Editor's note: Dr. Jennifer Tucker is a professor of history at Wesleyan University and founding director of Wesleyan's Center for Gun and Society Research. She is a member of the Council of Constitutional Historians at the Brennan Center for Justice at New York University School of Law. The opinions expressed in this op-ed are her own. Find more opinion on CNN.
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The Supreme Court's stance in favor of banning domestic abusers from possessing firearms could save hundreds, if not thousands, of lives. On Friday, in its long-awaited decision in United States v. Rahimi, the Supreme Court rejected a challenge to the constitutionality of a federal law banning people subject to domestic violence restraining orders from possessing firearms.
In a majority opinion written by Chief Justice John Roberts, eight of the nine justices rejected a challenge to Section 922(g)(8) of the Violence Against Women Act, which was enacted in 1994 in response to a spate of domestic violence and sexual assaults against women. Justice Clarence Thomas, in his lone dissent, argued that justification for the ruling must be found in the law that existed at the time the Second Amendment was ratified.
Olivia Drake
Jennifer Tucker
Friday's opinion suggests that the justices are still grappling with the definition of fundamentalism, its constitutional meaning and the role of history in Second Amendment cases, but Friday's ruling should provide some needed guidance.
Chief Justice Roberts explained, “Since the nation's founding, our firearms laws have contained provisions prohibiting the misuse of firearms by individuals who pose a threat of physical harm to others. As applied to the facts of this case, Section 922(g)(8) fits neatly into this tradition.” The Court held that when an individual is determined by a court to be a credible threat to the physical safety of others, that individual may be temporarily disarmed, consistent with the Second Amendment.
“Some Courts have misunderstood the approach of recent Second Amendment cases. These cases do not suggest that the law is trapped in amber,” Roberts wrote. Otherwise, he explained, the Second Amendment would only protect “muskets and sabers.”
This decision is consistent with previous cases in which the Supreme Court has acknowledged the danger of armed abusers. For example, in US v Castleman (2014),[d]Domestic violence often intensifies over time, and the presence of a firearm increases the likelihood of it escalating to murder.” In Voisine v US (2016), “[F]Armament and internal conflict are a potentially deadly combination.”
In the 2022 case New York State Rifle and Pistol Association v. Bruen, the Supreme Court struck down a century-old New York gun control law that restricted the carrying of concealed handguns outside the home, marking the biggest expansion of gun rights in the past decade.
Before Bruen, lower courts had evaluated gun control laws using a combination of historical research and evidence about how they served important state interests, such as public safety.
The impact of the Brune case in New York and across the country was immense. The case sparked hundreds of challenges to gun laws in lower courts across the country, on issues ranging from gun possession to high-capacity magazines. The case has put a wide range of federal and state gun laws at risk, with judges ruling against bans on AR-15 rifles, laws preventing adults under the age of 21 from purchasing or possessing handguns in public, and other gun control measures that were deemed to lack “historical tradition.”
Two years after the Supreme Court overturned the way Second Amendment cases are decided, justices across the country are at odds over history.
At oral argument last November, US Attorney General Elizabeth Preloger did not attack fundamentalist doctrine or the Supreme Court's new “history and tradition” standard set out in Brune. Instead, she argued that history “before, during, and after the Founding” has allowed the government to disarm dangerous people.
Backing up her argument are reports by public health researchers, domestic violence experts, lawyers, doctors and law enforcement officials documenting the need to restrict domestic abusers' access to guns while protective orders are in place.
In contrast, opponents of gun control have cited Bruen in amicus briefs arguing that for modern gun laws to be consistent with the Second Amendment's right to bear arms, essentially identical laws must have existed at the time of the nation's founding. That argument was made in a supporting brief by Rahimi, whose groups included the NRA, Phyllis Schlafly Eagles and Eagle Forum, Gun Owners of America and others.
What does history say?
As historians have noted, in the Rahimi case, there is no widespread support for the possession of weapons by abusers, even in retrospect. Moreover, in Bruen, the Court acknowledged that many technological and social changes since the country's founding could be taken into account in firearms cases.
At the time of the nation's founding, guns were rarely used to kill intimate partners. Few people owned pistols, and flintlock muskets were cumbersome to use indoors. According to Randolph Ross, author of American Murder, “marital murderers seldom used anything but their fists or feet; they might pick up a stick, a stone, or a tool, or whatever was at hand.” Modern pistols are significantly easier to use and far more lethal than 18th-century flintlock weapons.
Since the founding of the country, the prevalence of handguns in American homes has increased roughly tenfold, and their use in homicides has increased nearly fivefold.
Drawing an immutable line from the flintlock to the AR-15—that is, comparing all products as if they were the same—is a myth that historian Brian DeLay describes as promoting a “myth of continuity.” Pepperdine University legal scholar Jacob Charles calls this dilemma binding us to “the dead hand of the silent past.”
The importance of the Rahimi decision
According to law enforcement data, 76% of female homicide victims are killed by someone they know, and more than a third are killed by an intimate partner. Another study found that abused women are five times more likely to be killed by their male partners if there are firearms in the home. The National Coalition to Prevent Domestic Violence reports that having a firearm in the home increases the risk of homicide by 1,000%.
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Domestic violence has also been linked to mass shootings. Recent studies have found that about 60% of mass shootings between 2014 and 2019 were related to domestic violence, and in about 70% of mass shootings, the perpetrator either killed at least one partner or family member or had a history of intimate partner violence.
Responding to domestic violence incidents is also one of the most dangerous jobs for police.
Finally, evidence shows that restricting domestic violence perpetrators’ possession of firearms is often an effective preventative measure: states with stricter firearm restrictions in domestic violence cases have homicide rates for women up to 25% lower than more permissive states.
While the Supreme Court took a step in the right direction, there remains significant uncertainty about how lower courts will apply Brune’s “history and tradition” test to other firearms control cases. That uncertainty has emboldened gun rights advocates and led to the loosening of gun laws across the country over the past two years.
Amidst the conflicting views on firearms rights and the fight over “history and tradition,” in a country plagued by gun violence, it’s important to remember that the Declaration of Independence gave Americans the right to “life, liberty, and happiness.” One could say that people also have the “right not to be shot.”
