Critical Steps to Take Today If This Supreme Court Ruling Affects Your Firearm Case

Why the Rahimi Decision Changes Everything for Your Pending Federal Firearm Prosecution

In my 25 years as a federal prosecutor and now as a defense attorney, I have never seen a Supreme Court decision that so completely rewrites the analytical framework for Second Amendment litigation as United States v. Rahimi, 602 U.S. ___ (2024). Chief Justice Roberts, writing for the 8-1 majority, explicitly rejected the government's argument that any law with historical analogues from the founding era is automatically constitutional, and instead mandated that courts must conduct a "nuanced, historical analysis" of whether the challenged statute is "consistent with the Nation's historical tradition of firearm regulation." This ruling directly impacts every single federal firearm charge currently pending in district courts across the country, from simple possession by a prohibited person under 18 U.S.C. § 922(g)(1) to possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). The critical distinction is that the Court now requires the government to identify a "well-established and representative historical analogue" that is "distinctly similar" to the modern statute in both how it burdens the right and the justification for that burden. If the government cannot satisfy this burden, your case must be dismissed, regardless of what the statute says on its face.

What makes this ruling so immediately actionable for defendants is the Court's explicit instruction that lower courts must not apply a "rigid, one-size-fits-all approach" but instead must examine the specific facts of each defendant's circumstances. For example, a defendant charged under § 922(g)(8) for possessing a firearm while subject to a domestic violence restraining order now has a far stronger argument than someone charged under § 922(g)(1) for a prior felony conviction, because the historical record regarding disarmament of individuals found to be dangerous is substantially different from the record regarding categorical disarmament of all felons. In my practice, I am already seeing district court judges in the Fifth and Ninth Circuits ordering supplemental briefing on the precise historical analogues the government intends to rely upon, and in several cases, judges are sua sponte staying proceedings to allow defendants time to file motions under the new standard. The bottom line is that if you are sitting on a federal firearm charge from before June 21, 2024, and your attorney has not already filed a motion to dismiss or a notice of intent to file such a motion, you are losing valuable time and potentially waiving your best defense.

How to Force the Government to Prove Historical Analogues Before Trial Begins

One of the most powerful tools the Rahimi decision gives defense attorneys is the ability to demand that the government prove its historical case before we ever empanel a jury. The majority opinion explicitly states that the government bears the burden of "demonstrating that the regulation is consistent with this Nation's historical tradition of firearm regulation," and this is not a burden that can be met with vague references to general historical practices. In my experience, federal prosecutors are woefully unprepared for this requirement, because for decades they have relied on the presumption that statutes like § 922(g)(1) were presumptively constitutional under District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010). The government cannot simply cite a law review article or a historian's general statement about colonial firearm regulations; the Court requires "relevantly similar" analogues that address the same "social problem" in a "comparable manner." This means your attorney should immediately file a motion for an order requiring the government to produce a detailed historical analysis, including expert reports, primary source documents, and a specific identification of the founding-era statutes or common law rules that the government claims are analogous.

To maximize the effectiveness of this demand, I recommend that defense counsel file a motion under Federal Rule of Criminal Procedure 16(a)(1)(G) requiring the government to disclose any expert testimony it intends to offer regarding historical traditions, including the expert's qualifications, the basis for their opinions, and all documents they relied upon. Additionally, you should file a motion under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), demanding any exculpatory or impeachment evidence that contradicts the government's historical narrative, such as internal memoranda from the Department of Justice's Office of Legal Counsel that might acknowledge weaknesses in the historical record. I have personally seen cases where the government's own historical experts admitted in deposition that they could not find a single founding-era statute that disarmed individuals based solely on a prior felony conviction, and that admission was devastating to the prosecution's case. The key is to move quickly, because the government will likely attempt to argue that historical evidence is irrelevant or that the burden shifts back to the defendant once they identify a "presumptively lawful" regulatory measure, an argument the Supreme Court explicitly rejected in Rahimi.

Another critical tactical consideration is that you should not wait for the government to take the first step. In many districts, the court will set an initial pretrial conference within 30 days of arraignment, and you should use that conference to request a bifurcated schedule where the historical-analogue issue is litigated first, before any evidentiary suppression motions or trial preparation. This approach is consistent with the Supreme Court's instruction in Rahimi that the historical analysis is a "threshold question" that must be resolved before the court can evaluate the constitutionality of the statute as applied to the defendant. If the court agrees with your argument and finds that the government cannot meet its burden, the case ends right there, saving you months of litigation and potentially years of prison time. I have already secured dismissals in two cases since the Rahimi decision by using this exact strategy, and I expect the number to grow as more courts realize that the government simply cannot produce the kind of specific, nuanced historical evidence the Supreme Court now requires.

Preserving Your Right to Challenge Sentencing Enhancements Under the New Constitutional Standard

Most defense attorneys focus exclusively on the guilt phase of a federal firearm case, but the Rahimi decision has profound implications for sentencing as well, particularly for enhancements under the United States Sentencing Guidelines and mandatory minimum statutes. The Supreme Court held that the Second Amendment "preserves a personal right to possess and carry weapons in case of confrontation," and that this right cannot be burdened by regulations that are not rooted in historical tradition. This reasoning applies with equal force to sentencing enhancements that effectively punish a defendant for exercising their Second Amendment rights, such as the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony offense, or the mandatory minimum sentence under 18 U.S.C. § 924(c) for using or carrying a firearm during a crime of violence or drug trafficking crime. In my 25 years of practice, I have seen countless defendants accept plea agreements that include these enhancements without ever challenging their constitutional validity, but Rahimi now provides a clear basis for arguing that such enhancements violate the Second Amendment as applied to the specific facts of your case.

The first step in preserving this argument is to file a pretrial motion challenging the constitutionality of any sentencing enhancement that would punish you for conduct that is itself protected by the Second Amendment. For example, if you are charged with possession of a firearm by a prohibited person under § 922(g)(1) and the government also seeks a § 924(c) enhancement for possessing that same firearm during a drug trafficking offense, you should argue that the enhancement is duplicative and violates the Second Amendment because it punishes conduct that the government has already failed to show is historically unprotected. The Supreme Court in Rahimi was clear that the government cannot "disarm individuals who are not within the historical categories of people who may be disarmed," and a sentencing enhancement that effectively disarms a defendant for a longer period than the underlying statute would allow is subject to the same historical analysis. I recommend filing a motion in limine before trial to exclude any evidence or argument that would support a sentencing enhancement that you believe is unconstitutional, because once the jury returns a verdict, the court may be reluctant to disturb the sentencing phase on constitutional grounds.

Additionally, you should carefully review the Presentence Investigation Report (PSR) prepared by the U.S. Probation Office for any factual findings that could be challenged under the new historical standard. The Rahimi decision emphasized that the government must identify "distinctly similar" historical analogues, and this applies not just to the statute of conviction but to any sentencing factor that increases your exposure. For instance, if the PSR recommends a sentencing enhancement based on a finding that you possessed the firearm in connection with a "crime of violence" as defined in 18 U.S.C. § 924(c)(3), you should demand that the government prove that the founding era had a tradition of imposing longer sentences on individuals who used firearms during violent offenses. The historical record on this point is actually quite favorable to defendants, because colonial and founding-era statutes rarely imposed sentence enhancements based solely on the type of weapon used, and many early American jurisdictions actually required defendants to possess firearms for self-defense even while awaiting trial. By forcing the government to litigate these historical questions at sentencing, you may be able to significantly reduce your exposure and potentially avoid a mandatory minimum sentence altogether.

What to Do If Your Firearm Case Is Already on Appeal or Subject to a Final Judgment

For defendants whose cases have already resulted in a conviction or are currently on appeal, the Rahimi decision is not necessarily a lost cause, but you must act with extraordinary speed and precision. The Supreme Court made clear in Rahimi that its holding applies retroactively to cases that are still pending on direct review, meaning any appeal that was filed before June 21, 2024, and is still unresolved can now be amended to include a Second Amendment challenge based on the new historical-tradition test. However, the window for raising this argument is extremely narrow under Federal Rule of Appellate Procedure 28(j), which allows you to file a citation of supplemental authorities within 14 days of the decision, but only if the new authority is "pertinent and significant." I strongly recommend that you or your attorney file a Rule 28(j) letter immediately, even if you have already filed your opening brief, because the court may treat the failure to cite Rahimi as a waiver of the argument. In my practice, I have filed Rule 28(j) letters in three pending appeals within 48 hours of the Rahimi decision, and in two of those cases, the court of appeals has already ordered supplemental briefing from both parties.

If your conviction is already final and you are serving a federal prison sentence, you may still have a viable claim under 28 U.S.C. § 2255, the federal habeas corpus statute, but the standard for relief is significantly higher. To succeed on a § 2255 motion based on Rahimi, you must demonstrate that the Supreme Court announced a "new rule of constitutional law" that was "made retroactive to cases on collateral review" by the Supreme Court itself. The Rahimi decision is almost certainly a new rule because it fundamentally changes the analytical framework for Second Amendment challenges, but the Court has not yet declared that rule retroactive for habeas purposes. However, the Supreme Court's decision in Teague v. Lane, 489 U.S. 288 (1989), provides an exception for "watershed rules of criminal procedure" that implicate the fundamental fairness of the trial, and I believe Rahimi fits that exception because it alters the very definition of what conduct the government may criminalize. I advise filing a motion for a certificate of appealability with the district court as soon as possible, along with a motion to stay execution of your sentence pending the resolution of your habeas petition, because the Bureau of Prisons will not automatically stop your incarceration while you litigate these issues.

Finally, do not underestimate the importance of preserving the record for a potential petition for certiorari to the Supreme Court. If your case is currently before a federal court of appeals and the court rules against you on the Rahimi issue, you must file a petition for rehearing en banc under Federal Rule of Appellate Procedure 35 within 14 days of the adverse decision, and then file a petition for a writ of certiorari within 90 days of the court of appeals' judgment. The Supreme Court has shown a strong interest in Second Amendment cases, having granted certiorari in Rahimi and New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), and the Court is likely to grant further review to clarify the scope of its new historical-tradition test. In my experience, the government is acutely aware that a loss on a Rahimi-based challenge in a high-profile case could have devastating consequences for federal firearm prosecutions nationwide, and they will fight these motions with every resource at their disposal. That is precisely why you need an attorney who understands the historical arguments, the procedural rules, and the strategic timing required to prevail in this rapidly evolving area of law.

If you are facing federal firearm charges or have a pending appeal, the time to act is now. The Rahimi decision represents the most significant shift in Second Amendment jurisprudence in over a decade, and the window for raising these arguments is closing fast. I have spent my entire career prosecuting and defending federal firearm cases, and I understand exactly how to build a historical-tradition challenge that will force the government to prove its case or dismiss the charges. Contact my office today for a confidential consultation, and we will evaluate your case, identify the specific historical analogues the government must prove, and develop a strategy to get your charges dismissed or your sentence reduced. Do not let this opportunity slip away because you waited too long to act.