On November 7, 2023, the United States Supreme Court heard oral arguments for United States v. Rahimi. In this case, the Court will ultimately decide whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment.
Mr. Rahimi violently assaulted his domestic partner in a parking lot and shot a gun when he noticed that others witnessed his abuse. Afterward, he was convicted of possessing a gun while subject to a domestic violence protective order. Mr. Rahimi challenged the law as a violation of his Second Amendment right to bear arms.
The U.S. Court of Appeals for the Fifth Circuit invalidated
the law in March of 2023, ruling in favor of Mr. Rahimi and holding that individuals subject to domestic violence protective orders still retain the constitutional right to possess firearms. The Fifth Circuit Court followed the strain of legal precedent set in New York State Rifle & Pistol Association, Inc. v. Bruen. Since domestic violence protections are largely a product of the past century, there are no historically-rooted laws that protect citizens against domestic violence. In other words, 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, is not deeply rooted in “history and tradition” and therefore fails the originalist test set forth by Bruen. The Fifth Circuit wrote that the federal ban, proven to protect women against abuse, was an “outlier that our ancestors would never have accepted.”
The Fifth Circuit Court did not find that historical laws that prevented arms from being obtained by individuals who posed a danger to others were sufficient to allow the federal ban to remain. Their rationale prevents the government from prohibiting gun possession for persons subject to restraining orders. According to the Fifth Circuit, a historical twin law is necessary to uphold a law today.
United States v. Rahimi has gained attention because of the real possibility that the safety of domestic violence survivors, a group comprised mainly of women, will be decided based on an originalist approach to constitutional interpretation. Originalism interprets a legal text as it was understood at the time of its adoption, meaning that the case will likely be decided on legal thought written exclusively by white, wealthy, male landowners from the 18th century.
Judges may turn to originalism because it offers a constrained approach to constitutional interpretation that limits the ability of the judiciary to insert personal opinions and political beliefs into judicial decisions. Yet, changing societal values and modern understandings make originalism a flawed and weak method of legal interpretation.
Namely, the approach of the Fifth Circuit undermines the government’s interest in protecting people from newly recognized threats. Their jurisprudence restrains the government’s authority to regulate gun possession to periods where the government disregarded, or even sanctioned, forms of violence directed against women, Black people, Indigenous people, and other protected classes.
When the Second Amendment and Reconstructionist Amendments were drafted, women were second-class citizens, unable to vote. At that time, physical violence against women was sanctioned in the home. In using originalism, the Court chooses historical law over modern problems. Women are eleven times more likely to be killed with a firearm in the United States than in other developed countries. The presence of a gun increases the risk of homicide for women in domestic violence situations by 500%. ¼ of women in the United States have been victims of severe domestic violence. ⅓ of women have experienced rape, stalking, or domestic violence. The connection between domestic violence and mass shootings in the United States is alarming; 50% of mass shooters first shoot their intimate partner or family member. Many mass shooters, as seen in Sandy Hook and Uvalde, have a history of domestic violence.
For an originalist court, these data points are invisible and of no interest. While history and tradition can be guiding principles, originalism should not provide the ultimate test on modern issues. Relying on the original views of the founding fathers—who could legally beat the women in their homes and own slaves—as a mark for how to proceed in a civilized society is not only poor legal reasoning; it costs millions of American lives.
Maggie McGinnis is from Appleton, Wisconsin, studying Political Science, Cultural Anthropology, and Human Rights.