JUSTICE
Here’s how originalism trivializes violence against women
Congress should act before this Court’s originalism sets American law back to the 18th and 19th centuries
This fall the United States Supreme Court will decide whether a Texas man who assaulted his girlfriend in a parking lot and threatened to shoot her if she told anyone has been deprived of his Second Amendment rights. When the assaulted woman later obtained a restraining order against Mr. Zackey Rahimi, federal law made it illegal for him to possess a firearm or ammunition while under that order.
The case has been framed as a critical decision about Mr. Rahimi’s Second Amendment right to keep and bear arms, but United States v. Rahimi is really a case about an unnamed woman’s safety.
The case poses a serious threat to women’s legal status and safety — and the ability of Congress to pass laws that protect bodily autonomy. The Rahimi case should be understood as a companion case to both Dobbs v. Jackson Health — overturning Roe v. Wade — and NYS Rifle & Pistol Association v. Bruen — overturning a 100 year old NYS law regulating concealed carry. A radical originalist decision in favor of Rahimi risks reducing women to second class citizens, making people of all genders less safe, and dangerously narrowing the power of representatives and senators elected to serve in Congress.
The case comes out of the conservative 5th Circuit Court of Appeals. It is impossible to overstate how the majority and concurring opinions trivialize the violence against the particular woman that Rahimi assaulted — and all the people she represents in the United States.
The Supreme Court’s Second Amendment opinions have in the past emphasized the rights of “law abiding, responsible citizens” (Heller) and “ordinary, law-abiding citizens” (Bruen) to “keep and bear arms.” In his majority opinion for the Court of Appeals, Judge Cory T. Wilson concedes that Rahimi is not a “model citizen” but insists that until Rahimi is convicted, under indictment, or released on pretrial bail, he is part of “the people” whose rights to “keep and bear arms” cannot be limited by a restraining order in a domestic abuse case.
The woman who was beaten and threatened with a gun is not named to respect her privacy. Judge Wilson further erases her rights by failing to discuss her safety or any right she might have under the Constitution. I will call her Ms. DASM (Don’t Assault or Shoot Me) for her identity cannot be reduced to Rahimi’s girlfriend and she represents thousands of people in the U.S.
Some history is useful context here. Lawmakers in the 18th and 19th century accepted domestic violence as part of marriage. This changed in the 1970s and by 1994, there was bi-partisan congressional support (235–195 in the House and 61–38 in the Senate) to pass the Violent Crime Control and Law Enforcement Act of 1994. President Bill Clinton signed this expansive crime bill, and it established that a person who is under a protective order for domestic abuse cannot have guns and ammunition.
Based on domestic violence data, Congress sought to protect people like Ms. DASM who had been violently attacked and threatened with a gun. But Judge Wilson’s majority opinion frames Congress as the threat. Judge Wilson foresees the government “stripping” speeders or “[p]eople who do not recycle or drive an electric vehicle” of their right to keep and bear arms.
Judge James C. Ho’s concurrence is worse. Judge Ho insists restraining orders are issued without any actual threat or danger: “tactical devices” used in divorce proceedings. He provides data and some anecdotes such as a judge issuing a restraining order against David Letterman. Is this a clumsy dog whistle suggesting men are falsely accused by harpy women seeking advantageous divorce outcomes? Yes.
Neither judge focuses on Ms. DASM, the person that Rahimi assaulted and threatened to shoot if she told anyone about the assault. She has vanished. Instead, Rahimi is now fighting the government that created the law designed to protect her. Wilson and Ho insist that Rahimi is the victim of government power.
Neither judge presents any of the data that Congress used in 1994 to justify the law. There are no statistics regarding intimate partner violence — no information about how infrequently intimate partner violence is reported. Today, more than 20,000 phone calls are placed to domestic violence hotlines each day and the presence of a gun in a domestic violence situation increases the risk of homicide by 500%.
How can these judges erase the person assaulted and threatened with a gun?
How can they ignore the data regarding public safety for people victimized by intimate partner violence?
The answer to both questions is the rise of a dangerous new method for interpreting the U.S. Constitution: originalism.
The first time the 5th Circuit ruled in this case, the judges had to ask whether the government had an important (“compelling”) interest in protecting people who had suffered intimate partner violence. The 5th Circuit ruled that the court order stood: no guns for Rahini. But in June 2022, the U.S. Supreme Court established a new approach to the Second Amendment. In NYS Rifle & Pistol Association v. Bruen, the Court insisted that a law was not constitutional unless there was an analogous law restricting guns to domestic violence 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 Mr. Rahami’s Second Amendment rights had been violated because there was no similar 18th or 19th century law.
So-called “originalists” claim that their approach is politically neutral because they search for the meaning of the Constitution in the original understanding of the public in 1791 and 1868. But originalism is neither objective or neutral.
When presented with extensive historical research in Bruen, the conservative majority cherry-picked history to overturn the 100-year old NYS law and demonstrated what I have called “capricious originalism.” If we set the politics of originalism aside, we are still left with a problem. An originalist interpretation leaves women as second-class citizens — and makes it impossible for Congress to prevent mixing firearms with domestic violence because it is not part of the “history and tradition” of the U.S. until the 1970s. The people who wrote and ratified the Constitution did not believe married women were legal persons.
Instead, the held to the common law belief that husband and wife were one person in the law, with the husband “covering” his wife. American coverture required husbands to financially support their wives and required married women to supply domestic service and sexual access. Women could not sue or be sued, control guardianship of their children, work without their husbands’ permission, or have power over the wages.” Husbands could legally beat their wives (to coerce them into desired “domestic habits”) and 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. If a married woman had consensual extramarital sex, she injured her husband’s exclusive sexual rights.
In 1961, the SCOTUS ruled that women who murdered their husbands could be tried by all-male juriesbecause Florida exempted women from juries as “the center of home and family life.” Though there were some states who passed laws restricting wife-beating in the late 19th century, the United States did not start to revolutionize how it treated domestic violence until the late 1970s.
Judges Wilson and Ho lean into due process and the duty of the assaulted woman to report the crime because a criminal case would change the process and Rahimi’s guns might be restricted. But this ignores all the data that confirm that people are reluctant to report such violence and they suffer consequences when they do. In this case, Rahimi threatened that he’d shoot Ms. DASM if she told anyone — but that gets no attention from either Wilson or Ho.
This case will be heard by the Supreme Court justices this Fall. But now is the time for the public, legislators, executive, medical professionals who treat domestic violence survivors, and scholars to wage their own campaign. Congress should act before this Court’s originalism sets American law back to the 18th and 19th centuries.
Dr. Susan Liebell, Professor of Political Science, Saint Joseph’s University
Co-host, New Books in Political Science on the New Books Network
