‘Violates the Second Amendment’: Justice Thomas Lone Dissenter in Gun Case

Supreme Court Associate Justice Clarence Thomas poses for an official portrait at the East Conference Room of the Supreme Court building in Washington, on Oct. 7, 2022. (Alex Wong/Getty Images)

Justice Clarence Thomas on June 21 dissented in a major gun case, saying that a law that prohibits certain people from owning firearms violates the U.S. Constitution’s Second Amendment. The eight other justices sided with the government.

The law, 18 U. S. C. §922(g)(8), bars people who are subject to restraining orders against a partner, ex-partner, or the child of either from owning or possessing guns.

The law “violates the Second Amendment,” Justice Thomas wrote in his dissent. “First, it targets conduct at the core of the Second Amendment— possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the ’materially different means’ of surety laws.”

The nation’s top court, in a 2022 ruling, said that officials imposing gun restrictions must show that any restrictions targeting conduct protected by the amendment are “consistent with this nation’s historical tradition of firearm regulation,” in order to avoid violating the Second Amendment.

The Second Amendment states, “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.”

The law “targets conduct encompassed by the Second Amendment’s plain text,” Justice Thomas wrote. “After all, the statute bans a person subject to a restraining order from possessing or using virtually any firearm or ammunition.”

That means the federal government must prove the law is consistent with America’s historical firearm regulations. It did not, the justice asserted.

“Despite canvassing laws before, during, and after our nation’s founding, the government does not identify even a single regulation with an analogous burden and justification,” he said.

While government lawyers pointed to surety laws that punished people who threatened others, those laws gave the people a choice between keeping the peace or paying a fine.

“Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden,” Justice Thomas said. “The government has not shown that §922(g)(8)’s more severe approach is consistent with our historical tradition of firearm regulation.”

The justice’s dissent was written for a case brought by Zackey Rahimi, a Texas resident, who was convicted of violating the law when officers found guns in his home. Mr. Rahimi had a restraining order against him.

A U.S. Court of Appeals for the Fifth Circuit panel in 2023 ruled in Mr. Rahimi’s favor, finding that the government had not shown the law fit within the nation’s historical tradition of gun regulations and that the law was thus unconstitutional.

The government appealed to the Supreme Court.

Chief Justice John Roberts, writing for the majority, said that regulations barring people from using weapons to harm or threaten others date back hundreds of years. Surety laws and so-called going armed laws, or laws that barred some people from owning guns, “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Justice Roberts wrote.

“Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be,” he added. “Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent.”

Multiple justices who joined in the majority offered concurring opinions including Justice Sonia Sotomayor.

Justice Sotomayor said the majority opinion “permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”

Justice Thomas wrote that in his view, the case centered on “whether the government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime.”

“It cannot,” he wrote, adding later that “in the interest of ensuring the government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more.”