Nearly half of all women killed in this country are murdered by a current or former intimate partner, and half of those homicides are committed with the aid of a gun. A woman is five times more likely to be murdered when her abuser has access to a gun than when they don’t. Almost a million women have been “shot or shot at” by an intimate partner, according to the Educational Fund to Stop Gun Violence.
But the US Court of Appeals for the Fifth Circuit does not give a damn about those facts. It doesn’t give a damn about violence against women. It doesn’t give a damn about orders from other courts designed to keep women alive. In a ruling last week in a case called US v. Rahimi, a panel of three Federalist Society–approved judges unanimously repealed a federal law that prevents the possession of firearms while under a domestic violence restraining order. The conservatives ruled that the law violated the Second Amendment of the Constitution.
At issue was a fairly standard application of US federal criminal code. Title 18, Section 922 makes it unlawful for various types of people to possess guns. It’s a list that includes felons, fugitives, and people who are illegally using controlled substances. A subsection of that rule prohibits possession by people under a restraining order for harassing, stalking, or threatening an intimate partner or that person’s children.
Zackery Rahimi was under just such a restraining order after allegedly assaulting his ex-girlfriend. Rahimi was later arrested after being involved in five shootings over the course of a year. He shot at a person’s house; he shot at a person after he got into a car accident, fled, then came back later to shoot again, this time at that driver’s car; he shot at a “constable’s vehicle,” and I don’t even know what that is; and he shot bullets up into the air after his friend’s credit card was declined at a Whataburger. The only way I can explain why he still had a gun at all is that he did all his shooting in Texas.
Rahimi challenged his federal possession indictment under the novel theory that the terms of his restraining order violated his constitutional rights. The Fifth Circuit agreed. The arch conservatives found that restricting gun possession based on a person’s history of domestic violence was inconsistent with “the nation’s historical tradition of firearm regulation.”
To reach this extraordinary conclusion, the court engaged in the worst version of Drunk History. It went all the way back to the English Militia Act of 1662 (not a typo) and treated us to a recitation of the king’s prerogatives, James II, and Oliver Cromwell, to conclude that the law’s restriction on “dangerous” individuals was not in line with the thinking of the authors of the US Constitution. I wish I were making this up, but what passes as conservative judicial thought these days is this intellectually masturbatory debate about whether white men who died literally hundreds of years ago would have handed a Glock 43 to the Whataburger shooter.
For what it’s worth, the conservative conclusion that the founders would have had no problem with Rahimi’s keeping his weapons is probably the correct read on the early-modern cavemen who are responsible for scrawling out the Constitution with their knuckles hardened from dragging along the ground. The problem here is not guessing at how people living in the 1600s or 1700s might have thought; the problem is thinking that our modern laws and lives must be hobbled by the moral and intellectual limitations of the 17th or 18th century. White men hundreds of years ago didn’t really believe things like “domestic violence” were crimes; there wasn’t a law against a husband beating his wife until 1850. I don’t need to brush up on my Canterbury Tales to know that people who didn’t think violence against wyfes was illegal also didn’t think that the men accused of such violence should lose their guns.
None of that should matter. Restricting weapons access to domestic abusers subject to a restraining order is well in concert with the government’s other powers to prohibit dangerous individuals from owning firearms. It’s not even a politically controversial point, and it wasn’t a legally controversial point until the most recent Supreme Court case on guns, New York State Rifle & Pistol Association v. Bruen. (In that case, the conservatives on the Supreme Court invalidated a New York gun permit law because, according to them, the law was not the kind of gun regulations that the constitutional authors would have liked.) Indeed, the most frustrating part of the Fifth Circuit’s decision is that Judge Cory Wilson, a Trump appointee, spent a lot of time disingenuously claiming that his pro–domestic violence ruling was being forced on him by the Supreme Court’s decision in Bruen. He writes:
Doubtless, [the gun restriction] embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of [the law] outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right.
This is a common conservative trick: They admit that a law they are in the process of eviscerating is probably good but claim that they are being forced by the Constitution to overturn it. In reality, they are being forced only by their ideological extremism to interpret the Constitution in a way that ossifies all laws from a time when only white men could write and benefit from those laws.
The worst exemplar of this conservative brain rot is Judge James Ho. He’s famous for refusing to hire Yale Law students who don’t want to work for him anyway. That tracks because Ho is part of that particular brand of conservative who always looks to score culture-war points while also reimagining the law as a MAGA enforcement mechanism. In this case, Ho wrote a mewling two-page concurrence. The main goal appeared to be to slam bail-reform initiatives and pretrial-release programs, which, per his recounting, are the real reason abusers are running around packing heat: “Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms.”
Of course, Ho well knows that most people accused of domestic violence will not see the inside of a jail cell until it is too late—though not because of bail reform or pretrial release. The true judicial failure that animates the court’s decision in Rahimi is that Fifth Circuit conservatives are unwilling to treat domestic violence as a real crime. At core, they won’t grant the same legal weight to a restraining order issued before a person murders his partner as they will to a legal conviction for murder after the fact. We can infer that’s what the Fifth Circuit is thinking, because Bruen, which is the case they claim they’re following, gives them a way to uphold exactly the kind of gun restriction at issue in this case. As Mark Joseph Stern writes in Slate, alleged attempted rapist Brett Kavanaugh wrote a concurrence in Bruen (that was signed on to by Chief Justice John Roberts) suggesting that disarming suspected abusers, and others thought to be dangerous, is squarely constitutional.
Frankly, the only benefit of the conservative reliance on armchair history and seances with the founding fathers is that they can make those sources say whatever they want. If the Fifth Circuit actually thought accused domestic abusers were dangerous, it would have upheld the laws taking away guns from “dangerous” people. If five justices on the Supreme Court think those abusers are dangerous, they will restore the laws taking away their guns.
There’s no grounding here. There’s no objective legal analysis here. We live in a world where the issue of whether domestic abusers have access to weapons to menace or harm their intimate partners comes down to the petty ideological grievances of the panel of conservative judges who happen to hear their case.
Victims of domestic abuse deserve better. But there is one thing that was true in 1662 and is still true today: The laws regarding violence against women are made subject to the approval of men.