[This post previously ran as a guest post on the Balkanization blog here.]
Since 1994, persons subjected by courts to qualifying domestic violence restraining orders have been prohibited from possessing a firearm under 18 U.S.C. § 922 (g)(8). In United States v. Rahimi, the Fifth Circuit declared that prohibition unconstitutional under the Second Amendment.
On November 7, the Supreme Court will hear argument in Rahimi. The case provides an occasion for the Justices to clarify the kinds of public safety laws the Second Amendment permits under its recent decision in New York State Rifle & Pistol Association v. Bruen. Will the Roberts Court read the Second Amendment to forbid government from enacting a targeted weapons regulation responding to the well-established link between guns and domestic violence? Today, “[n]early half of all women murdered in the United States are killed by a current or former intimate partner, and more than half of these intimate partner homicides are by firearm. Women are five times more likely to be murdered by an abusive partner when the abuser has access to a gun.”
Rahimi has rightly drawn attention because of the domestic violence stakes and because of the questions the case raises about the historical-analogical method that now governs Second Amendment cases. The lower federal courts have struck down an increasing number of gun laws since Bruen, interpreting it along the lines of the Fifth Circuit’s decision striking down the domestic violence prohibitor in Rahimi.
We show that the domestic violence prohibitor is constitutional under Bruen’s historical test, and explain how the Fifth Circuit and other federal courts are manipulating levels of generality in applying the test so that it can be used to strike down nearly any modern gun law. Rahimi therefore provides a critical occasion for the Court to uphold the domestic violence prohibitor and to reject the asymmetric application of Bruen’s analogical framework that the Fifth Circuit employed in justifying the law’s invalidation.
Both District of Columbia v. Heller and Bruen authorize modern forms of gun regulation. As we demonstrate in prior work, Part III of Justice Scalia’s majority opinion in Heller affirms a common law tradition that has long authorized laws protecting the public against weapons threats. Bruen specifically contemplates change in forms of regulation over time; it directs judges to use history as a guide to determine the kinds of regulation that are “consistent with this Nation’s historical tradition of firearm regulation.” Bruen does not require gun laws to repeat the past like some kind of grotesque Groundhog Day.
But—ironically enough, on Groundhog Day of last year—the Fifth Circuit struck down 922(g)(8). The law was adopted in 1994 as society came to better recognize women as equal rightsholders. As a critical mass of women entered politics, they demanded that government address the role that guns play in intimate partner violence—in enabling an abusive partner or ex-partner to coerce, threaten, and terrorize and to inflict injury and death, in events that sometimes explode beyond the original target to include multiple victims and even trigger mass shootings.
To justify invalidating 922(g)(8), the Fifth Circuit’s decision in Rahimi employs an approach we have called selective and asymmetric updating. That approach interprets the Second Amendment to protect weapons like AR-15s that did not exist at the Founding, while insisting that government can only regulate the use of such weapons if it enacts laws that closely resemble legislation enacted in the ratification era. The Fifth Circuit invokes Bruen’s history and tradition method to perpetuate, under Second Amendment cover, a tradition of gun violence between intimates that the nation enacted 922(g)(8) to repudiate. Is this tradition of weapons threats and violence a tradition that the Supreme Court is now prepared to entrench and honor in the Second Amendment’s name?
The Court’s decisions in Heller and Bruen authorize change, consistent with historical tradition, in regulation as well as rights. As Chief Justice Roberts put it at oral argument in Heller, “[W]e are talking about lineal descendants of the arms but presumably there are lineal descendants of the restrictions as well.”
Bruen suggests that application of its historical-analogical test depends on whether the modern law being challenged addresses a “societal problem” that the Framers might similarly have addressed but choose not to—or whether instead the problem the law addresses is novel, involving “unprecedented societal concerns or dramatic technological changes” unforeseen by the Framers. In the latter case, the burden on the government to show historical analogues is lessened. We show that under either of these paths, the government should prevail in Rahimi, but in doing so we also spotlight how Bruen’s test can be manipulated: judges can require regulation closely to resemble laws of the distant past even as they define the scope of the right expansively to protect weapons whose lethality the framers could not have fathomed.
So what “societal problem” does the domestic violence prohibitor address?
By its terms, 922(g)(8) specifically addresses possession of a “firearm or ammunition” by individuals subject to qualifying domestic violence restraining orders. It does not address domestic violence in any other context. So characterized, 922(g)(8) addresses a societal problem that the Constitution’s ratifiers did not experience.
Domestic violence by gun was not a significant societal problem when the Second Amendment was adopted. In the Founding era, “[f]amily and household homicides—most of which were caused by abuse or simple assaults that got out of control—were committed almost exclusively with weapons that were close at hand,” not loaded guns but rather “whips, sticks, hoes, shovels, axes, knives, feet, or fists.” A drunken, angry, or homicidal abuser would’ve been far less likely to load and fire an unwieldy black powder musket.
It is therefore unsurprising that Founding era legislatures did not adopt laws specifically disarming domestic abusers—their guns were not the problem. Simply put: One important reason that the framers did not regulate the use of guns in domestic violence was that guns did not play a significant role in violence between intimates until much later.
Some advocates, scholars, and judges have framed the relevant societal problem more broadly—as domestic violence full stop, or even interpersonal violence. Rahimi’s brief and others emphasize that Americans at the time of ratification did respond to such violence, but did not enact laws specifically permitting judicial orders disarming those who threatened domestic abuse. The common law instead provided a battered woman, her relatives, and her community various alternative forms of deterrence and protection: homicide law, divorce law, and, as Laura Edwards has shown, peace warrants and sureties. There was, in other words, an “historical tradition” of responding to domestic violence, even if that tradition did not provide women equal protection of the laws.
In Rahimi the Fifth Circuit points to these earlier forms of regulation as grounds for striking down 922(g)(8) because none of the identified historical antecedents was sufficiently like 922(g)(8) in barring gun possession. In doing so, the court engineers a mismatch by describing the problem and solution at different levels of generality. If the social problem is defined broadly, then the search for regulatory antecedents must be similarly capacious—including not just gun-specific responses, but other modes of constraining domestic violence. Rahimi’s own reading of the historical record then identifies the necessary analogues, including sureties. But the court dismisses them on the grounds that they do not similarly burden the right to bear arms. This is a distinction without a difference if firearms were not prominent instruments of domestic violence at that time.
As we have shown, either of the two “societal problem” frames supports the constitutionality of 922(g)(8). If we characterize the societal problem to which 922(g)(8) responds as domestic violence by gun, the problem to which 922(g)(8) responds has not persisted since the Founding. In a case of this kind, Bruen calls for a “more nuanced approach” to analogical reasoning where gun regulation responds to “unprecedented societal concerns or dramatic technological changes.” Rahimi involves both forms of change Bruen mentions. The nation employed different types of law to regulate domestic violence as it responded to technological change affecting the instruments of domestic violence and as it responded to an evolving understanding of women’s roles.
If, in the alternative, we start where Rahimi does and find that domestic violence is a persistent societal problem that the Founding generation faced, we should define as historical analogues all legal responses to domestic violence that the common law afforded to deter and remedy the problem.
From this vantage point, we can see that Rahimi manipulates levels of generality to create a one-way ratchet for gun rights that is not mandated by Bruen. The opinion shows how deciding cases on the basis of obscure historical sources does not constrain judicial discretion, as many originalists claim, but instead can conceal expression of a judge’s personal preferences. (Judge Cory Wilson, author of the Rahimi opinion, made clear in an NRA questionnaire—filed as part of a run for office in Mississippi—that he opposes most gun regulation, including universal background checks.)
What the Supreme Court in Rahimi must rule out is this mix-and-match approach by which judges describe societal problems broadly so that they seem continuous with modern life, but then restrict the search for regulatory antecedents narrowly, recognizing as antecedents only laws that closely resemble modern regulations. On this selective appeal to the past, the Second Amendment protects the right of a person subject to a domestic violence restraining order to his AR-15, while at the same time prohibiting government efforts to disarm that person unless the intervention resembles common law interventions at a time when domestic violence by gun was not a leading cause of women’s death.
Our caution that asymmetric updating and manipulation of levels of generality enables judges to enforce—and mask—their values in deciding Second Amendment cases has added force in challenges to the domestic violence prohibitor. If gun-libertarians prevail in Rahimi, they will perpetuate traditions of exclusion and inequality in new form. Rahimi and especially its precursor United States v. Perez-Gallan exemplify preservation through transformation. Judges invoke feminist accounts of laws’ discriminatory under-protection of women in intimate relations as reason to strike down a law protecting women from violence in intimate relations. The old is all dressed up as new. These decisions illustrate exactly why observers object that the Court’s turn to history and tradition provides cover for entrenching inequality.
Reasoning from history, as Bruen requires, does not mean repeating it. Recognizing traditions that deserve perpetuation unavoidably demands normative judgment. Indeed, much of what judges, lawyers, and citizens do in arguing from history is to draw cautionary lessons—that is what the Court itself does in Heller and Bruen as it expands the right to keep and bear arms in part as a response to historical disarmament of disfavored groups. But concern about perpetuating inequality must evenhandedly apply to the regulation side of the inquiry as well, or else, once again, it will be the interpreters’ own values—their interest in expanding gun rights, and not concerns about history, equality, or fidelity to the Court’s cases—that is driving the outcome.