Facial Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii) Firearm Prohibition Affirmed

Introduction

The Court of Appeals for the Tenth Circuit addressed a facial Second Amendment challenge to 18 U.S.C. § 922(g)(8)(C)(ii), which prohibits firearm possession by anyone subject to a court order explicitly barring the use, attempted use, or threatened use of physical force against an intimate partner or child. Defendants Craig Gordon and Ronald Darnell Brown, each subject to protective orders entered by Utah state courts, were indicted for possessing firearms in violation of that provision. Invoking New York State Rifle & Pistol Association v. Bruen (2022) and United States v. Rahimi (2024), they contended that § 922(g)(8)(C)(ii) is facially unconstitutional. The Tenth Circuit disagreed, holding that because the statute is constitutional in at least some applications—including the appellants’ own circumstances—it cannot be struck down on its face.

Case Background and Key Issues

Parties: United States (Plaintiff–Appellee) v. Craig Gordon and Ronald Darnell Brown (Defendants–Appellants).
Protective Orders: Both appellants were subject to Utah domestic-violence protective orders prohibiting them from using force against their intimate partners and from possessing firearms.
Charges: Each was indicted under § 922(g)(8) for possessing a firearm while under a qualifying order.
Procedural Posture: The district court denied motions to dismiss on facial Second Amendment grounds; appellants entered conditional guilty pleas; appeals were held pending the Supreme Court’s decision in Rahimi and then briefed and argued in the Tenth Circuit.
Legal Question: Does § 922(g)(8)(C)(ii) violate the Second Amendment on its face?

Summary of the Judgment

The Tenth Circuit affirmed appellants’ convictions, holding that § 922(g)(8)(C)(ii) is not facially unconstitutional. Applying the Supreme Court’s test from Rahimi, the court concluded that because there exist at least some circumstances in which the statute is plainly constitutional—namely, the appellants’ own cases—the facial challenge fails. The court emphasized that § 922(g)(8)(C)(ii) shares the same objectives, scope, and temporal limits as § 922(g)(8)(C)(i), upheld in Rahimi, and that a protective order explicitly prohibiting force carries an implicit judicial determination of dangerousness.

Analysis

1. Precedents Cited

Bruen, 597 U.S. 1 (2022): Established that firearm regulations must be consistent with the nation’s historical tradition of firearm regulation and that “historical analogues” need not be identical but must be “relevantly similar.”
Rahimi, 602 U.S. 680 (2024): Upheld § 922(g)(8)(C)(i), which disarms individuals subject to domestic-violence restraining orders containing a finding of “credible threat.” Held that the facial challenge fails if any permissible applications exist, and identified surety laws and “going-armed” laws as historical analogues.
United States v. Chapman, 666 F.3d 220 (4th Cir. 2012): Recognized that an order prohibiting violence implicitly indicates dangerousness, making § 922(g)(8)(C)(ii) “no different” from § 922(g)(8)(C)(i) in practice.
United States v. Perez-Gallan, 125 F.4th 204 (5th Cir. 2024): Noted that domestic-violence protective orders in most states—Utah included—require a showing of likely harm before imposing firearm restrictions.

2. Legal Reasoning

The court applied the two-step framework from Rahimi for a facial Second Amendment challenge:

Under Bruen, ask whether § 922(g)(8)(C)(ii) burdens conduct protected by the Second Amendment.
If it does, determine whether the regulation is consistent with the nation’s historical tradition of firearm regulation.

Because § 922(g)(8)(C)(ii) prohibits firearm possession only for those under court orders that explicitly bar violence against intimate partners or children—and only for the duration of such orders—it mirrors historical “surety” bonds (pre-event risk management) and “going-armed” statutes (punishing menacing behavior). As in Rahimi, those antecedents support temporary disarmament of individuals deemed dangerous. The only difference between subsections (C)(i) and (C)(ii) is that (C)(ii) does not require an express written finding of “credible threat.” The court found that implicit findings of dangerousness are evident whenever a court issues a protective order tailored to bar force and weapons possession. Because § 922(g)(8)(C)(ii) is constitutional as applied to appellants’ cases, it survives a facial challenge.

3. Impact on Future Cases and the Law

Reinforces that facial challenges to firearm regulations under Bruen and Rahimi require proof that no constitutional application exists.
Endorses the use of implicit judicial findings of dangerousness derived from protective-order proceedings.
Signals deference to state procedures for issuing domestic-violence orders, so long as they include explicit violence prohibitions.
Guides lower courts to reject broad facial attacks on § 922(g)(8)(C)(ii) and similar statutes by focusing on specific, permissible applications.

Complex Concepts Simplified

Facial vs. As-Applied Challenge: A facial challenge asserts a law is invalid in all its applications. To succeed, plaintiffs must show no constitutionally permissible scenario exists. In contrast, an as-applied challenge targets the law’s application to particular facts.
Surety Laws: Early statutes requiring individuals suspected of violent conduct to post bonds—designed to prevent future harm.
Going-Armed Laws: Historical laws penalizing carrying weapons in a manner that intimidated the public.
Implicit Judicial Finding: Even without an express “credible threat” finding, a protective order prohibiting force and firearms necessarily reflects a court’s determination that the restrained person poses a danger.

Conclusion

The Tenth Circuit’s decision solidifies the constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii) against facial Second Amendment challenges. By demonstrating that the statute is valid in at least some applications—particularly those mirroring the appellants’ protective-order cases—the court followed Rahimi in rejecting the claim that the law is invalid in every conceivable circumstance. The ruling ensures that individuals subject to orders prohibiting violence against intimate partners or children may be temporarily disarmed consistent with our nation’s historical regulatory tradition and constitutional guarantees.