Implied Threat Findings Uphold 18 U.S.C. § 922(g)(8)(C)(ii) Against Facial Second Amendment Challenge

Introduction

United States v. Brown (10th Cir. May 22, 2025) addresses whether 18 U.S.C. § 922(g)(8)(C)(ii)—the federal prohibition on firearm possession by anyone “subject to a court order that ... explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child”—is facially unconstitutional under the Second Amendment. Defendants Craig Gordon and Ronald Darnell Brown were each subject to Utah domestic‐violence protective orders that forbade firearm possession. After they were found with guns and indicted under § 922(g)(8), they challenged the statute’s facial validity, arguing that the lack of an explicit judicial finding of dangerousness rendered (C)(ii) infirm under Supreme Court precedents in Bruen and Rahimi. The Tenth Circuit disagreed, holding that because § 922(g)(8)(C)(ii) is constitutional in at least some applications—including the defendants’ own—it survives a facial challenge.

Summary of the Judgment

The Tenth Circuit affirmed both convictions, rejecting the argument that § 922(g)(8)(C)(ii) is facially unconstitutional. The court applied the Supreme Court’s framework from United States v. Rahimi (602 U.S. 680 (2024)), which requires that a firearms regulation remain consistent with historical analogues and the Second Amendment’s underlying principles. Noting the close parallels between subsection (C)(ii) and subsection (C)(i)—upheld in Rahimi—the panel held that (C)(ii) likewise aims to mitigate demonstrated domestic‐violence threats through temporary disarmament following an adversarial hearing. The mere absence of an explicit written finding of dangerousness does not render the statute overbroad, because a protective order prohibiting force necessarily implies that a court has found a threat sufficient to justify relief.

Analysis

1. Precedents Cited

New York State Rifle & Pistol Ass’n v. Bruen (597 U.S. 1, 2022): Established the historical‐tradition test for Second Amendment challenges, requiring that modern regulations be “relevantly similar” to those at the founding.
United States v. Rahimi (602 U.S. 680, 2024): Upheld § 922(g)(8)(C)(i), which bars firearm possession by individuals under restraining orders containing an explicit finding of credible threat. The Court identified two historical regimes—surety laws (preventive bonds) and going‐armed laws (punishing menacing weapons use)—as antecedents supporting preventive disarmament when a court finds a threat of violence.
United States v. Perez‐Gallan (5th Cir. 2024): Recognized that American practice required a showing of likely irreparable harm before issuing injunctive relief.
United States v. Chapman (4th Cir. 2012): Held that an order prohibiting violence implies a finding of dangerousness for purposes of federal firearms disarmament.

2. Legal Reasoning

The court applied the two-step Bruen/Rahimi framework:

Historical Analogy: § 922(g)(8)(C)(ii) shares core features with founding‐era surety and going‐armed laws—it prevents future violence through temporary disarmament after a judicial determination of threat, and it targets a narrow category (restrained domestic abusers) rather than broadly disarming the public.
Facial Challenge Standard: To succeed, defendants must show that no imaginable application of (C)(ii) is constitutional. The government need only prove that some applications—here, the defendants’ own—are valid.

The only statutory distinction between (C)(i) and (C)(ii) is the presence of an explicit written finding of threat in (C)(i), whereas (C)(ii) requires only that the order prohibit force “by its terms.” The panel reasoned that this “by its terms” requirement implies that a hearing and finding occurred, given historical and state‐law requirements for issuing injunctive relief. Under Utah law, protective orders after hearing can prohibit firearm possession only upon finding that the respondent may pose a serious threat of harm. Thus, by the time § 922(g)(8)(C)(ii) applies, the issuing court has already made the factual determination that § 922(g)(8)(C)(i) demands in writing.

3. Impact

This decision clarifies that federal firearms prohibitions tied to domestic‐violence restraining orders do not require a separate, explicit federal‐statutory finding of dangerousness beyond the state court’s terms. It strengthens § 922(g)(8)(C)(ii) against facial Second Amendment attacks and signals that courts should look to the context and structure of protective‐order proceedings when assessing constitutionality—rather than demanding rote formalism. Future litigants challenging similar provisions will face a high bar under the “facial”‐challenge standard and the Bruen/Rahimi historical test.

Complex Concepts Simplified

Facial vs. As-Applied Challenges: A facial challenge attacks a law in all its applications; it fails if even one constitutional application exists. An as-applied challenge attacks the law only in specific circumstances.
Surety Laws: Early statutes allowing courts to require bonds from individuals deemed likely to commit violence—preventive measures rather than punishment after the fact.
Going-Armed Laws: Colonial and founding‐era laws punishing people who carried weapons in a frightening or menacing way.
Implicit Finding: Although § 922(g)(8)(C)(ii) lacks an explicit written “finding of dangerousness,” the very act of issuing a protective order that prohibits force presupposes a court’s determination of risk.
Temporary Disarmament: The loss of firearm rights only lasts while the restraining order is in effect, mirroring historical bonds and injunctive relief rather than permanent forfeiture.

Conclusion

United States v. Brown reaffirms that the Second Amendment does not forbid temporary disarmament of individuals judicially restrained from using violence against intimate partners or children. By aligning § 922(g)(8)(C)(ii) with historical preventive regimes and recognizing the inferable finding of threat inherent in domestic‐violence protective orders, the Tenth Circuit upheld the statute against a facial challenge. This decision underscores the judiciary’s role in balancing public safety against individual rights through historically grounded analogies and reaffirms the constitutionality of targeted, circumstance-specific firearm regulations.