Editor’s note: Dr. Jennifer Tucker is Professor of History at Wesleyan University and founding director of Wesleyan University’s Center for Gun and Society Research. She is a member of the Council of Constitutional Historians at the Brennan Center for Justice at the New York University School of Law. The opinions expressed in this commentary are her own. Further comments On CNN.
CNN
—
The Supreme Court’s stance in favor of banning domestic abusers from possessing firearms could save hundreds, if not thousands, of lives. In a long-awaited decision from the U.S. Supreme Court on Friday, the court rejected a challenge to the constitutionality of a federal law that bans people subject to domestic violence restraining orders from possessing firearms. America vs. Rahimi case.
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 that 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 Supreme Court decisions that have recognized the danger of armed abusers. For example, United States v. Castleman (2014) states,[d]Domestic violence often escalates over time, and the presence of a firearm increases the likelihood that it will escalate into murder.” Voisine v. United States (2016) states,[F]Armament and internal conflict are a potentially deadly combination.”
In the case of 2022 New York State Rifle & Pistol Association v. BruenThe Supreme Court struck down a century-old New York gun law that restricted the carrying of concealed handguns outside the home, marking the biggest expansion of gun rights in a decade.
prior to Blue EnLower courts have evaluated gun control laws using a combination of historical research and evidence about how they serve 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, those opposed to gun control Citing Blue En The judges argued in an amicus brief that for modern gun laws to be compatible with the Second Amendment’s right to bear arms, essentially identical laws must have existed at 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, the Rahimi case does not show any widespread support for arming abusers in the past. Blue EnThe Court acknowledged that many technological and social changes that have occurred since the nation’s founding may 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 too cumbersome to use indoors. According to Randolph Ross, author of American Murder, “marital killers seldom used anything other than their fists or feet; sometimes they picked up a stick, a stone, a tool, or whatever was at hand.” Modern pistols are far easier to use and far more lethal than the flintlock weapons of the 18th century.Number century.
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%.
Subscribe to our free weekly newsletter
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.
The Supreme Court took a step in the right direction. There remains great uncertainty about how lower courts will apply the Supreme Court’s decisions. Blue En The “history and tradition” test in other firearms control cases. This uncertainty has emboldened gun rights advocates and led to the loosening of gun laws across the country in 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.”
