Opinion: The Highest Court Affirms Our Constitutional Right to Avoid Unlawful Gunfire
In a consensus decision, spearheaded by Chief Justice John Roberts, eight out of nine justices chose to dismiss a dispute related to Section 922(g)(8) of the Violence Against Women Act. This legislation was enacted in 1994 to tackle the high levels of domestic violence and sexual assault against women. Justice Clarence Thomas was the sole protestor, urging for justification of the verdict based on the laws established at the time the Second Amendment was ratified.
The opinions in this week's decision suggest that the justices are still wrestling with the definition of originalism, constitutional interpretation, and the significance of history in Second Amendment court cases. Nonetheless, this decision should offer some clarity.
Chief Justice Roberts stated that "Since the nation's inception, our country's firearm laws have included provisions preventing individuals who make threats of physical harm to others from misusing firearms. In this particular case, Section 922(g)(8) fits smoothly within this tradition." The court confirmed that when an individual has been deemed by a court as a credible threat to another person's physical safety, temporary disarmament is permissible, which aligns with the Second Amendment.
As Roberts put it, "some courts have misconstrued the methodology of our recent Second Amendment cases. These judgments were not intended to suggest a law stuck in time." Otherwise, he reasoned, the Second Amendment would only safeguard antiquated weapons like "muskets and sabers."
This decision concurs with previous cases in which the Supreme Court acknowledged the danger posed by armed abusers. For example, in US v Castleman (2014), they recognized that "domestic violence often intensifies in severity over time, ... and the presence of a firearm increases the likelihood that it will escalate to homicide." In Voisine v US (2016), they stated that "firearms and domestic strife are a potentially lethal combination."
In the 2022 case of New York State Rifle & Pistol Association v Bruen, the Supreme Court ruled in favor of repealing a century-old New York gun law that imposed restrictions on carrying a concealed handgun outside the home — a decision that marked the most extensive expansion of gun rights in a decade.
Prior to the Bruen decision, lower courts evaluated gun laws through a blend of historical research and evidence demonstrating the laws' significance for national interests, such as public safety.
The impact of Bruen on New York and the country as a whole cannot be undervalued. It led to numerous challenges to gun laws in courts across the nation, questioning issues ranging from allowed carrying locations to large-capacity magazines. It threatened a wide spectrum of federal and state gun regulations, with judges striking down bans on AR-15 rifles, restrictions on adults under 21 from purchasing or carrying handguns in public, and other gun-control measures deemed deficient in "historical tradition."
Judges across the country are at odds over history two years following the Supreme Court's upheaval of how courts decide Second Amendment cases.
In oral arguments last November, US Solicitor General Elizabeth Prelogar did not cast doubts on the doctrine of originalism or the court's new "history and tradition" test outlined in Bruen. Instead, she argued that the government hadhistorical ground to disarm dangerous individuals.
In support of her argument, briefs were provided by public health researchers, domestic violence experts, attorneys, doctors, and law enforcement officials, who documented the necessity of restricting domestic abusers' access to firearms while under a protective order.
On the flip side, opponents of gun regulation, relying on the Bruen decision, submitted amicus briefs arguing that it requires the modern gun laws to have closely resembled laws existing at the time of the Founding for a contemporary gun law to be in keeping with the Second Amendment's right to bear arms. This stance was supported in briefs for Rahimi, which included, among others, the NRA, Phyllis Schlafly Eagles and Eagle Forum, and the Gun Owners of America.
What does history tell us?
As historians have pointed out, in relation to the Rahimi case, looking to the past will not uncover broad support for arming abusers. Furthermore, in Bruen, the court accepted that the numerous technological and social changes that have taken place since the Founding Era could be taken into account in gun cases.
During the Founding Era, handguns were seldom used to kill intimate partners. Few people possessed pistols, and flintlock muskets were unwieldy for indoor use. As reported by Randolph Roth, author of the book "American Homicide," "Marital murderers seldom used more than their fists or feet. Sometimes they picked up whatever was at hand—a stick, a stone, a tool." Contemporary pistols are significantly simpler to use and much deadlier than the flintlock weapons of the 18th century.
Since the Founding Era, the prevalence of handguns in American households has grown by a factor of ten, and their use in homicides has increased nearly fivefold.
Drawing a steadfast line from flintlock to AR-15 — treating them as if they are equivalent — is a myth described by historian Brian DeLay as pushing a "myth of continuity."Pepperdine University legal scholar Jacob Charles has referred to this dilemma as being chained to "the dead hand of a silent past."
According to police data, a staggering 76% of female murder victims are slain by individuals they are acquainted with, with over one-third being killed by their intimate partners. A different study reveals that a lady in an abusive relationship is five times more likely to be murdered by her male partner if a firearm is present in the home. The National Coalition Against Domestic Violence reports that the presence of a firearm in the home can boost the risk of homicide by an alarming 1,000%.
Domestic violence is not only linked to mass shootings; a recent study found that nearly 60% of mass shootings between 2014 and 2019 were domestic violence-related, and in almost 70% of such incidents, the perpetrator either killed a partner or family member or had a history of intimate partner violence.
Dealing with a domestic violence situation is one of the most hazardous tasks for law enforcement officers.
Lastly, evidence shows that limiting firearm ownership by abusers can be an effective preventative measure. States with stricter firearm regulations in domestic abuse cases have a female homicide rate that is up to 25% lower compared to more lenient states.
The Supreme Court has made a positive step. There remains uncertainty about how lower courts will apply the "history and tradition" test in other firearms regulation cases. This uncertainty has given power to gun rights advocates and resulted in a loosening of gun laws across the nation in the past two years.
In the face of contrasting views on firearms rights and the debate over "history and tradition," in a nation grappling with gun violence, it's essential to remember that the Declaration of Independence granted Americans the right to "life, liberty, and happiness." Americans might also have a "right to not be shot."
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This week's court decision underscores the complexity of balancing constitutional rights and public safety, as justices grapple with the definition of originalism in Second Amendment cases. While Chief Justice Roberts emphasized the historical precedent for disarming threats to physical safety, alternative opinions argue for a more nuanced approach to gun regulation based on modern contexts.
Diverse perspectives on gun control policies have also emerged in debates over the Second Amendment and its historical applications, with some advocating for a steadfast interpretation of originalism while others emphasize the need to consider advances in technology and societal changes.
