In response to a growing narrative.
In recent weeks, I’ve noticed a false narrative taking hold in the wake of the Fifth Circuit’s decision in the case of U.S. v. Rahimi, a post-Bruen Second Amendment ruling that came down earlier this month. That narrative — at least as I’ve encountered it — is that the originalist approach that the Supreme Court has taken in some of its recent cases is irrationally gluing American law to a profoundly unlovely past. In the case of Rahimi, this isn’t true — and it matters that it isn’t true. That being so, I thought I’d do my best to correct the record.
In Rahimi, a three-judge panel of the Fifth Circuit ruled that § 922(g)(8) — a federal law that renders it illegal for an otherwise-eligible person to possess or bear arms before they have been convicted of a crime, but while they are subject to a civil protective order — is unconstitutional under the Supreme Court’s recent decision in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen. Specifically, the Fifth Circuit ruled that § 922(g)(8) is not “consistent with the Nation’s historical tradition of firearm regulation,” as Bruen demands that all gun-control measures must be. Concluding its opinion, the Fifth Circuit wrote that:
The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id. As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.
In response to this decision, a number of outlets have made it seem as if § 922(g)(8) was deemed unconstitutional because, at the time of the Founding, domestic violence was not a crime. See, for example, this write-up by Vox‘s Ian Millhiser, which, among other things, complains that:
If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld. The early American republic was a far more sexist place than America in 2023, and it had far fewer laws protecting people from intimate partner violence.
Indeed, until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other,” it was legal in every state for married partners to beat their spouses.
Or this, from Mark Joseph Stern, over at Slate:
There is also a reason why the government did not disarm domestic abusers in the past: Domestic violence was not deemed a criminal offense for most of American history. When women were denied equal citizenship, the men who wrote and enforced the laws viewed wife-beating as a mere “familial affair” beyond the province of the courts. Legislators and judges alike saw domestic abuse as a natural part of family life, to be dealt with privately and punished only in the most extreme and murderous situations. It’s no surprise, then, that the historical record shows no history of laws keeping guns out of the hands of abusers. The very notion that men should not be allowed to abuse their wives and girlfriends is a modern belief that only developed in the 20th century.
Yet Bruen handcuffs our laws to a past era, when domestic abuse was tolerated and even smiled upon by the authorities.
The implication here is as follows: (a) that the Supreme Court has ruled that only gun laws that comport with tradition are presumptively constitutional; (b) that domestic violence was not considered a problem in the past; ergo (c) gun laws that relate to domestic violence are unconstitutional.
But this isn’t right. It is true that § 922(g)(8) relates to domestic violence. And it is true that, within the Fifth Circuit at least, this provision has been nixed. But it is not true that the provision was nixed because it related to domestic violence. Instead, the provision was nixed because it seeks to completely disarm otherwise eligible people from exercising their Second Amendment rights before those people have been convicted of anything, and because, under Bruen, this won’t fly.
The Fifth Circuit asked the federal government to present it with any:
“relevantly similar” historical regulations that imposed “a comparable burden on the right of armed self-defense” that were also “comparably justified.”
As you’ll note, the input mechanism was irrelevant. In this case, that input mechanism happened to be domestic violence. But, really, it could have been anything that prompted the federal government to attempt to completely disarm an otherwise eligible person without that person’s first having been convicted of a crime. Nowhere in its decision does the Fifth Circuit examine the domestic-abuse laws of the 18th century (or lack thereof). Rather, it searches for categories of laws that have historically been used to disarm people in America absent a prerequisite conviction, and it finds none.
For those who are interested, those laws were the English Militia Act of 1662, which the court correctly dismissed as an insufficient analog of § 922(g)(8); the “laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans,” which the court dismissed on the grounds that those laws “disarmed people by class or group, not after individualized findings of ‘credible threats'” and that their purpose was “the preservation of political and social order, not the protection of an identified person from the specific threat posed by another”; a couple of proposed amendments to the federal Constitution, which the court dismissed because those amendments weren’t adopted; “the ancient criminal offense of ‘going armed to terrify the King’s subjects,’ which the court dismissed because only three states ever used their statutes to disarm the accused and two of those abolished those statues soon after the passage of the Second Amendment; and, finally, “historical surety laws,” which the court dismissed because, while they come closest in their impetus, “historical surety laws did not prohibit public carry, much less possession of weapons, so long as the offender posted surety,” and, as a result, they cannot be compared to § 922(g)(8), which “works an absolute deprivation of the right, not only publicly to carry, but to possess any firearm, upon entry of a sufficient protective order.”
One can like this decision or one can dislike it. One can agree with the historical analysis or one can disagree with it. One can admire the analogizing or one can despise it. But, however one regards the court’s analysis, it remains the case that the conclusion at which the Fifth Circuit arrived was not that domestic violence used to be okay, so it’s okay now. Rather, it concluded that the United States has no tradition of completely removing the right to keep and bear arms from discrete individuals without a criminal conviction in hand. Ultimately, this was a due process question, and that is not changed by the fact that, in this particular instance, the accusations against the individual at hand are harrowing.
In his piece at Slate, Mark Joseph Stern makes fun of the court’s defense of due process, complaining that it:
speculated about a parade of horribles if the government could remove “irresponsible” or “non-law abiding people” from “the scope of the Second Amendment.”
“Could speeders be stripped of their right to keep and bear arms?” Wilson asked. “Political nonconformists? People who do not recycle or drive an electric vehicle?”
Of course, domestic abusers are categorically different from speeders and dissidents. There is a reason why the government disarms them today: They are at exponentially heightened risk of using their gun to commit murder. As I wrote in November, an abuser’s access to guns makes it five times more likely that a woman will be killed. More than half of intimate partner homicides are committed with guns. An American woman is shot and killed by an intimate partner every 14 hours. Domestic abusers are also disproportionately likely to commit mass shootings: Nearly 60 percent of mass shootings between 2014 and 2019 were related to intimate partner violence, while 68 percent of mass shooters had a history of domestic violence.
These statistics are true, and they’re ugly. But Stern is wrong to suggest that they render accused domestic abusers as “categorically different” from other accused people, because, in the only sense that matters — whether they’ve been convicted of a crime — they are exactly the same. Due process is important. Now, and back then.