Is domestic abuse really protected by the Second Amendment?

Enormous attention is focused on the case of U.S. v. Rahimi, which the Supreme Court has agreed to take up next term. It involves Zackey Rahimi, a Texas drug dealer with a long and sordid history of armed violence, who was ordered to disarm in 2019 for assaulting and terrorizing his female partner under a federal law that allows for those under a domestic violence restraining order to be disarmed. 

Instead of complying, Rahimi threatened another woman and discharged guns in public on five occasions. Rahimi pled guilty, but then appealed after the Supreme Court handed down its Second Amendment decision last year in NYSRPA v. Bruen. In that freighted decision, the court expanded Second Amendment rights to public places for the first time in history. Beyond that, however, it recast the basis for determining the constitutionality of current gun laws by asking whether they are “consistent with this Nation’s historical tradition of firearm regulation.” Old gun laws need not be “dead ringers” for current laws, but they should be similar or “analogous,” wrote Justice Clarence Thomas in his majority opinion.

Based on that standard, a three-judge panel of the Fifth Circuit in Texas unanimously overturned Rahimi’s conviction, declaring the federal law unconstitutional under Bruen. The three conservative Republican appointees concluded that there was a “lack of a distinctly similar historical regulation” parallel to the federal domestic violence law, even though the government presented several types of examples. This conclusion points up one of the manifold problems with the Bruen standard: in the search for similar historical gun laws, it allows judges to define “similar” as “identical to.”

My decade-long study of old gun laws suggests that this subject is far more complex than the circuit court might admit. After all, up until the latter half of the 19th century, domestic violence was not considered a crime, and men exercised complete control over their families. Under American law, acts of violence committed by husbands against wives or children were “implicitly accepted or ignored.” The first modern law to criminalize wife-beating was passed in Tennessee in 1850, a standard that didn’t become universal until the early 1900s.

But what about the similar old gun laws offered by defenders of the law? The court rejected, for example, comparisons to old laws that disarmed or kept guns from categories of persons, including Indigenous people, enslaved persons and those who refused to take an oath of allegiance to the government.

Such comparisons, the court said, didn’t apply because they involved categories of people who were not treated on a case-by-case basis. Because the modern law under challenge takes firearms from individuals under restraining orders, the court insisted that similar old laws must have gun confiscation as their penalty for the comparison to be valid. The few other instances offered by the law’s defenders were dismissed as anomalous “outliers.”

But other old gun laws with gun-confiscation penalties escaped court scrutiny. For example, from the 18th to the start of the 20th centuries, at least six states (Delaware, Maryland, New Hampshire, New Jersey, North Carolina and Virginia) enacted hunting laws where the penalty for violation — including such offenses as hunting on private or restricted lands, or at restricted times, or hunting certain types of protected game — was forfeiture of the person’s gun. 

Which offense is more serious: violating hunting laws or inflicting physical and emotional injury on another person? If guns were taken from those hunting deer on private land in the 1700s, why not apply the same penalty for actual injury to a human being now?

Or what about these old laws? In the “Old West,” Texas (in 1879) and Arizona (in 1889) passed laws that said anyone who violated laws against carrying weapons had their guns confiscated. In Pennsylvania in 1810, those who violated that state’s anti-dueling law were “deprived of all rights of citizenship” (including, one assumes, the right to have a gun) for seven years.

As noted, the appellate court rejected comparisons to old gun laws that did not specifically disarm those found guilty of various offenses. But those who committed various violations of old gun laws were typically subject to jail time. Since the incarcerated could not bring guns with them, any more than they can today, doesn’t such a penalty amount to deprivation of gun rights for the duration of incarceration? Why should those historical gun laws not provide precedent? 

Further, the fact that relatively few old gun laws did not include gun confiscation as a penalty is at least partly explainable by two facts that the court did not consider. First, as criminological historian Randall Roth has found, murder rates in the Colonial and early Federal Era were low, and when they occurred, firearms were rarely used. Second, militia-eligible men were expected to own and maintain military-grade firearms during this same period in case they were called up for duty. This concern for national defense might have discouraged gun confiscation as a penalty.

It is often said that hard cases make bad law, and critics have already suggested that this case may be a “bad vehicle” for fixing Bruen. However, this is a good case for the Supreme Court’s consideration for at least one reason: it reveals the manifold problems with the Bruen standard.

Robert J. Spitzer is Distinguished Service Professor emeritus of political science at SUNY Cortland, and an adjunct professor at the College of William and Mary School of Law. He is the author of six books on gun policy, including “The Gun Dilemma” and the new 9th edition of “The Politics of Gun Control.”