When an abuser has access to a gun, the risk that they will kill their female partner increases fivefold. Every month, an average of over 70 women in the United States are shot and killed by an intimate partner, and comparative analyses of high-income countries indicate that women in the United States are roughly 28 times more likely to be killed in firearm homicides than women in other wealthy nations. In an interview with the HPR, Ruth Zakarin, CEO of the Massachusetts Coalition to Prevent Gun Violence, describes domestic violence as a “public health crisis” and warns that hesitation in the law costs lives.
Against this backdrop, the Supreme Court’s 2024 decision in United States v. Rahimi, its first major Second Amendment case since New York State Rifle & Pistol Association v. Bruen (2022), was eagerly anticipated. Many observers hoped the Court would finally clarify when the government may temporarily disarm a person credibly accused of abuse. Instead, the Court issued a narrow ruling that preserved a single federal statute while leaving unresolved the procedural questions that most directly determine survivor safety in the perilous period after they seek help. Ultimately, Rahimi illustrates a deeper structural problem in contemporary Second Amendment doctrine: the Court’s reliance on a history-and-tradition framework that is poorly suited to modern domestic violence law.
The Legal Framework Behind Rahimi
Congress added 18 U.S.C. § 922(g)(8) to the Gun Control Act in 1994. This federal provision temporarily bars firearm possession for individuals subject to certain domestic violence protection orders. The statute applies only after basic due-process safeguards, such as a notice and a hearing, and only when a court has found that the respondent poses a credible threat or has been explicitly barred from using or threatening physical force. The statute’s narrow design was deliberate to preserve constitutional caution, but it also leaves protection uneven across states with different emergency and enforcement practices.
Understanding Rahimi also requires revisiting the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which fundamentally reshaped Second Amendment doctrine. In Bruen, the Court rejected the balancing approach that lower courts had used for years, which weighed public-safety interests against gun rights, and replaced it with a single “history and tradition” test. Under this framework, if the conduct at issue falls within the Second Amendment’s scope, the government must justify any firearm regulation by showing that it is consistent with the “Nation’s historical tradition of firearm regulation” rather than by pointing to contemporary evidence of public safety.
The Rahimi litigation explicitly tested how far Bruen’s historical test extends. Zackey Rahimi argued that because there was no Founding-era statute closely analogous to 18 U.S.C. § 922(g)(8), the federal prohibition on firearm possession by those subject to qualifying protection orders violated the Second Amendment.
Applying Bruen, the Fifth Circuit Court of Appeals accepted that framing and concluded that the historic precedents invoked by the government were not genuinely comparable to § 922(g)(8), a decision the Supreme Court would later reverse in Rahimi. However, the Supreme Court left Bruen’s underlying history-and-tradition methodology largely intact.
The Supreme Court’s Narrow Holding
On June 21, 2024, the Supreme Court reversed the Fifth Circuit’s decision in United States v. Rahimi, holding that “when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.” Writing for the majority, Chief Justice John Roberts emphasized that the right to bear arms, while fundamental, is not unlimited, and that historical practice has long permitted the government to restrict weapons in the hands of those who threaten violence.
To situate § 922(g)(8) within that tradition, Roberts identified two strands of Founding-era regulation: “surety” laws, which authorized courts to require bonds from individuals suspected of future violence, and “going armed” laws, which criminalized carrying dangerous weapons in a manner that terrorized others. Because § 922(g)(8) applies only after notice, a hearing, and a judicial finding of dangerousness, the Court concluded that the statute is consistent with the historical tradition of disarming dangerous individuals.
Just as significant, however, is what the Court declined to decide. Two features of the ruling are especially salient. First, the majority rejected the government’s invitation to treat “irresponsible citizens” as a free-floating category of people who may be disarmed, insisting instead on a concrete judicial determination of “dangerousness.” Second, the opinion explicitly sidestepped questions about due process. Roberts observed that alleged defects in state protective-order procedures — such as inadequate notice, ex parte orders, or low evidentiary thresholds — were not raised by Rahimi, and Justice Gorsuch reinforced that different procedures could raise “distinct questions.”
Read together, the opinions reaffirm Congress’s authority to disarm a person like Rahimi, who was found, after an adversarial proceeding, to pose a credible threat. Yet they leave entirely open whether ex parte firearm prohibitions, short notice periods, or minimal evidentiary showings are permissible. In effect, the Court leaves survivors and state courts to navigate a patchwork of emergency procedures with no clear federal guidance about how much process is “enough.” The problem is not that courts are asked to disarm too readily and thus risk erroneously depriving individuals of a fundamental right, but that the absence of clear procedural baselines forces judges and law enforcement officials to choose between constitutional caution and survivor safety, often at the worst possible moment.
As a result, Rahimi’s narrow holding leaves some of the most urgent questions about disarmament unaddressed. In practice, a large share of domestic violence protective orders are temporary and issued ex parte to shield survivors during the period of the greatest danger immediately after they seek help. Advocates describe this tool as lifesaving because homicide risk is highest immediately after a survivor seeks help, yet Rahimi never squarely addresses whether such orders are consistent with the Second Amendment or with the Due Process Clause.
The gaps do not end there. Federal law defines “intimate partner” for § 922(g)(8) as spouses, cohabitants, and co-parents, excluding many dating partners who have never lived together or shared a child. In contrast, many states allow protection orders for a wider range of intimate partnerships that fall outside the federal categories. States also diverge sharply on the duration of firearm prohibitions. Some permit long-term or even lifetime firearm bans for egregious cases under state law, while § 922(g)(8) applies only for as long as a qualifying protective order remains in effect. Rahimi offers no guidance on whether, or when, these broader relationship definitions and longer-lasting prohibitions raise constitutional concerns.
The decision is also silent on the standard of proof required before a person may be disarmed. Section 922(g)(8) does not specify whether a court’s finding that the respondent “represents a credible threat” must satisfy a preponderance-of-the-evidence standard, a heightened clear-and-convincing standard, or something else. In the absence of a clear constitutional rule, state courts will continue to apply divergent evidentiary thresholds in protection-order proceedings. That divergence translates directly into uneven protection for survivors and uncertain constitutional footing for the disarmament provisions themselves; hence, the same pattern of abuse might justify firearm removal under one state’s standard but not another’s, all under the shadow of a Second Amendment framework that has yet to say how to weigh these choices.
Consequences for Survivors
Doctrinal uncertainty does not remain in appellate opinions; it cascades through frontline practice. Uncertainty about who qualifies as a prohibited person, and how, or whether, firearms will actually be removed, produces uneven enforcement. Different police departments within the same state may treat similar orders very differently: One agency may seize firearms under a harassment or civil protection order, while another hesitates out of fear of a constitutional challenge or uncertainty about its authority. As Zakarin told the HPR, this “fuzziness” translates directly into muddled enforcement, “where survivors are left to deal with whatever happens in the aftermath.”
This breakdown is especially dangerous at the moment when survivors are at the greatest risk. Chelsea Parsons, Senior Director of Implementation at Everytown for Gun Safety, describes the resulting dynamic with precision in an HPR interview: When a survivor takes “that really brave and potentially dangerous step of going to court,” but the system fails to follow through with prompt firearm relinquishment, “we are, in fact, creating a situation where there may now be more danger and still firearms.”
Moreover, survivors who reasonably fear that their abusers will be notified without any guarantee of disarmament may conclude that petitioning the court is too risky and stay away altogether. As attorney Micaela Deming, co-author of the national Rahimi amicus brief, notes in an interview with the HPR, “civil protection orders are very often petitioned for and go through their entire short process pro se,” meaning many survivors must navigate hearings without legal help, while abusers are more likely to have counsel. This dynamic magnifies the risks of seeking help when legal protections are uncertain.
Studies comparing states’ policies suggest that jurisdictions with robust firearm-removal laws, such as clear surrender procedures tied to protective orders or emergency risk-protection orders, have substantially lower rates of domestic violence homicide and murder-suicide than states with weak or nonexistent firearm prohibitions, even after controlling for population. For survivors in this landscape, a protection order that does not reliably result in gun removal can represent a life-and-death failure.
Historical Erasure and Structural Inequality
The turn to eighteenth- and nineteenth-century analogues in Second Amendment doctrine has profound gendered and racial implications. As Caroline Light, historian of gender, violence, and American gun culture, emphasizes in an HPR interview, the early American republic lacked even a legal vocabulary for what is now described as domestic violence. Under the doctrine of coverture, a married woman’s legal identity was absorbed into that of her husband; she was effectively “civilly dead,” without independent rights to property, contract, or political participation. When constitutional interpretation demands proof that a protection existed in 1791, it necessarily privileges those eras’ distributions of power and silence, which elevates histories of exclusion while rendering the experiences of women, enslaved people, Indigenous communities, and other marginalized groups invisible in the analysis.
Light argues that originalist methodologies “concentrate the privilege of using violence, including so-called self-defensive violence, in disproportionately male, white, propertied hands,” a pattern that extends from the early republic to the present. Public-health analyses link firearm regulations to substantial disparities in firearm homicide and suicide, particularly for women and communities of color. The fact that Bruen and, to a lesser extent, Rahimi cast doubt on empirically effective measures such as licensing, permitting, and sensitive-place restrictions thus risks reproducing historical inequities in modern doctrinal form.
Alejandra Rivera, policy manager at the Massachusetts Coalition to Prevent Gun Violence, contends in an HPR interview that if a judge could not defend a ruling to a survivor without acknowledging the harm it risks inflicting, that ruling should not be the basis for public policy. In other words, if judges were required to imagine explaining their decisions face-to-face to survivors or to parents who have lost daughters to intimate-partner shootings, they would better apprehend the moral stakes obscured by abstract appeals to “history and tradition.” Yet the dissent in Rahimi, authored by Justice Clarence Thomas, adheres to a rigid originalism that treats domestic violence firearm prohibitions as presumptively suspect absent close Founding-era analogues, which largely disregards the lived experience of survivors. The legitimacy of constitutional law depends not only on its fidelity to text and precedent, but also on whether it meaningfully accounts for — and seeks to protect — the human beings whose lives are structured by its commands.
Pathways Forward
If Rahimi leaves survivors in a doctrinal gray zone, it also points toward possible ways forward. The question is not whether constitutional rights matter, but how a legal system committed to both liberty and equality can prevent domestic homicides without abandoning procedural fairness.
First, courts and legislatures should establish clear procedural baselines for firearm disarmament tied to protection orders. To reduce the risk of future due process challenges and the inconsistent enforcement that follows, states could codify a uniform baseline, which could take the form of prompt service of the petition, a hearing within a short and defined period, an articulated evidentiary standard for long-term firearm restrictions, and written findings regarding dangerousness. Even when a temporary ex parte order is necessary because risk is imminent, it should be coupled with an expedited, adversarial hearing at which the respondent can contest the allegations and present evidence. Procedural clarity of this kind would both strengthen protections for respondents and make it easier to defend firearm prohibitions under the Second Amendment and the Due Process Clause.
Second, civil risk-based tools should be integrated more deliberately into domestic violence response systems. As Light argues, Extreme Risk Protection Orders (“ERPOs”), or “red flag” laws, offer a complementary mechanism for addressing imminent danger. ERPOs allow family members, intimate partners, or law enforcement officers to petition a court for temporary firearm removal when a person poses a significant danger to themselves or others. In practice, judges often review petitions in emergency ex parte proceedings and, if they grant temporary relief, schedule a full hearing within roughly two to three weeks to determine whether a longer-term order is warranted. ERPOs are civil in form, typically carry no criminal conviction or record, and are time-limited, which makes them a procedurally meaningful but less punitive alternative to arrest or prosecution. Congress and the states could expand ERPO availability, ensure that intimate-partner threats and stalking are explicitly covered grounds, and integrate ERPO procedures with domestic violence protective-order systems so that judges can coordinate and sequence relief rather than treat each mechanism in isolation.
Finally, any doctrinal or statutory reform must start from the premise that domestic violence is not a series of private misfortunes but a public health crisis. Ruth Zakarin and Caroline Light stress that intimate-partner homicide reflects patterns of power and control, not isolated incidents, and that law must be designed accordingly. Treating domestic violence as a structural problem justifies sustained investment in survivor services, emergency and long-term housing, and economic support that make it possible to leave dangerous relationships. It also supports data-collection systems that track whether firearms are actually relinquished when orders require it, and training for judges, clerks, and law enforcement on the intersection of guns and abuse.
United States v. Rahimi reaffirmed that courts may disarm people who have been found to pose a credible threat to their intimate partners. Nevertheless, the decision’s narrow focus and silence on due process standards leave survivors, state judges, and law-enforcement agencies without the guidance they need to act consistently and quickly. As Ruth Zakarin emphasizes, “if the policy is unclear or fuzzy, that is going to impact practice.” Law lives not only in Supreme Court opinions, but also in the everyday protective orders that police are willing to enforce and that survivors must decide whether to seek. When those orders vary by county or are stripped of firearm provisions because judges fear running afoul of ambiguous constitutional tests, the promise of safety rings hollow.
History should be used to illuminate the Constitution, not leveraged as justification for chaining us to eras in which women were treated as legal dependents and domestic violence was largely invisible to the criminal law. The Founders did not anticipate intimate-partner abuse as a distinct harm, and there is no Founding-era analogue to modern civil protection orders. Rahimi’s insistence on eighteenth-century exemplars as a precondition for contemporary firearm restrictions replicates those eras’ exclusions and erases, once again, the voices of the people most at risk when guns remain in the hands of abusers.
Associate World Editor
