On November 7, 2023, the U.S. Supreme Court will hear oral arguments for the case United States v. Rahimi. Ultimately, the justices will decide whether 18 U.S.C. 922(g)(8), a federal law that prohibits those who are actively subject to a domestic violence civil restraining order from possessing firearms, is constitutional under the Second Amendment. The case is being closely watched for many reasons, including the real possibility that the safety and security of domestic violence survivors in the 21st century will be decided based on a historical record written exclusively by white, wealthy, male landowners from the 18th century.
No one is spared at the intersection of domestic violence and gun violence
Domestic violence is broadly defined as a pattern of abusive behavior in any relationship that is used by one individual to gain power and control over another. It can encompass physical, sexual, emotional, economic, psychological, or technological actions or threats of actions or other patterns of coercive behavior that influence another person. This includes any behaviors that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure, or wound someone. Domestic violence notably can occur within a range of relationships, including couples who are married, living together, or dating, as well as children, relatives, and any other household members. Although domestic violence can affect anyone regardless of race, gender, and socioeconomic background, it overwhelmingly happens to women.
Moreover, as the data below show, domestic violence in the United States is “pervasive, deadly, and inextricably linked with firearms”:
In 2020, firearms became the leading cause of death for children and teens, and many of these deaths are linked to domestic violence. In fact, nearly one-third of gun homicides involving children under the age of 13 in 2017 were related to intimate-partner or family violence.
Originalism first emerged as an obscure and “controversial theory of the far right” in the 1970s and was largely seen as an extremist conservative response to the expansion of civil rights in America in the preceding decades. Originalists claim that the best way to determine the constitutionality of a current law is to attempt to interpret it as the framers of the Constitution originally intended, touting it as a way to ensure that judicial rulings are “fair and free from favor or prejudice.”
However, in what legal experts have described as a multilayered fallacy, not only is determining what the framers “originally intended” ripe with subjective interpretation, but the outcomes of Supreme Court cases that relied on an originalist framework have also conveniently aligned with conservative and far-right political outcomes. Dean of University of California, Berkeley School of Law Erwin Chemerinsky, a contemporary scholar on the Supreme Court, argues extensively that originalism serves as guise for a desired ideological outcome:
The rhetoric conservative justices use to make it seem that they are not imposing their own values, when they are doing exactly that … [Originalism] is not a theory of judging at all but only a rhetorical ploy to make it appear that decisions are based on something other than political ideology.
Few cases demonstrate the fallacies of originalism, its ability to be manipulated for certain desired outcomes, and its real-life consequences for women quite like United States v. Rahimi.
Tell the Supreme Court To Protect Women, Not Guns
United States v. Rahimi shows how originalism fails survivors of domestic violence
The legal question at the heart of United States v. Rahimi is whether 18 USC 922(g)(8), a 1994 amendment to the Federal Firearms Act prohibiting those who are actively subject to a domestic violence restraining order from possessing firearms, is constitutional under the Second Amendment. These restraining orders are civil orders issued by a court formally requiring an alleged abuser to physically stay away from a survivor and their family, end communications with the survivor in a variety of ways, and not be able to purchase or possess a firearm.
18 U.S.C. 922(g)(8) matters because it is effective for survivors of domestic violence. Notably, states that restrict access to guns by people subject to active domestic violence restraining orders have seen a 13 percent reduction in intimate partner homicides involving firearms. And states that have stretched the language and intent of 18 U.S.C. 922(g)(8) further to include dating partners and temporary restraining orders have seen an even larger 16 percent reduction in intimate partner firearm homicides.
18 U.S.C. 922(g)(8) matters because it is effective for survivors of domestic violence.
However, the relevancy of 18 U.S.C. 922(g)8) in saving lives is completely moot under originalism.
One of the many issues with originalism is that it is bound by the economic, political, and cultural realities of post-Colonial America. Therefore, it continues to uphold the vision of a community whose power was concentrated among wealthy, white, male landowners into the 21st century. It is impossible to overlook that women, Indigenous populations, slaves, and other marginalized groups were systemically and intentionally excluded from the community that drafted and ratified the U.S. Constitution.
For example, in terms of domestic violence, husbands could legally beat their wives for more than a century after the ratification of the Constitution. The very notion that men should not be allowed to abuse women is, in fact, a modern belief that only developed in the 20th century. Evaluating the legitimacy of a law that disproportionately affects women through the prism of a time when women weren’t full citizens, subservient to their husbands and other male relatives, would likely result in absurd and possibly fatal consequences.
Influential 18th-century jurist William Blackstone, whose work is often used as a source in the U.S. Supreme Court, once said that the “very being or legal existence of the woman is suspended during the marriage.” At this time, 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. In fact, it was not until 1920 that “wife beating” was made illegal in all 50 states. Furthermore, the contemporary framework for defining domestic violence in a criminal and civil framework, which goes beyond physical violence or a marital relationship, only became officially formalized in the 1994 Violence Against Women Act.
Evaluating the legitimacy of a law that disproportionately affects women through the prism of a time when women weren’t full citizens would result in absurd and fatal consequences.
Rahimi illustrates the obvious and dangerous limitations of originalism. There were no laws that explicitly protected women and domestic violence survivors at the time the Constitution was ratified. In relying exclusively on the vision of the legal and political community at this specific point in U.S. history, upholding originalism would send us back in time and continue a cycle that would only further marginalizes groups in the 21st century that were initially marginalized in the 18th century.
Justice Alito’s application of originalism in Dobbs: Cherry-picking history to serve a predetermined political outcome
The limitations and personal bias inherent in an originalist framework are exemplified by Justice Samuel Alito’s majority decision in Dobbs v. Jackson Women’s Health Organization, which eradicated the constitutional right to abortion under an originalist framework. In trying to decipher if the “history and tradition” of America included the right to an abortion, Justice Alito presented a slanted and deeply selective version of history that appeared to serve his widely known anti-abortion preferences. He touted anti-abortion laws enacted in the mid-19th century and a 19th century campaign to criminalize abortion as the complete historical context to justify the majority’s decision. However, as noted widely by legal scholars and journalists, Justice Alito completely discounted 18th and 19th century laws that permitted access to abortion as well as the crucial fact—noted by the dissenters in this case—that the men who wrote the laws at the time “did not view women as full and equal citizens.” In doing so, Justice Alito showcased what originalism is in practice: a tool to wield a far-right outcome.
The justices writing in dissent explain the danger of relying on logic such as Alito’s directly:
Of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 [when the Fourteenth Amendment was ratified] and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.”
United States v. Rahimi shows the consequences of the Supreme Court eradicating legal precedent to uphold a new originalist framework
Rahimi underscores that the only reason the constitutionality of a commonsense gun control regulation such as 18 U.S.C. 922(g)(8)—which has been on the books for more than 30 years—is being questioned is because of the current Supreme Court’s persistent upholding of originalism as a valid legal framework and its rapid dissent toward extremism. But for this specific Supreme Court, a gun safety law that effectively protects domestic violence survivors from potential gun violence would not be in question.
Before 2022, gun control regulations such as 18 U.S.C. 922(g)(8) were rarely heard by the Supreme Court. In fact, from the ratification of the Second Amendment in 1791 to 2008, the Supreme Court rejected countless appeals on gun control regulations and did not strike down a single local, state, or federal gun control regulation. This trend quickly changed, however, with the arrival of an extremist conservative supermajority on the Supreme Court via former President Donald Trump’s three appointees. As a result, there is now a firm majority of five justices who identify as strict originalists.
The lives of thousands of women, children, and other potential survivors of domestic violence are at stake in United States v. Rahimi.
In addition to the failings of originalism described above, Rahimi makes clear that such a framework can seemingly often serve as a way for justices to legislate from the bench: Far from simply calling balls and strikes, justices use originalism to cherry-pick an understanding of history and craft new legal theories to uphold policy goals.
In June 2022, the court arbitrarily created a new legal framework guided by originalist principles to decide the constitutionality of gun safety regulations in the case New York State Rifle & Pistol Association Inc. v. Bruen. Casting aside decades of legal precedent, the Supreme Court held that it is no longer necessary to assess whether a gun violence prevention regulation is critical to achieving an important government interest—such as public safety, as is the case in Rahimi—when determining the law’s constitutionality. This prior requirement was a key factor in the Supreme Court upholding almost all firearm regulations in the past.
Instead, post-Bruen, a gun safety law will now be considered constitutional only if there was a law similar to it from roughly 1791—the year the Bill of Rights was enacted—to 1868.
Rahimi underscores the direct and confusing impact of the Supreme Court’s radical Bruen decision
The Rahimi case began in December 2021, almost one year before Bruen was decided. At that time, the Fifth Circuit—which is widely considered the most conservative circuit in the country—stated that 18 U.S.C. 922(g)(8) did not violate the Second Amendment.
However, six months after the Supreme Court decided Bruen, the Fifth Circuit withdrew its initial Rahimi decision and issued a new ruling finding that the law was unconstitutional. This ruling explicitly stated that 18 U.S.C. 922(g)(8) was a “laudable policy goal” and, if not for Bruen, the court would have found it constitutional. However, as required by Bruen, the judges did not believe that a historically analogous law existed from 1791 to 1868, which is debatable, and thus now found the statute unconstitutional.
If not for Bruen and the current Supreme Court’s new originalist framework, the constitutionality of 18 U.S.C. 922(g)(8) would likely never have reached the Supreme Court.
The takeaway from Rahimi is clear: If not for Bruen and the current Supreme Court’s new originalist framework emphasizing subjective history over public safety, the constitutionality of 18 U.S.C. 922(g)(8) would likely never have reached the Supreme Court.
Rahimi underscores the true cost of the Supreme Court eliminating legal precedent in order to further a selective originalist legal framework. This framework, in addition to seemingly injecting outdated and rejected views of women and abuse back into modern legal thought, appears to allow the justices to legislate from the bench on what laws should be constitutional, as they’ve created a system where subjective history—and not the actual impact and goals of a law—can dictate a case’s outcome. Yet the people who will bear the consequences of the court’s decision are not the justices themselves, but rather the survivors of domestic violence and their families.