The nation’s Founders did not consider women their political or legal equals. The laws they passed reflected that worldview. Unsurprisingly, those men did not craft protections for women who were threatened or abused by intimate partners. Nor did they take guns away from the men who committed violence against their wives.
In a ruling earlier this month, a federal appeals court in Texas said essentially that today’s legislators can’t either. It concluded that the lack of historical laws like those disarming domestic abusers means the Second Amendment forbids disarming most abusers today. As one of the first appeals court cases on guns since last summer, the case highlights problems with the Supreme Court’s blockbuster Second Amendment decision from June, New York State Rifle & Pistol Association v. Bruen.
In Bruen, the Supreme Court announced a new test for reviewing Second Amendment claims. The court made history alone decisive to a law’s validity. It discarded a prior test in place that had focused on conventional legal questions about the government’s interest in regulating weapons. Now, the central inquiry is whether a modern “regulation is consistent with this Nation’s historical tradition of firearm regulation.”
This kind of history-only test is not used for nearly any other constitutional right. And it makes historical silence fatal to modern gun laws. Only if the Founders regulated in a similar way can contemporary regulations stand. The federal appeals court applied that test all too faithfully in United States v. Rahimi.
The law at issue in the case was the federal bar on firearm possession for any person “subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner” that meets other criteria, such as a court finding that the person “represents a credible threat” to the other. The law temporarily separates a person subject to such a restraining order from his guns.
Research amply testifies to the deadly combination posed by firearms and domestic violence. Nearly 1 million women report being shot or shot at by an intimate partner, and guns are the weapon of choice for abusers. An abuser’s access to firearms increases a woman’s risk of being murdered fivefold.
But the Supreme Court’s test renders these statistics irrelevant. All that matters is whether the government can find a historical precedent to justify disarming abusers today.
The appeals court found no relevant history. It dismissed historical laws that disarmed individuals the Founders considered dangerous because those laws “disarmed people by class or group, not after individualized findings of ‘credible threat’ to identified potential victims.” Thus, old laws could not support the challenged federal law because they were much broader. That’s a strange way to draw analogies. The court also found sundry other reasons to reject the relevance of historical regulations the government offered. Seeing nothing similar in the distant past, the court declared the federal law invalid. The decision is problematic not so much for how it applies Bruen’s test, but for what it exposes about that test.
Bruen requires an analogous law grounded in the founding era to support any gun legislation today. But the Supreme Court failed to justify why the scope of contemporary lawmaking authority should be set by the standard of statutes enacted in the past. What laws the Founders did pass cannot be understood as the only laws they thought they could pass. An absence of past regulations might simply reflect the fact that prior generations saw no need to legislate on a given subject or that relevant constituencies did not desire regulatory intervention for a specific matter. The lack of past laws can also give rise to less benign explanations.
One reason our ancestors may have failed to legislate is that they did not consider the relevant interests worthy of protection. This fact best explains the absence of similar analogues for the federal law protecting survivors of domestic violence at issue in Rahimi.
Given the reality of women’s limited rights, husbands’ wife-beating prerogatives and the general dominant worldview of the governing elite when the Second Amendment was ratified, of course the nation’s leaders would have balked at a law disarming men who hit their wives or girlfriends. A man’s exercise of his well-established “legal prerogative to inflict marital chastisement” surely could not be the basis for taking his guns away.
As the federal appeals court said, the domestic-violence related “ban on possession of firearms is an outlier that our ancestors would never have accepted.” Exactly. And that’s the precise problem.
Bruen blinds itself to these reasons for past inaction. If there’s no historical law, that’s the end of the inquiry. Many other modern gun laws are vulnerable under this test. With no good explanation, the Supreme Court set the boundaries around today’s lawmaking power at the edge of yesterday’s laws. And if silence in the historical record makes contemporary legislation impossible, then it is not just the Founders’ laws that bind us. It’s their values too.
Jacob D. Charles is an associate professor of Law at Pepperdine University Caruso School of Law and an affiliated scholar with the Duke University Center for Firearms Law. He writes and teaches on the Second Amendment and firearms law and is a co-author of a forthcoming law school textbook on the Second Amendment. Twitter: @JacobDCharles