A loose thread in the Supreme Court’s latest gun decision could ultimately protect firearm bans in connection with domestic violence restraining orders outside of the limited circumstances the justices acknowledged.
last year America vs. Rahimithe Supreme Court upheld a federal law banning gun possession by individuals subject to certain domestic violence restraining orders. However, the court carefully reversed that decision, upholding the statute only in cases that included a finding that the respondent “posed a credible threat to the physical safety” of the intimate partner. Left unresolved is the law’s alternative disarmament clause, which applies when a restraining order prohibits the use or threat of physical force “by its terms,” even if there is no judicial determination that a person poses a threat to the safety of another person.
Most states, on the other hand, require or allow firearm bans as part of their own protective order systems, often without requiring a “credible threat” finding. The result is a situation in which thousands of state-issued protective orders are left in uncertain constitutional territory.
There is one detail that has been overlooked Rahimi It shows you how to overcome that uncertainty. There, the defendant agreed not only to the protection order but also to the request to disarm. This fact raises a seemingly simple but consequential question. When someone agrees to a confidentiality order restricting their possession of a firearm, does that person voluntarily waive any subsequent Second Amendment claims? The Supreme Court did not address this issue, and several friend-of-the-court briefs noted this issue, but the parties themselves did not brief on this issue.
Questions matter. As Professor Bonnie Carlson recently observed, while the majority of protective orders are issued by consent, 62% in Delaware in 2013 and more than 56% in Pennsylvania in 2012, many of those orders lack judicial findings of a credible threat. If agreeing to a protective order to disarm is tantamount to a waiver of gun rights, many of those orders could withstand constitutional challenge even before a Second Amendment analysis.
The idea that individuals can waive their constitutional rights is not new. For nearly a century, the Supreme Court has held that such waivers generally must be “voluntary, knowledgeable, and prudent,” a standard that stems from a 1938 case. Johnson vs. Zerbstthe court considered a waiver of the right to counsel under the Sixth Amendment. In that context, when life or liberty is at stake and the defendant is unrepresented, the court strongly suggested that the trial judge should take an active role in ensuring that the waiver is “prudent and competent.” However, courts do not insist on such procedures outside of the right to counsel in criminal cases. For example, the doctrine of waiver under the First, Fourth, and Fifth Amendments routinely permits waiver by default of consent or objection without concurrent judicial oversight. What suffices for the right to bear arms is an open question.
This year, the Iowa Supreme Court State vs. Colebecame the first state high court to apply the immunity doctrine to firearm restrictions in subsequent orders of protection. Rahimi. Jordan Cole agreed to a one-year order banning further abuse or intimidation. It also prohibits the possession of firearms, requires the surrender of firearms to law enforcement, and warns that the order “may also affect the right to possess or obtain firearms and ammunition under federal and state law.” However, it is notable that the order did not include a finding that he posed a “credible threat.” Cole was later found in possession of firearms (some of which were allegedly stolen) and was charged under Iowa law, arguing that the conviction violated his gun rights under both the federal and state constitutions.
The Iowa court rejected that argument. It was inferred that Mr. Cole voluntarily entered into an order expressly prohibiting him from possessing a firearm. His lawyer confirmed that he agreed to it. Although there was no record of the hearing in which the consent order was entered, the court determined that the written record was sufficient. In other words, the firearms ban was clear, the potential legal ramifications were explained, and there was no sign of enforcement. The court pointed out as follows: zerbstStyle dialogue, a judicial review of the record as to whether the waiver was knowing, prudent, and voluntary, may have been desirable but was not constitutionally required. After all, people routinely waive other important constitutional protections without going through such a process. They consent to police interrogation under the Fifth Amendment, and they consent to searches under the Fourth Amendment.
opposing opinion call took a more stringent view, stressing that without hearing transcripts or records, it is impossible to know whether Cole was advised about firearms, gun rights, or future prosecution during the hearing. Iowa Senior Judge Stephen Carroll wrote: call The Duke Firearms Law Center’s blog similarly concludes that “legally, waivers serve as gatekeepers that allow courts to avoid substantive constitutional review, but… trial judges should engage in careful dialogue to prevent token waivers before accepting a defendant’s consent to an order restricting firearm rights.” complete zerbst However, a colloquial translation for all protective consent orders would turn the Second Amendment into a super-right and would not fit with how waivers are treated in the context of similar constitutional rights. The U.S. Supreme Court warned: McDonald’s vs. City of Chicago Not subjecting the right to bear arms to “an entirely different set of rules than those guaranteed by any other bill of rights.” This guidance should apply to rules that dilute any of the following rules: or Turbocharge the Second Amendment. On the other hand, in practice, requiring such transcripts imposes a significant administrative burden, especially when the terms of the order are clear and voluntary.
The Iowa decision thus embodies a new doctrinal debate. If a defendant expressly consents to a confidentiality order prohibiting him from possessing a firearm, and the order itself warns that violation of its provisions may result in both state and federal consequences, can a court treat that consent as a waiver of a subsequent Second Amendment challenge?Are written notice, confirmation of counsel, and an opportunity to object sufficient to make the waiver voluntary, knowing, and prudent?
call While it suggests a promising path forward, it also highlights areas for improvement. The consent order there warns that its issuance “may affect” the defendant’s right to possess a firearm, but more directly, by consenting to the order, the defendant: teeth Waiver of Challenges Based on Federal or State Constitutional Firearms Rights. The order also prohibited the possession of “firearms, offensive weapons, or ammunition,” but its language was broader than necessary to accomplish its purpose. If the risk being addressed is gun violence, limiting the prohibition to firearms can maintain its protective effect while reducing the burden on Second Amendment rights that extend beyond firearms. And since voluntariness is central, it is helpful to include an explicit acknowledgment that the respondent is of sound mind, acting freely, and understands firearm regulations.
deeper lessons call Not only is exemption possible, it is also possible to structure it. A clear draft can transform uncertain constitutional issues into stable legal outcomes. In the post-bridge and Rahimi As courts around the world continue to examine the contours of the right to keep and bear arms, state judges, attorneys, and drafters of nondisclosure orders have an opportunity to create a record that reflects true, informed consent to disarm. Doing so would not only strengthen the enforcement of these orders, but also align with the Constitution’s core principle that rights, even basic ones, can be consciously, wisely, and voluntarily waived.
Eric Ruben is an Associate Professor of Law at SMU Dedman School of Law and a Brennan Center Fellow. William Gollnick, a law student at SMU, provided excellent research assistance.
Recommended quote: Eric Ruben Can I waive my right to bear arms?Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (November 13, 2025), https://statecourtreport.org/our-work/analysis-opinion/can-right-bear-arms-be-waived
