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Abstract
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On November 7, 2023, the Supreme Court heard oral arguments in US v Rahimi, a case that will have monumental implications for the 1 in 3 women who experience domestic violence each year1 and the government’s ability to address the epidemic of gun violence through the federal Violence Against Women Act (VAWA). Specifically, the Supreme Court considered whether to uphold a decision by the Fifth Circuit Court of Appeals that the federal government’s prohibition on firearm possession by individuals subject to court-ordered domestic violence restraining orders (issued after they have received notice and had an opportunity to be heard in court) violates the Second Amendment.
Reports of domestic violence, a problem that disproportionately affects the health and safety of women, have risen in recent years.2 The Supreme Court’s decision in US v Rahimi threatens to jeopardize further the health and safety of those experiencing domestic violence by inhibiting the government’s ability to protect them through state courts. This decision also has serious implications for public safety, indicating how far the Supreme Court is willing to go to prioritize individuals’ rights to possess and carry firearms over the government’s ability to protect public health and safety.
The Rise of Originalism
In June 2022, the Supreme Court’s decision in New York Rifle & Pistol Association v Bruen3 dramatically reinterpreted the Second Amendment and the expansiveness of individual rights. It was the first major Supreme Court case challenging gun regulations since District of Columbia v Heller in 2008. In that case, the court interpreted the text and original meaning of the Second Amendment to provide an individual right to possess firearms in the home but recognized that, under certain circumstances, the government may restrict that right to protect public safety. In the meantime, however, as the conservative supermajority has gained power on the Supreme Court, originalism, once considered a peripheral legal theory, has become the central focus for cases implicating individual rights, such as abortion and gun rights. Originalism posits that the Constitution should be interpreted through the lens of the framers’ original intent or its original public meaning—what would have been understood at the time the Constitution and subsequent amendments such as the Bill of Rights were adopted.4
In New York Rifle & Pistol Association v Bruen,3 the Supreme Court struck down New York’s regulatory scheme that gave public officials discretion in issuing permits for individuals to carry firearms in public. The court overtly dismissed considerations related to public health and safety, including the rising rates of gun violence and gun-related injury and death. Instead, the court set a high bar for the legislators and policymakers seeking to address the growing problem of gun violence. To limit an individual’s Second Amendment rights, the government must demonstrate not that it has a compelling interest in protecting public safety, but instead that it can point to a historical analogue—similar laws from the time of the founding of the country or in the 19th century when the Bill of Rights was applied to the states—that mirrors its current regulation. Writing for the majority, Justice Clarence Thomas asserted that “analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin.”3 But the Supreme Court’s vague historical analysis has left lower court judges with vast discretion to determine what laws are “consistent with the nation’s history and tradition.”3 For example, since New York Rifle & Pistol Association v Bruen was decided, courts have struck down a federal ban on possessing a gun if the serial number has been removed and a state ban on homemade “ghost” guns, suggesting that there are no historical analogues to support these firearm regulations.5
US v Rahimi
In US v Rahimi,1 the Fifth Circuit Court of Appeals considered whether the section of the VAWA prohibiting possession of a firearm by a person subject to a court-ordered domestic violence restraining order violates their Second Amendment right to possess and bear arms. Constrained by the originalist mode of analysis put forth by the Supreme Court in New York Rifle & Pistol Association v Bruen,3 the Department of Justice argued that in the early days of the US formation, analogous laws restricted firearm possession by individuals deemed to be dangerous. But the Fifth Circuit Court rejected this argument, finding that these laws were not sufficiently analogous to domestic violence restrictions. Those laws, the Fifth Circuit Court said, “disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims.”6 The Fifth Circuit Court treated as irrelevant the facts that in the early 19th century married women were considered the property of their husbands, enslaved Black women were the property of enslavers, and “wife beating” was legal.7. ...
Language: en |