One year ago, in United States v. Rahimi, 602 U.S. ___ (2024), the Supreme Court upheld the federal statute that bars people subject to certain domestic violence protective orders from possessing firearms. The headline was that 18 U.S.C. § 922(g)(8) is constitutional. The reality is narrower. The Court decided one prong of a two-prong statute and expressly left several constitutional questions for another day. In the year since, federal defenders have been working those open questions, and they have been getting results.
What Rahimi Actually Decided
The decision came down 8-1 on June 21, 2024, with Chief Justice John Roberts writing for the majority and Justice Clarence Thomas in dissent. The Court reversed the Fifth Circuit’s facial invalidation of § 922(g)(8) and held: "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." The full slip opinion is on the Supreme Court’s website, with annotated text available through Cornell’s Legal Information Institute and Justia.
That holding is the entire decision. Everything else, including what Justice Neil Gorsuch in concurrence called "distinct questions" of ex parte disarmament, low evidentiary thresholds, and permanent firearm bans, was reserved. Gorsuch wrote that the Court did "not decide ... whether the government may disarm a person without a judicial finding that he poses a credible threat." Concurrences from Justices Sotomayor, Kavanaugh, Barrett, and Jackson similarly stressed the narrowness of the ruling.
The Three Elements of a § 922(g)(8) Predicate Order
To trigger the federal firearm bar, a state protective order must satisfy three statutory elements:
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It was issued after notice and a hearing at which the respondent had an opportunity to participate.
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It prohibits harassing, stalking, or threatening an intimate partner or child.
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It either (C)(i) contains a finding that the person poses a credible threat to the physical safety of an intimate partner or child, or (C)(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force.
Rahimi addressed only the (C)(i) credible-threat prong. The (C)(ii) explicit-prohibition prong, which can trigger federal disarmament without any judicial finding of dangerousness, was never before the Court. The Congressional Research Service’s Legal Sidebar LSB11181 walks through this statutory structure, and the Constitution Annotated summary lays out the limits of the holding.
The Gap Between State Practice and Federal Triggering
According to the State Court Report at the Brennan Center, roughly 900,000 civil protective orders are entered annually in the United States, but only about 334,000 satisfy the federal triggering elements for § 922(g)(8). The same analysis notes that more than 20 states authorize temporary ex parte disarmament before any contested hearing. Section 922(g)(8) by its own terms does not reach ex parte orders, because the statute requires a hearing "in which the person had an opportunity to participate." That leaves a wide zone of state disarmament practice that Rahimi did not validate and that has never been tested at the Supreme Court.
Perez-Gallan on Remand: The Roadmap for As-Applied Challenges
On December 31, 2024, the Fifth Circuit reissued United States v. Perez-Gallan. The panel rejected a facial challenge to the (C)(ii) explicit-prohibition prong, joining the Sixth Circuit. But the opinion also acknowledged that some as-applied scenarios "present closer calls," particularly where a state family court makes a finding of dangerousness on the record but omits it from the written order. The Duke Center for Firearms Law’s analysis of the reissued opinions calls this concession a roadmap for the next wave of defense litigation. The opinion text is available through Findlaw.
The same day, the Fifth Circuit also reissued United States v. Daniels, addressing § 922(g)(3), the prohibition on firearm possession by unlawful drug users. Read together, the two opinions confirm that the circuit is now systematically applying Rahimi’s analogy framework rather than the stricter historical-match approach it had used after Bruen. The Duke Center’s earlier July 2024 overview of Rahimi’s downstream effects on federal domestic violence prosecutions previewed exactly this kind of circuit recalibration.
Why the Facial Route Is Closed and the As-Applied Route Is Open
On October 24, 2024, the Supreme Court denied certiorari in Yusupov v. United States, No. 24-5506, a (C)(ii) challenge. Combined with the Fifth and Sixth Circuit rulings rejecting facial attacks, the message is consistent: a defendant arguing that (C)(ii) is unconstitutional on its face will lose. A defendant arguing that (C)(ii) is unconstitutional as applied to a specific record, particularly one where the state court never made a credible-threat finding and never held an adversarial hearing on the firearm component, has a real path.
Where the Reversals Are Happening
Three fact patterns are producing successful as-applied challenges:
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Effective ex parte orders. The state predicate order issued ex parte, with no meaningful contested hearing before the respondent. Section 922(g)(8) by its terms requires an opportunity to participate.
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No credible-threat finding in the record. Neither the written order nor the transcript reflects an individualized finding that the respondent poses a credible threat. If the prosecution then has to lean on (C)(ii), the as-applied attack opens.
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Boilerplate check-the-box findings. The state court used a preprinted form, checked boxes without making any individualized assessment, and entered the order. The Perez-Gallan panel flagged this category as the closer-call zone for future litigation.
The Iowa Supreme Court Weighs In on Waiver
In 2025, the Iowa Supreme Court became the first state high court after Rahimi to address waiver doctrine in the protective-order context. In State v. Cole, the court considered what kind of colloquy is required before a respondent can stipulate to firearm restrictions in a protective order. It held that a Johnson v. Zerbst-style colloquy may be advisable but is not constitutionally required. The State Court Report has a useful overview of the decision and what it signals for other state high courts now confronting similar waiver questions.
Preservation Checklist for Protective-Order Defense Counsel
The federal case is often won or lost at the state protective-order hearing, months or years before any § 922(g)(8) indictment. Defense counsel at that stage should:
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Object on the record when the petition is granted on a boilerplate form with no specific dangerousness findings.
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Preserve notice and opportunity-to-be-heard objections, especially where the order moves from ex parte to permanent without a true contested hearing.
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Request a separate evidentiary hearing before any firearm-surrender language is entered.
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Force the court to make, or to decline to make, the credible-threat finding on the record.
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If the court relies on (C)(ii) explicit-prohibition language alone, get that fact on the record too. A future federal defender will need it.
Checklist for Federal Defenders Charged Under § 922(g)(8)
When the indictment lands, the defense workup should include:
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Subpoena the complete state court record, including the transcript of every hearing, not just the written order.
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Cross-check the written order against the transcript. Look for the credible-threat finding that may have been made verbally but never entered in writing, or vice versa.
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File parallel as-applied Second Amendment and procedural due process challenges. Gorsuch’s concurrence in Rahimi explicitly teed up the due process question.
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Flag any government reliance on (C)(ii) alone. That is the prong Rahimi did not address.
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If the predicate order was effectively ex parte, build the record on that point. The statute’s plain text helps you.
What’s Next
The Supreme Court is likely to see a clean as-applied (C)(ii) vehicle in a coming term. Gorsuch’s concurrence reads as an invitation. The procedural due process question, whether boilerplate findings and minimal hearings satisfy the Constitution before a federal firearm bar attaches, has not been answered. State high courts are starting to address adjacent questions, as Iowa’s Cole decision shows.
For now, the practical reality is that Rahimi did less than the headlines suggested. The gap between roughly 900,000 state protective orders and roughly 334,000 that satisfy the federal predicate is a constitutional zone that remains largely untested. The defendants who win as-applied challenges over the next year will be the ones whose lawyers built clean records, at the state protective-order stage and again at federal prosecution, showing exactly which prongs of § 922(g)(8) were and were not satisfied.
Related reading
Sources
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United States v. Rahimi, 602 U.S. ___ (2024), Slip Opinion
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United States v. Rahimi, Cornell Legal Information Institute
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United States v. Rahimi, Justia U.S. Supreme Court Center
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Fifth Circuit Applies Rahimi in Two Reissued Decisions, Duke Center for Firearms Law (January 2025)
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Rahimi and Federal Domestic Violence Prosecutions, Duke Center for Firearms Law (July 2024)
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United States v. Perez-Gallan, No. 22-51019 (5th Cir.), Findlaw
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Congressional Research Service Legal Sidebar LSB11181
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SCOTUS’s 2nd Amendment Decision Leaves Open Questions for State Courts, State Court Report
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Can the Right to Bear Arms Be Waived?, State Court Report
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U.S. v. Rahimi, Constitution Annotated
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