Affirmation of 18 U.S.C. § 922(g)(8)(C)(ii): Disarming Individuals under Domestic-Violence Orders Survives Facial Second Amendment Challenge

1. Introduction

This commentary examines the Tenth Circuit’s decision in United States v. Gordon (10th Cir. May 22, 2025), which consolidated appeals by Craig Gordon and Ronald Darnell Brown. Both defendants were charged under 18 U.S.C. § 922(g)(8)(C)(ii) for possessing firearms while subject to state protective orders explicitly prohibiting the use of physical force against intimate partners. They contended that subsection (C)(ii) was facially unconstitutional under the Second Amendment in light of New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi. The Tenth Circuit rejected their facial challenge, holding that § 922(g)(8)(C)(ii) has at least some constitutional applications and therefore survives.

2. Background of the Case

2.1 Parties and Facts

Craig Gordon: After threatening his ex-partner, Gordon stipulated to a Utah protective order prohibiting physical force against her and firearm possession. Officers later found a loaded handgun in his car.
Ronald Darnell Brown: Following a violent assault on his girlfriend, Brown was served with a Utah protective order forbidding violence and gun possession. A year later, police arrested him carrying a stolen loaded handgun.

2.2 Procedural Posture

Both men were indicted in federal court under § 922(g)(8) for possessing firearms while subject to qualifying restraining orders. They moved to dismiss on Second Amendment grounds. After the district court denied relief, they entered conditional guilty pleas preserving appeal rights. Their appeals were briefly stayed pending the Supreme Court’s decision in Rahimi, then resumed, culminating in this Tenth Circuit opinion.

3. Summary of the Judgment

The Tenth Circuit held that § 922(g)(8)(C)(ii) is not facially unconstitutional under the Second Amendment because it has at least some applications that satisfy the Bruen-Rahimi historical‐analogue test. The court emphasized:

A facial challenge requires showing that no circumstance exists where the statute is constitutional.
In Rahimi, the Supreme Court upheld § 922(g)(8)(C)(i) by finding historical analogues—“surety laws” and “going-armed laws”—that disarmed individuals demonstrably threatening violence.
Section (C)(ii), like (C)(i), disarms only temporarily, triggers only after judicial process, and targets those under orders explicitly forbidding violence.
The absence of an express written “dangerousness” finding does not render (C)(ii) unconstitutional; the very terms of a (C)(ii) protective order imply a judicial finding of threat.
Both appellants’ own orders—entered after notice and hearing under Utah law—satisfy the implicit‐finding requirement.

The court therefore affirmed both convictions.

4. Analysis

4.1 Precedents Cited

New York State Rifle & Pistol Ass’n v. Bruen (2022): Established that modern firearms regulations must be consistent with historical American tradition. Courts must identify “relevantly similar” historical analogues.
United States v. Rahimi (2024): Upheld § 922(g)(8)(C)(i) on a facial challenge, identifying two historical regimes—surety laws (preventive bonds) and going-armed laws (punitive disarmament)—authorizing disarmament of those who posed threats.
United States v. Chapman (4th Cir. 2012): Recognized that an order expressly prohibiting violence authorizes a reasonable inference of dangerousness, fulfilling the (C)(i) requirement.
United States v. Perez-Gallan (5th Cir. 2024): Noted that protective orders issue only upon a showing of likely harm, supporting implicit findings of threat.
In re Combs (6th Cir. Oct. 2024): Observed that (C)(ii) differs from (C)(i) only in its proof mechanism, not in its substantive purpose or effect.

4.2 Legal Reasoning

The Tenth Circuit applied the Bruen/Rahimi framework: (1) determine the constitutional right’s scope; (2) ask whether the regulation burdens rights consistent with historical tradition. On facial challenge standards, defendants must show no constitutionally valid application, while the government need show only some. The court found that (C)(ii) shares four critical features with (C)(i):

Objective: Targeting demonstrable threats of future violence.
Scope: Narrow and case‐specific, not a broad public arms ban.
Process: Activation only after judicial process—notice, hearing, order.
Duration: Temporary disarmament, parallel to Founding-era practices.

The only variation is that (C)(ii) infers threat from the terms of the order rather than an express factual finding. The court concluded that such inference is both strong and historically supported, as protective orders routinely require judicial findings—either explicit or implied—of likely harm (see Utah Code Ann. § 78B-7-603). Thus, § 922(g)(8)(C)(ii) aligns with historical analogues and survives a facial challenge.

4.3 Impact on Future Cases and Second Amendment Jurisprudence

This decision reinforces several important principles:

Facial Second Amendment challenges face a high bar—statutes survive if they are constitutional “in some applications.”
Courts will recognize implied judicial findings of dangerousness when orders explicitly forbid violence.
Historical analogues need not be “dead ringers” but must reflect analogous regulatory aims and methods.
The decision fortifies the constitutionality of federal firearm restrictions tied to domestic-violence protective orders, deterring those under such orders from weapon possession.

Lower courts will likely cite Gordon when evaluating facial challenges to similar restrictions, and litigants will bear the burden of identifying orders entirely lacking any implicit or explicit threat finding.

5. Complex Concepts Simplified

Facial Challenge: A claim that a statute is unconstitutional in every possible application. To succeed, challengers must show no set of circumstances renders the law valid.
Historical-Analogue Test: Under Bruen/Rahimi, courts compare modern regulations to historical laws with similar aims and burdens.
Surety Laws: Early American statutes requiring bonds from individuals suspected of future violence—preventive disarmament.
Going-Armed Laws: Early statutes punishing people who carried weapons to intimidate or threaten others—punitive disarmament.
Implicit Finding: A court order’s terms (e.g., forbidding violence and gun possession) can reasonably infer that the court found a risk of harm, even absent formal language.

6. Conclusion

The Tenth Circuit’s decision in United States v. Gordon solidifies the constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii) against facial Second Amendment attacks. By demonstrating that orders explicitly banning violence carry a strong inference of dangerousness—backed by historical analogues in surety and going-armed laws—the court ensures that individuals under domestic-violence protective orders may be temporarily disarmed without violating fundamental rights. This ruling will guide lower courts in upholding similar restrictions and underscores the judiciary’s role in balancing individual liberties with public safety.