On November 7, the Supreme Court will hear oral argument in United States v. Rahimi. That's the case in which the Fifth Circuit unanimously held that 18 U.S.C. § 922(g)(8) violates the Second Amendment. Section 922(g)(8) is the federal statute that prohibits individuals who are subject to a state domestic violence restraining order (DVRO) from possessing any firearm. Under the federal law, they can be sent to prison for up to fifteen years if they do.
The Fifth Circuit faithfully applied the text and history methodology first deployed by the Supreme Court in District of Columbia v. Heller and then further prescribed in New York State Rifle & Pistol Ass'n v. Bruen, decided in 2022. The Fifth Circuit determined that the statute could not stand because the Government did not demonstrate that the statute's "restriction of the Second Amendment right fits within our Nation's historical tradition of firearm regulation," which is the Government's burden to prove under the express language of Bruen.
The Government submitted its reply brief to the Supreme Court on the merits on October 25. In that brief, Merrick Garland's Justice Department took an astonishing position: Bruen's methodology should essentially be ignored.
