Can the Federal Legislative Efforts to Combat Domestic Violence Survive Bruen?

In the aftermath of the Bruen decision, some courts have struck down legislative initiatives passed in recent decades specifically designed to combat domestic violence. (Andrew Willinger and Jake Charles summarized one such recent decision, United States v. Rahimi, here and here.)  These federal, state, local and tribal initiatives share one overarching goal: to protect domestic violence victims from harm and fatal injury.

This post will focus on the two federal firearm laws specifically targeting domestic abusers: 18 U.S.C. § 922(g)(8), which disallows persons subject to qualifying protection orders from possessing firearms; and § 922(g)(9), which disallows convicted domestic violence misdemeanants from possessing firearms.[1] I served as both an AUSA and as the National Domestic Violence Coordinator for DOJ for over 20 years. In the latter role, I represented the U.S. Attorney community when DOJ was formulating domestic violence policy and also provided training and technical assistance to federal prosecutors nationwide to assist in the implementation of Sections 922(g)(8) and (9) and other federal domestic violence laws. These two firearm laws are critical to the federal effort to fight domestic violence and promote victim safety.

The results of the federal efforts had been promising. The Supreme Court had three pre-Bruen opportunities, beginning in 2008, to evaluate Section 922(g)(9). In each instance, the Court not only affirmed convictions but also emphasized the importance of disarming domestic abusers. See, e.g., United States v. Hayes, 555 U.S. 415 (2009) (allowing generic assault statutes to qualify as domestic violence misdemeanors); United States v. Castleman, 572 U.S. 157 (2014) (allowing common law battery use of force to qualify as a domestic violence misdemeanor); Voisine v. United States, 579 U.S. 686, 689 (2016) (allowing reckless conduct to satisfy Section 922(g)(9) while also noting that “[f]irearms and domestic strife are a potentially deadly combination.”) Did the Bruen majority intend for these fairly recent laws, passed after Congressional hearings documenting the need for federal intervention to combat the nationwide epidemic of domestic violence, to survive its new legal framework for Second Amendment challenges? Despite the Rahimi decision, which struck down § 922(g)(8), there is room for guarded optimism that, if this case makes it to the Supreme Court, the Court will label Rahimi as an extreme outlier and reverse the decision.

Here are two major reasons that courts can continue post-Bruen to uphold the constitutionality of Sections 922(g)(8) and (9): (1) an expansive reading of “relevantly similar” historical laws will allow the prohibition on firearm possession by dangerous people to serve as an analogue supporting laws disarming domestic violence offenders; and (2) the more “nuanced “approach endorsed in Bruen will allow for consideration of changing societal views regarding domestic violence. Variations on these approaches have been relied on by several post-Bruen lower courts to reject the extreme reasoning used in Rahimi.

Heller and Bruen both held that the Second Amendment applies to “law-abiding citizens.” The Rahimi court rejected the application of what it describes as a “gloss” to limit the reach of the Second Amendment to “law-abiding” citizens. Jake Charles discussed the fallacy of this argument in a prior post regarding Rahimi.  

Bruen also requires a search for “relevantly similar” historical laws that disarmed domestic abusers. Besides the concern that any historical search is subject to cherry-picking, and narrowness or broadness in the selection and reading of historical sources, courts have used the same “dangerousness” lens applied to uphold § 922(g)(1) convictions to affirm the post-Bruen constitutionality of both Sections 922(g)(8) and (g)(9). A court evaluating a § 922(g)(9) challenge found that “[d]omestic violence misdemeanants can logically be viewed as ‘relevantly similar to felons’ who should be ‘denied weapons for the same reasons.’” United States v. Jackson, 2022 WL 3582504, at 4 (W.D. Okla. Aug. 19, 2022). That same judge upheld a § 922(g)(8) charge, finding that “Section 922(g)(8) and (9) are similar. Indeed, as noted by the Tenth Circuit, ‘both [§ 922(g)(8) and § 922(g)(9)] prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence.’” United States v. Kays, 2022 WL 3718519, at 3 (W.D. Okla. Aug. 29, 2022).  He further observed that “[t]hose subject to a domestic violence protective order should logically be denied weapons for the same reasons that domestic violence misdemeanants are.” In Kanter v. Barr, then-Judge Amy Coney Barrett similarly observed that, “no matter how you slice these numbers [domestic violence statistics], people convicted of domestic violence remain dangerous to their spouses and partners” (quoting an earlier circuit decision).

Using Bruen’s sole reliance on historical text and tradition existing in 1791 to preclude modern legislative efforts to protect domestic violence victims rings particularly hollow when one considers the change in societal attitudes toward domestic violence offenses. Our society no longer tolerates domestic violence and, over the last few decades, criminal statues have been enacted both to prevent domestic violence and to hold offenders accountable. A district court addressed this issue head on in denying a motion to dismiss a § 922(g)(9) indictment post-Bruen, concluding that, “[b]ecause the legal landscape surrounding crime and punishment was vastly different [at the time of the Founding], the absence of an equivalent prohibition on firearm possession by people convicted of domestic violence offenses is not dispositive.” United States v. Nutter, 2022 WL 3718518, at 5 (S.D. W.Va. Aug. 29, 2022).

Bruen left open the door for this very argument, observing that “other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.” Yet, what is this more nuanced approach? Will the more nuanced approach allow courts to consider arguments supporting federal domestic violence laws? Will courts now be able to consider that protection orders contain due process safeguards and are a powerful tool for keeping victims safe from their abusers? That an abuser’s access to a gun makes it five times more likely that a domestic violence victim will be killed? That almost half of all female homicide victims are killed by an intimate partner?  That “[f]irearms were used in 54.1 percent of domestic homicides . . . [and t]he use of firearms in domestic homicides was associated with a 70.9 percent increased incidence of additional victims compared with nondomestic homicides”?

That the legislative history behind the enactment of Section 922(g)(9) demonstrated the need for this statute to address historical downgrading of crimes committed by intimate partners? That in over 50% mass shootings the perpetrator targeted an intimate partner or family member? That domestic violence can escalate over time, increasing the likelihood of fatality?

The pre-Bruen analysis of the importance of Sections 922(g)(8) and (g)(9) to combat domestic violence should still hold sway.  For example, courts observed before Bruen that the discrete class affected by § 922(g)(8) is comprised of individuals who, after an actual hearing with prior notice and an opportunity to participate, have been found by a state court to pose a “real threat or danger of injury to the protected party,” United States v. McGinnis, 956 F.3d 747 (5th Cir 2020); and that “the obvious utility of Congress' chosen means in advancing Congress' indisputably important ends relieves trial courts of the need to ruminate in every case on what might have been if not for an indictment under § 922(g)(8).” United States  v. Mahin, 668 F.3d 119 (4th Cir. 2012). Similar arguments were offered to support the enactment of § 922(g)(9). As Senator Lautenberg, the architect of § 922(g)(9) explained:

Under current Federal law, it is illegal for persons convicted of felonies to possess firearms, yet, many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies. At the end of the day, due to outdated laws or thinking, perhaps after a plea bargain, they are, at most, convicted of a misdemeanor. In fact, most of those who commit family violence are never even prosecuted. But when they are, one-third of the cases that would be considered felonies, if committed by strangers, are instead filed as misdemeanors. The fact is that in many places domestic violence is not taken as seriously as other forms of brutal behavior. Often acts of serious spouse abuse are not even considered felonies.

These important rationales need not evaporate with the Bruen decision. In their concurrence, Chief Justice Roberts and Justice Kavanaugh cabined the holding by saying that it “decides nothing about who may lawfully possess a firearm.”  And Congress seems as determined as it was pre-Bruen to continue to hold domestic-violence offenders accountable. Just one week after the Bruen decision, Congress passed the Bipartisan Safer Communities Act which, in part, expanded the definition of intimate partners protected under §922(g)(9) to include dating partners.

Sound legal bases and policy rationales support the constitutionality of Sections 922(g)(8) and (g)(9). We will wait and see if courts follow the extreme Rahimi decision, or instead embrace both the “dangerousness” and “more nuanced” arguments endorsed in Bruen.

[1] Although I understand that there are differences in these laws that may distinguish one from the other in a post-Bruen world, the arguments to support both statutes are similar.