Supreme Court Justice Clarence Thomas set a new standard for gun laws with 2022’s New York State Rifle & Pistol Association Inc. v. Bruen: If a gun restriction didn’t exist when the United States was a new nation and the Constitution was being written, it can’t exist now. Thomas’ new standard was that a law is only allowable if it is “consistent with the Nation’s historical tradition of firearm regulation.” Now, the Supreme Court will decide whether to take the next logical step and strike down laws prohibiting people who have domestic violence restraining orders against them from having guns. That’s been a federal law for decades, but by the Thomas standard, it’s not “consistent with the Nation’s historical tradition of firearm regulation.”
After all, wife-beating was fully legal at the time the Constitution was written, so no one would have considered taking guns away from a man who acted within his legal rights by beating his wife up.
This is now the legal standard in the states where the Fifth Circuit sets precedent. Following Bruen, the Fifth Circuit heard the case of 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 another 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 according to the Fifth Circuit, he couldn’t legally be banned from owning the gun to begin with, because of “the Nation’s historical tradition.”
While the ban on people like Rahimi having guns represents “salutary policy goals meant to protect vulnerable people in our society,” the Fifth Circuit decided, Bruen “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.”
Our ancestors never would have accepted it because they believed that wives were the property of their husbands. Our views on that may have changed, but according to the current Supreme Court precedent, that is secondary to our gun laws, which cannot change. In the Rahimi case, the government even identified several laws dating back to colonial times that stripped some groups of people of the right to have guns, but those didn’t count, according to the Fifth Circuit.
The Supreme Court will now decide whether the Thomas standard of acceptable gun restrictions holds in this type of case. Bruen was decided 6-3 along entirely predictable lines. Will the specific question of people subject to domestic violence restraining orders change two votes? Thomas has made himself clear. Justice Samuel Alito is fully entrenched in the politics of grievance. What about Chief Justice John Roberts, who allegedly cares about protecting the court’s reputation? What about Justice Amy Coney Barrett, who has directly benefited from the changed legal status of women? Will Justices Brett Kavanaugh or Neil Gorsuch take this chance to look like they’re not purely partisan operators?
It is ridiculous to even have to wonder if this case could be decided in favor of allowing abusers to arm themselves. As Madison Pauly notes at Mother Jones:
Women whose abusers have access to guns are 5 times more likely to be killed than those whose partners don’t have guns available. About a third of female murder victims are killed by an intimate partner, most of whom use firearms to carry out the violence.
This prohibition, in place in federal law for nearly 30 years, saves lives. It should be an absolute no-brainer. But with this court, it’s not. And this case is just one of the horrors to come from them over the next year. Say this, though: If two right-wing justices do change their votes, it’ll be interesting to see how they contort themselves to pretend there’s any consistency in their opinions.
