By Robert Phillips, Deputy Disrict Attorney (Ret).

Second Amendment Update: Those Subject to a Civil Protection Order or Facing a Felony Stalking Charge Can Lawfully Be Prohibited from Possessing Firearms  

Case Citations 

• United States v. Rahimi (U.S. Supreme Court, June 21, 2024) 
• United States v. VanDyke (9th Cir. Oct. 27, 2025) 

On June 21, 2024, the United States Supreme Court decided the case of United States v. Rahimi (2024) 602 U.S. 680 [144 S.Ct. 1889; 219 L.Ed.2nd 351]. The case involved an individual (Zackey Rahimi) who was indicted for violating 18 U. S. C. § 922(g)(8), a federal statute prohibiting individuals subject to a domestic violence restraining order from possessing a firearm. Section 922(g)(8) is violated only if the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child (18 U.S.C. § 922(g)(8)(C)(i)), or uses,” attempts to use, or threatens to use “physical force” against those individuals (18 U.S.C. § 922(g)(8)(C)(ii)).  

Rahimi’s indictment stemmed from his having violated a state court order issued in Tarrant County, Texas, restraining him from having any contact with his girlfriend for two years, an order obtained after Rahimi assaulted her with a firearm in the presence of their young child. The order included a suspension of his license to carry a firearm. Rahimi soon violated the order by approaching the girlfriend at her home at night. He also began contacting her through several social media accounts. In addition, Rahimi threatened a different woman with a gun, resulting in a charge of aggravated assault with a deadly weapon. And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings. 

As a result, Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U. S. C. § 922(g)(8). Looking at a potential 10 years in prison (since amended to 15), Rahimi challenged the indictment as being in violation of his Second Amendment right to “keep and bear arms.” The district (trial) court denied Rahimi’s motion, a decision that he eventually (after pleading guilty) appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit first rejected his appeal, but then withdrew that opinion after the U.S. Supreme Court’s landmark Second Amendment case decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U. S. 1 [142 S.Ct. 2111; 213 L.Ed.2nd 387].  

In Bruen, the Supreme Court explained that when a firearm regulation is challenged under the Second Amendment, the government must show that the restriction “is consistent with the nation’s historical tradition of firearm regulation.” (Id., at pg. 24.) Using the test as set out in Bruen, an en banc (11-justice) panel of the Fifth Circuit reversed Rahimi’s conviction, concluding that Section 922(g)(8) does not fit within the nation’s tradition of firearm regulation. The U.S. Supreme Court granted certiorari. 

In an 8-1 decision, the U.S. Supreme Court reversed. The reversal was based upon the court first noting that the rule under Bruen is that 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. This is because since its “founding,” the nation’s firearm laws have historically included regulations to stop individuals who threaten physical harm to others from misusing firearms. As applied to the facts here, Section 922(g)(8) fits within this tradition. 

Per the court, the appropriate analysis in reviewing the constitutionality of a statute involves a consideration of whether the challenged regulation is consistent with the principles that underpin the nation’s regulatory tradition. (Bruen, at pgs. 26-31.) When a firearm regulation is challenged under the Second Amendment, the government must show that the restriction “is consistent with the nation’s historical tradition of firearm regulation.” (Id., at pg. 24.)  

A court must ascertain whether the statute in issue is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” (Id., at pg. 29, and fn. 7.) Why and how the regulation at issue burdens the right are central to this inquiry. As Bruen explained, however, a challenged regulation that does not precisely match its historical precursors “still may be analogous enough to pass constitutional muster.” (Id., at pg. 30.)  

In this case, Rahimi’s facial challenge to Section 922(g)(8) required him to “establish that no set of circumstances exists under which the act would be valid.” (United States v. Salerno (1987) 481 U.S. 739, 745 [107 S.Ct. 2095; 95 L.Ed.2nd 697].) Rahimi failed in this regard. To the contrary, the court held that Section 922(g)(8) is constitutional as applied to the facts of Rahimi’s case. Rahimi had been found by a court to pose a credible threat to the physical safety of others, pursuant to section 922(g)(8)(C)(i). In light of this evidence, the government offered ample evidence to the effect that the Second Amendment has always, historically, permitted such individuals to be disarmed. 

Meanwhile, while Rahimi was still contesting his conviction, Ryan VanDyke was contesting Idaho state charges stemming from being armed while subject to a civil protective order and a “no-contact” order while facing a felony stalking charge. This case was eventually reported in the recent Ninth Circuit Court of Appeals decision of United States v. VanDyke (9th Cir. Oct. 27, 2025) F.4th  [2025 U.S.App. LEXIS 28057].     

VanDyke’s criminal charges resulted from him walking into an Idaho state courthouse in May of 2023 – expecting to attend a pretrial conference for his pending stalking case – with a fully loaded Smith & Wesson .38-caliber revolver in his backpack. As a result of this stupid transgression, he was charged in federal court with a violation of 18 U.S.C. § 922(g)(8)(C)(ii), which (as with Rahimi in his case) prohibits firearm possession by an individual subject to a court order that “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.” 

VanDyke’s legal problems surfaced after an incident involving a former girlfriend, the circumstances of which are not described by the court. VanDyke was placed under a civil protection order in April 2022, forbidding him from contacting, stalking, or using physical force against the former girlfriend or her minor children. Two months later, however, he was convicted in state court of using a telephone to annoy, harass, intimidate or threaten his victim. As a result, he was placed on two years’ probation. 

Not letting a little thing like a restraining order, nor state probation, deter him, VanDyke continued his stalking activities. As a result, in October, 2022, he was charged in a new case with felony stalking after engaging in “a course of conduct that seriously alarms, annoys or harasses the victim,” pursuant to Idaho Code § 18-7906. This charge was the result of texting and leaving packages for the victim. He also was alleged to have followed her and of “put(ting) an app on her phone.” And he e-mailed her family and sent items to them, asking them to relay the messages and gifts to her. 

This resulted in a new “no-contact” order, issued as permitted by Idaho law. This order prohibited VanDyke from, among other things, “us[ing], attempt[ing] to use or threaten[ing] use of physical force, [or] engag[ing] in any other conduct that would place the protected person(s) in reasonable fear of bodily injury.” Of significance here, the no-contact order also stated as follows: “As a result of this order, it may be unlawful for you to purchase or possess a firearm, including a rifle, pistol, or revolver, or ammunition pursuant to federal law under 18 U.S.C. § 922(g)(8).” At his hearing, the state magistrate judge specifically advised VanDyke that he was “to have no firearms in his possession including his residence, vehicles, sheds, or storage units.” 

It was with all this pending that VanDyke stupidly chose to enter a state courthouse with a loaded firearm in his backpack. As noted, he was subsequently indicted in federal court on a violation of 18 U.S.C. § 922(g)(8)(C)(ii). VanDyke moved to dismiss the indictment, arguing that Section (C)(ii) violated the Second Amendment, at least as applied to him. The district court, not having the benefit of the Rahimi case that was still pending at that time, granted VanDyke’s motion, agreeing with his argument that the Second Amendment protected his right to possess a firearm.  

The Supreme Court’s decision in Rahimi was rendered on June 21, 2024. By the time VanDyke’s case was heard, the Ninth Circuit Court of Appeals had no problem reversing the district court’s dismissal of VanDyke’s case, using Rahimi. Rahimi is right on point with VanDyke’s situation, involving the same federal statute (i.e., 18 U.S.C. § 922(g)(8)(C)(ii)) and the same stalking-type situation.  

So, I won’t bore you with a reiteration of the VanDyke court’s protracted analysis of the legal concepts dealing with why statutes prohibiting stalkers from possessing firearms are constitutional despite the protections of the right to “keep and bear arms” as afforded under the Second Amendment. But as summarized by the court, we should at least note the following conclusion: “We...have a long historical tradition concerning ‘categories of persons thought by a legislature to present a special danger of misuse. (citing United States v. Rahimi, supra, at pg. 698.) Such categories include criminals facing serious pending charges on pretrial release. See United States v. Perez-Garcia, 96 F.4th 1166, 1182-84 (9th Cir. 2024)…VanDyke fits this description to a tee. We conclude that Section 922(g)(8)(C)(ii) is constitutional as applied to VanDyke.”