SCOTUS
Court creates chaos as it rules on domestic violence and the Second Amendment
Justice Jackson calls out the madness
Some people will celebrate Friday’s 8–1 Supreme Court decision upholding a 1993 gun law that regulates access to guns for people under a court order for intimate partner violence. That would be a mistake.
The decision endorses and strengthens an approach to law that undermines the will of the people (as represented in every Congress since 1868), empowers judges and justices to become amateur historians as they pursue their own developed political agendas, and fails to settle any forthcoming cases. This applies not only to gun violence but to marriage, birth control, or anything else not explicitly mentioned in the U.S. Constitution.
I’ve written about this horrific case before.
Briefly, Zackey Rahimi was — by far — the least sympathetic plaintiff for gun rights. He was alleged to have beat up his girlfriend in a Texas parking lot. Once he realized there was a witness, Rahimi shot in the air and later telephoned the woman (known as CM in court documents) threatening to shoot her if she told anybody. CM obtained a court-ordered domestic violence protective order against Rahimi using the 1994 Violence Against Women Act. He had a history of other shootings, including road rage or a credit card being declined. Rahimi argued that the Violence Against Women Act violated his Second Amendment rights.
The ultra-conservative 5th Circuit originally upheld the Violence Against Women Act. But the court reversed when SCOTUS created a new rule for determining if a gun regulation was unconstitutional. NYS Rifle & Pistol Association v. Bruen established that a firearms law must have an “analogous law” in 1791 (when the Constitution was ratified) or 1868 (when the Constitution was transformed after the Civil War by adding the 13th, 14th, and 15th amendments). In their re-do of Rahimi’s case, the 5th Circuit found that Rahami’s Second Amendment rights had been violated because there was no similar 18th or 19th century law restricting domestic violence (a term that would not be used until the 20thcentury).
The 5th Circuit trivialized domestic violence by comparing it to “recycling” or “not driving an electric vehicle.” A concurrence by Judge James C. Ho demonized women as liars who make up stories about domestic violence as “tactical devices” used in divorce proceedings.
The Supreme Court did not mock domestic violence orders but they never properly focused on how guns fuel intimate partner violence. In 2019, nearly two-thirds of domestic violence homicides in the United States were committed with a gun. Three women are killed by a current or former partner every day in the United States and the presence of a gun in a domestic violence situation increases the risk of homicide by 500%. There are 32,900 non-fatal gun involved intimate partner events every year (90 per day).
The SCOTUS decision certainly saves the Violence Against Women Act. But it embraces an unworkable, radical, and deeply ideological approach to determining what laws are constitutional.
Writing for the 8-person majority, Chief Justice Roberts insisted that what is “dangerous” is not exclusively defined by the laws that were on the books in 1791 and 1868 — we can look at other sources to determine “history and tradition.” But Roberts, Gorsuch, Kavanaugh, and Barrett could not agree on what “history and tradition” means in their various concurrences. The four conservatives talked past each other. Thomas dissented, insisting that an exact analogy was necessary and Rahimi could have his guns. Sotomayor and Jackson signed the opinion but questioned the historical approach.
Bruen’s Madness and Chaos
Before 2008, the Supreme Court considered the first part of the Second Amendment (that mentions the militia) and concluded the Amendment did not apply to individuals, only militias. Justice Scalia revised that in 2008 by declaring that the preface (“A well regulated Militia, being necessary to the security of a free State…”) did not count. Even though District of Columbia v. Heller radically changed American law, the aftermath was stable. Scalia wrote that the right was not absolute and, in the wake of the decision, federal courts found almost all the laws that came before them constitutional.
In her concurrence, Justice Jackson contrasts the period of legal harmony that followed the decision in Heller with the chaos that followed Bruen. There was “little method to Bruen’s madness” and the decision created an “increasingly erratic and unprincipled body of law” according to Jackson citing Joseph Blocher and Eric Rubin. With Roberts, Gorsuch, Kavanaugh, and Barrett all creating different criteria for what counts as “history and tradition,” the new decision does nothing to help the lower courts. In a footnote, Jackson rightfully calls this chaos.
Jackson had many questions (and said this was a partial list). Who is protected by the Second Amendment, from a historical perspective? What about the people who were not full citizens — like women or African-Americans — in 1791 and 1868? Which historical era(s) should help the courts “divine a historical tradition of gun regulation”? What do we do with the contradictions between the conservatives on what eras count? How many analogues add up to a tradition?
While I think Jackson’s analysis is brilliant, I disagree that Rahimi is “inching [the] ball forward” towards a way for the courts to agree on how to interpret the Constitution. The “history and tradition” jurisprudence is radical, outside of the American tradition (unless tradition begins in the 1980s with the Reagan administration and the Rehnquist court), and prone to ideological manipulation. Barrett claims that originalism assumes that the “meaning of constitutional text is fixed at the time of its ratification” and “the “discoverable historical meaning . .. has legal significance and is authoritative in most circumstances” citing Keith E. Whittington. At the time of ratification, people like James Madison and Alexander Hamilton disagreed about the Constitution and what it meant. Who are we to believe?
Capricious Originalism and Coverture
The history and tradition ”method” is little more than justices playing amateur historians as they cherry-pick history for pre-desired outcomes. The justices have no training in weighing sources, knowledge of historiography, etc. I’ve called this capricious originalism. Examples abound but one affects more than 50% of Americans — and should have come up in this case.
In 1791 and 1868, all the “founders” and “publics” agreed about coverture: married women have no legal identity. Coverture fits all the models and I wrote about it as Barrett was being put on the Court. Since the 12th century, coverture was assumed by the common law. It was the law in the colonies, new republic, 1791, 1868, and beyond. We see remnants of it in the 20th century as justices of the SCOTUS denied equal citizenship to women.
For example, marital rape was not a crime. The rape of a married woman by a man other than her husband was a property crime of man against man because the “disgrace” of rape diminished her value. U.S. courts reversed the right to marital rape in the late 1970s under feminist pressure. But “history and tradition” of the 1970s is irrelevant under the Roberts’s court definitions.
My scholarship on the Second Amendment and coverture demonstrates how originalism requires attention to gender inequality — yet only Justice Sandra Day O’Connor has ever taken it on. In 1992 Planned Parenthood v. Casey, she rejected a law requiring women to obtain their husbands’ permission for an abortion. She rejected coverture as inconsistent with modern legal norms. Only “one generation” had passed since the court regarded women as having “‘special responsibilities’ that precluded full and independent legal status.”
She argued that coverture was “of course” no longer consistent with “our understanding of the family, the individual, or the Constitution.” Note her “of course.” The originalism of Bruen and Rahimi makes O’Connor’s approach utterly impossible. Any state could adopt such a law because it would be consistent with history and tradition as defined by Roberts, Gorsuch, Kavanaugh, Barrett, Thomas, and (likely) Alito.
What is at stake in Rahimi is whether we will apply O’Connor’s standards — or the standards of 1868 — to topics like marriage, birth control, or domestic violence.
