be some years before we start to see the constitutionality of these laws litigated given the vague nature of the due process requirements at present. Unfortunately, we have to continue playing the long game with respect to the Second Amendment.
