Domestic Violence and the Home: Hard Questions for the Second Amendment

  • Date:
  • November 07, 2019

October was Domestic Violence Awareness Month, and as Jake noted in his post earlier this week, the Center fortunately had a chance to help coordinate a well-attended event on the topic, which was co-sponsored by the Duke Human Rights Center at the Franklin Humanities Institute, the Duke Human Rights Center at the Kenan Institute for Ethics, the Coalition Against Gendered Violence, the Human Rights Law Society, the International Law Society, and the Women Law Students Association. The breadth of the sponsorship and positive response to the event were appropriate, since there is broad support for the wisdom and constitutionality of laws targeting the link between firearms and domestic violence (DV). Such laws are politically popular, and have been overwhelmingly upheld against Second Amendment challenges.

And yet, at least at a conceptual level, the application of DV prohibitors to gun possession in the home raises some difficult questions for standard positions in the Second Amendment debate. As readers of this blog will know, the degree to which the right to keep and bear arms is home-bound—or at least home-centric, in the sense that it is strongest within the home—is perhaps the most important and most contested issue in Second Amendment law and scholarship. But that debate has not always grappled forthrightly with the possibility that limiting the right to the home, or at least identifying the home as its apex (a goal of many gun regulation supporters) might fail to address, and could even exacerbate, the threat of armed domestic violence.

Roughly half of all firearms-related homicides occur within the home, rather than in the mass shootings—let alone dark alleys and parking lots—that tend to be central in the public gun debate. Put simply, a great deal of gun violence in the United States is “private.” And while it certainly makes sense to focus on gun rights and regulation in public places, since that’s where many of the current political and constitutional controversies lie, it is important not to lose sight of what is—especially for women—the primary site of gun violence: the home.

Those gendered differences are impossible to ignore. Men and women face strikingly different realities with regard to gun-related violence, including homicides. For women, the primary threats are not lurking strangers, but intimate partners. A recent study from the Centers for Disease Control, for example, suggests that most women who are murdered in the United States are killed by an intimate partner, and that more than half of those murders involve a firearm. Roughly 4.5 million women in the United States have been threatened by an intimate partner, and about 1 million have been shot, or shot at, by one.

Of course, there are a variety of responses to these numbers. One would be to say that victims of intimate partner violence (who are overwhelmingly but not exclusively women) should arm themselves in self-defense. But studies have suggested that gun ownership is ineffective as a means of self-defense for women facing intimate partner violence, and can even exacerbate the risks. At the very least, when the threat emanates from within the home, the prospect of arming oneself against it presents serious complications.

This is nothing new for feminist legal scholars, who have spent decades unpacking the concept of “the home” and the division between public and private. (Here’s Jeannie Suk explaining some of the themes from her book, At Home in the Law.) But Second Amendment scholars should also take note: An uncritical embrace of the home-centric right to keep and bear arms could weaken the constitutional foundations of DV laws by providing abusers with a stronger argument for “private” gun possession in their homes.

To be clear, DV laws are not in immediate danger. Federal law, and the laws of many states, already restrict gun possession by those convicted of a DV misdemeanor or subject to a DV restraining order, and enforcement efforts are apparently ramping up in recent years. Those laws have almost universally been upheld against Second Amendment challenges. And as a statutory matter, in cases like Voisine and Castleman, the Court has generally interpreted the domestic violence prohibitor broadly.

Still, there may be some cause for unease. In Voisine, the Court held that the federal DV prohibitor applies to a person convicted under a misdemeanor assault statute encompassing “reckless” conduct. What drew attention, however, was not that narrow legal question, but the fact that it marked the first time in a decade that Justice Thomas asked a question at oral argument. As the attorney for the government was concluding, the Justice spoke up. “One question,” he said. “[T]his is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?” The question proved to be a reliable indicator of his views. In a dissenting opinion, Justice Thomas argued that the majority’s construction of the statute rendered it unconstitutional. No other Justice joined that part of his opinion.

But Justice Thomas was also writing for himself in Printz when he noted the “impressive array of historical evidence” and the “growing body of scholarly commentary [that] indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.” Eleven years later, the Court held as much in Heller. An uncritical adoption of the home-centric view of the Amendment could raise similar challenges for DV laws in the future.

*This post is adapted from “Domestic Violence and the Home-Centric Second Amendment,” forthcoming in the Duke Journal for Gender Law & Policy.