Phony constitutional "originalism" is likely to kill women after Second Amendment decision

A federal court finds that women's lives are less important than a bizarre misreading of the Second Amendment

Published February 7, 2023 9:00AM (EST)

A reproductive rights activist, gagged by a scarf in the colors of the US flag, marches during a protest against a recent Supreme Court ruling on abortion rights, in New York, July 4, 2022.  (ED JONES/AFP via Getty Images)
A reproductive rights activist, gagged by a scarf in the colors of the US flag, marches during a protest against a recent Supreme Court ruling on abortion rights, in New York, July 4, 2022. (ED JONES/AFP via Getty Images)

A federal appeals court put many women's lives in danger last week by declaring unconstitutional a federal law that makes it a crime for those under a restraining order in a domestic violence case to possess a firearm. Three conservative judges, two of whom had been appointed by Donald Trump, did this for the absurd reason that such regulations did not exist in 1791 when the Second Amendment was adopted.

The decision, relying heavily upon the Supreme Court's June 2022 decision in New York State Rifle & Pistol Association v. Bruen, reversed a Texas jury's conviction of Zackey Rahimi, who admitted owning a firearm that police found in a search of his home and also admitted that a local Texas court had issued an order barring him from "harassing, stalking, or threatening" his ex-girlfriend after an alleged assault.

Rahimi is a dangerous individual. In a 13-month period, he was involved in five shootings, including firing at a police vehicle and at the drivers of two cars with whom he'd been involved in an accident before fleeing the scene.

Especially in these circumstances, a court invalidating the explicit congressional protection extended to domestic abuse victims defies common sense. The Educational Fund to Stop Gun Violence reports that a "woman is five times more likely to be murdered when her abuser has access to a gun." Judicial decisions ignoring such realities tell us that some judges care more about ideology than protecting women's lives.

The majority opinion by Justice Clarence Thomas after the 6-3 decision in Bruen is a key source of the blindness here. That opinion involves the most expansive reading of the Second Amendment in American history.

Eighty-five years of precedent had previously established that government can interfere with all fundamental constitutional rights, and can even discriminate based on race, if it can show a compelling interest and demonstrate that there is no other way to achieve its goal. But according to the Supreme Court, it cannot touch the Second Amendment.

Under Bruen, the sole gun safety regulations permitted are those that were allowed in 1791 when the Second Amendment was ratified, or perhaps in 1868 when the 14th Amendment was adopted. "Only if a firearm regulation is consistent with this Nation's historical tradition," Thomas wrote, "may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"

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The Fifth Circuit energetically ran with that baton. Despite the "salutary policy goals" of gun safety laws, the court wrote that Bruen weds courts to the past when it comes to interpreting the Second Amendment. There is, the opinion states, no "historical tradition of firearm regulation" related to domestic abuse or restraining orders.

It is impossible to miss here the gender bias of an "originalism" purely focused on the legal, social and cultural realities of post-colonial America. Women, especially married women, had almost no legal rights at the time. A married woman could not own property or enter into contracts. No protection from domestic violence exist under the law.

The signs of such revanchism abound in Fifth Circuit Judge Cory Wilson's opinion. It deploys naked sophistry to reject the government's historical argument that even in an earlier America, the law denied any right to weaponry by individuals deemed "dangerous" — which at the time mainly meant enslaved people and Native Americans.

That's a completely different matter from people under restraining orders, Judge Wilson proclaims. Restraining orders are aimed at individuals on a case-by-case basis, he writes, while the 19th-century laws were directed at whole classifications of people with the purported goal of preserving "political and social order."

While the earlier laws in question were undoubtedly motivated by racism, this distinction makes no sense. The federal statute at issue in the Rahimi case also regulates a class of people — those under restraining orders in domestic violence cases. As former U.S. Attorney Joyce Vance has noted, in 2021, the last year for which statistics are available, 7,454 offenders were convicted under the statute invalidated by the Fifth Circuit. And the fact that the law applies only to individuals where there is particularized concern for physical danger to others only strengthens its justification.

From 1791 to 2008, not a single gun regulation was struck down by the Supreme Court. Now the court has embraced the radical view that all such regulations are unconstitutional, unless they existed before the Second Amendment.

In other words, the Court of Appeals seems to be saying that enslaved Black people and Native Americans were indeed dangerous to (white) society, and therefore that laws restricting their possession of guns provide no historical basis for removing the sacred right to bear arms from individuals — nearly all of them men — who are adjudged to be abusers of intimate partners.

In this case, it's especially difficult to take seriously the high-minded excuse that judges are not enacting "policy." Three right-wing judges have transparently substituted their pro-gun-rights views for a law that was adopted by Congress and has widespread public support.

From the time the Second Amendment was adopted until 2008, not one federal, state or local gun regulation was struck down by the Supreme Court. In the handful of cases regarding the Second Amendment, the court consistently found that it means what it says: It conveys the right to have guns for militia service. Now the court has moved radically to protect an unrestricted vision of gun rights and to limit firearms regulations to those that existed when the Second Amendment was adopted.

The Fifth Circuit's decision in Rahimi shows the absurdity of that approach. The failure of the framers to recognize the problem of domestic violence or the related danger of allowing abusers access to guns should not be permitted to prevent public protection from gun violence today. Women will needlessly die because of the Fifth Circuit's misguided decision.

By Erwin Chemerinsky

Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.

MORE FROM Erwin Chemerinsky

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

MORE FROM Dennis Aftergut

Related Topics ------------------------------------------

Bruen Decision Clarence Thomas Commentary Constitutional Law Domestic Violence Guns Supreme Court