The Second Circuit recently issued a decision that confirms that even after New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), those who have been convicted of a misdemeanor crime of domestic violence may not possess a firearm. In United States v. Simmons, the Second Circuit (Nardini, Pérez, and Kahn) upheld the constitutionality of 18 U.S.C. §§ 922(g)(9), which provides that those who have been convicted of a misdemeanor crime of domestic violence may not “possess in or affecting commerce, any firearm or ammunition.”
Background
In 2011, Valdez Simmons was convicted in New York state court of assault in the third degree on the grounds that he beat the mother of his infant child. According to an affidavit submitted by the victim, Simmons repeatedly bit the woman and punched her face and body. This conviction represented one of more than a dozen state court convictions that preceded his prosecution in this case.
Subsequently, in May of 2020, a pedestrian in the Bronx alerted a police officer that a man, later identified as Simmons, had a gun. When Simmons was confronted by the officer, Simmons ran and was pursued by the officer into a narrow driveway between two buildings. After Simmons rose from behind a car parked in the driveway, the officer shouted for Simmons to lie on the ground. Instead, Simmons walked towards the officer. Eventually, Simmons lay on the sidewalk and was arrested. During this incident, officers found a gun and ammunition under the car in the driveway, where Simmons had previously hidden.
In June 2020, a grand jury returned a one-count indictment charging Simmons with possessing a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(9). Simmons pled guilty on February 22, 2021, and was sentenced to forty-eight months of imprisonment and three years of supervised release (in addition to the 922(g)(9) offense, the court also considered the impact of Simmons’s prior state court convictions). After his sentencing, the United States Supreme Court issued its decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). The Court allowed Simmons to file supplemental briefing challenging his conviction under Bruen as a violation of the Second Amendment.
The Second Circuit’s Decision
The Second Circuit, analyzing Bruen, agreed with other Circuits that have determined that 922(g)(9) remains constitutional. Under Bruen, the panel found that it must apply a two-step framework to determine whether a statute violates the Second Amendment. First, it looks to whether “the Second Amendment’s plain text covers an individual’s conduct.” Bruen, 597 U.S. at 17. If it does, then “the Constitution presumptively protects that conduct,” and Court proceeds to step two. Id. At the second step, the government must “justify its regulation” by demonstrating that it is “consistent with this Nation’s historical tradition of firearm regulation,” which requires the government to “identify a well-established and representative historical analogue” to the challenged regulation. Id. at 17, 30 (emphases omitted). “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.” Id. at 17 (internal quotation marks omitted).
The Second Circuit found that, although the Second Amendment’s plain text covers Simmons’ conduct, the Government had met its burden of showing that § 922(g)(9) is consistent with the historical tradition of firearm regulation. As discussed below, the problem for Simmons came at the second-step of the Bruen test.
First, the Second Circuit found that, as the Supreme Court set out in Bruen, the Second Amendment protects the individual’s right to carry a handgun in self-defense outside the home. Since § 922(g)(9) prohibits certain individuals – those who have been convicted of domestic violence – from carrying a handgun in self-defense outside the home, the Second Circuit found that § 922(g)(9) covers conduct presumptively protected by the Second Amendment. The Second Circuit further found that the Supreme Court’s decision in United States v. Rahimi, 602 U.S. 680 (2024) suggests that those convicted of the misdemeanor of domestic violence are among “the people” that the Second Amendment protects, citing the Sixth Circuit’s recent opinion reaching the same conclusion, United States v. Gailes, 118 F.4th 822, 826 (6th Cir. 2024). In so deciding, the Second Circuit expanded on its previous decision in Zherka v. Bondi, which held that the Second Amendment’s reference to “the people” includes “all Americans,” including even violent felons. 140 F.4th 68, 76 (2d Cir. 2025). The Second Circuit found that because the Government offered no basis to distinguish domestic violence misdemeanants from felons for the purpose of defining “the people,” or otherwise argue that Simmons is not part of the political community included in “the people,” the Constitution presumptively protected Simmons’ right to carry a firearm.
However, the Second Circuit held that Simmons’ challenge to § 922(g)(9) failed at the second step (as has every other Circuit that has considered a challenge to § 922(g)(9)). Specifically, the Second Circuit drew on the Supreme Court’s decision in Rahimi, which held that § 922(g)(8), which similarly disarms those subject to domestic violence restraining orders, was constitutional, and its own prior decision in Zherka, which found that § 922(g)(1) (which prohibits felons from possessing firearms) was constitutional. In Rahimi, the Supreme Court cited to a history of regulations, including surety and “going armed” laws that targeted individuals who physically threatened others. The Supreme Court found that “the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”
The Second Circuit held that like § 922(g)(8), § 922(g)(9) is analogous to these founding era laws to the extent it disarms individuals deemed dangerous to the safety of others, including those who have committed domestic violence. The Second Circuit noted that § 922(g)(8) and § 922(g)(9) are not exactly analogous, because § 922(g)(8) requires a forward-looking determination regarding whether an individual represents a threat to the safety of a family member, and § 922(g)(9) does not. However, the panel found that its determination in Zherka that all convicted felons could be disarmed under § 922(g)(1) removed the significance of that distinction. In Zherka, the Second Circuit identified and relied upon a history and tradition of disarming classes of persons that were deemed dangerous, even when there is no express temporal limitation on disbarment. Drawing on that same tradition, the panel found that domestic abusers could be prohibited from carrying firearms under § 922(g)(9).
Commentary
The Second Circuit’s decision here is not surprising and shows a path forward for common-sense gun regulation post-Bruen, even as it may disappoint defendants who are prosecuted under Section 922(g). While Bruen has changed the mode of reasoning to be used when construing the constitutionality of particular statutes, in that courts now need to look for a historical analogue to which to tie the legislation, the outcomes appear to be largely unchanged. If Congress determines that a group of persons is dangerous, those persons are not permitted to carry firearms, notwithstanding Bruen’s novel interpretation of the Second Amendment. Moreover, the Simmons decision confirms that, like the Supreme Court in Rahimi and the other Circuits to have construed Bruen, the Second Circuit does not see Bruen as necessitating a seismic shift with regard to existing criminal firearm prohibitions. The Second Circuit’s ability to fit Section 922(g)’s different prongs—including, so far, 922(g)(1), (8), and (9)—into the contours of the Bruen test highlights the slipperiness of that test and may also be a response to the initial uncertainty wrought by Bruen.
