A man beating his wife was legal across the United States until 1871, when Alabama and Massachusetts banned it. That fact has new relevance in today’s gun laws thanks to the Supreme Court.
Following the logic of Justice Clarence Thomas’ 2022 opinion in New York State Rifle and Pistol Association v. Bruen, the Fifth Circuit Court of Appeals struck down a federal law banning the sale of guns to people subject to restraining orders in domestic violence cases. In striking down a New York law requiring proper cause for concealed handgun permits, Thomas explained that the law was illegitimate because it was not “consistent with the Nation’s historical tradition of firearm regulation.” In other words, if there was no such law in 1791, it’s unconstitutional now.
Which brings us back to how a man beating his wife was fully legal back then, so there were no laws saying that men who beat their wives (or kids) couldn’t have guns. And therefore, the Fifth Circuit ruled, following Thomas, there can’t be such laws now.
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The case in question involved Zackey Rahimi, a man who was subject to a February 2020 protective order preventing him from stalking or harassing his ex-girlfriend—who he had assaulted—and their child, and from owning a firearm. In December 2020 and January 2021, Rahimi went on to be involved in five shootings. FIVE. He sold narcotics to someone, then fired into their residence. He got into a car accident, shot at the other driver, fled, returned to the scene, and shot at the other driver’s car. He shot at a constable’s vehicle. He fired into the air after his friend’s credit card was declined at a restaurant.
Rahimi was indicted based on his violation of the protective order’s ban on him owning a firearm. But then Thomas fired up his computer for the Bruen decision, and now Rahimi is off the hook because the courts say that it’s not acceptable to ban men who beat their wives and girlfriends and children from having guns, because that’s not part of the nation’s historical tradition of firearm regulation.
The government, in defending the law in question, did identify several laws dating back to colonial times that stripped some groups of people of the right to have guns, but the conservative Fifth Circuit mysteriously finds that those laws don’t apply here.
The law blocking people like Rahimi from having guns “embodies salutary policy goals meant to protect vulnerable people in our society,” according to the Fifth Circuit, but that’s not allowed under Bruen, which “forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that [the law’s] ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted.”
Because our ancestors believed women were the property of their husbands. That’s it. That’s the logic here, according to one conservative appeals court scrupulously following the logic of the Supreme Court. Justice Stephen Breyer anticipated this moment in his dissent on Bruen, noting that a “study found that a woman is five times more likely to be killed by an abusive partner if that partner has access to a gun.” But Thomas says if the founders couldn’t contemplate it, it can’t be in the law now. At least when it comes to guns. Other things, not so much.
The Justice Department is likely to appeal. Bruen was decided 6 to 3, so the question now, Chris Geidner notes, is whether John Roberts and Brett Kavanaugh, who concurred, will go all the way along for the ride if or when the issue comes back to them.
Drip, drip, drip: The Supreme Court’s legitimacy is eroding by the day