Judges in the Federalist Society cartel are making reductio ad absurdum anti-originalism hypotheticals into the law of the land:
The law in question here is a federal statute that bars individuals from possessing guns if they are “subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner.” The case began in 2020, when Rahimi’s ex-girlfriend accused him of assaulting her. A Texas court then issued a civil protective order restraining Rahimi from harassing, stalking, or threatening his ex-girlfriend (or their child). Rahimi agreed to this order, which also explicitly barred him from possessing a gun. Yet officers later discovered a rifle and a pistol in his home. Prosecutors then charged him with unlawfully possessing the guns and secured a conviction.
After the Supreme Court issued Bruen, Rahimi argued that his conviction was unconstitutional. In the district court, Justice David Counts—a Donald Trump appointee—agreed, striking down the federal law. And on Thursday, a three-judge panel of the 5th Circuit upheld Counts’ decision. The panel was composed of two Trump appointees, Judges Cory Wilson and James Ho, as well as the arch-conservative Ronald Reagan appointee Judge Edith Jones.
In his opinion for the court, Wilson declared that there is no deeply rooted tradition of disarming individuals under a restraining order for domestic abuse. The modern law “embodies salutary policy goals meant to protect vulnerable people in our society,” he wrote, but courts have no power to weigh “those policy goals’ merits.” They may only look to U.S. history. And the record compiled in this case failed to prove that domestic abusers were routinely disarmed in the 18th and 19th centuries. “Our ancestors,” Wilson wrote—meaning the white men who wrote the laws—“would never have accepted” such a practice.
Wilson acknowledged that people deemed “dangerous” were denied the right to bear arms, including slaves and Native Americans. But, he asserted, these people were disarmed “by class or group, not after individualized findings of ‘credible threats’ to identified potential victims.” Moreover, the purpose of disarming “dangerous” people was “the preservation of political and social order, not the protection of an identified person from the specific threat posed by another.” Thus, these older laws are not “relevantly similar” to the modern statute under Bruen. Wilson also speculated about a parade of horribles if the government could remove “irresponsible” or “non-law abiding people” from “the scope of the Second Amendment.”
“Could speeders be stripped of their right to keep and bear arms?” Wilson asked. “Political nonconformists? People who do not recycle or drive an electric vehicle?”
Of course, domestic abusers are categorically different from speeders and dissidents. There is a reason why the government disarms them today: They are at exponentially heightened risk of using their gun to commit murder. As I wrote in November, an abuser’s access to guns makes it five times more likely that a woman will be killed. More than half of intimate partner homicides are committed with guns. An American woman is shot and killed by an intimate partner every 14 hours. Domestic abusers are also disproportionately likely to commit mass shootings: Nearly 60 percent of mass shootings between 2014 and 2019 were related to intimate partner violence, while 68 percent of mass shooters had a history of domestic violence.
There is also a reason why the government did not disarm domestic abusers in the past: Domestic violence was not deemed a criminal offense for most of American history. When women were denied equal citizenship, the men who wrote and enforced the laws viewed wife-beating as a mere “familial affair” beyond the province of the courts. 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. It’s no surprise, then, that the historical record shows no history of laws keeping guns out of the hands of abusers. The very notion that men should not be allowed to abuse their wives and girlfriends is a modern belief that only developed in the 20th century.
There are a variety of technical arguments to be raised against “originalism” — abstract phrases rarely have a straightforward fixed “original public meaning,” trained historians have difficulty in answering these kinds of questions, judges are not trained historians and have every incentive to engage in tendentious cherry-picking, etc. But at bottom the problem with “originalism” is that even if it can’t be done we shouldn’t do it — the idea that we should be forever bound to 17th and/or 18th century conceptions of human rights when nothing in the relevant texts even requires such an interpretation. It leads you to deeply perverse and immoral places like “the state cannot disarm domestic abusers because men in 1789 and 1868 thought they had the right to abuse their domestic partners and women had few rights that men were bound to respect. And this is also an illustration of the obvious fact that “originalism” is an inherently reactionary enterprise, not a politically neutral one.
As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, 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 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.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
–Breyer, Sotomayor, and Kagan, JJ., Dobbs v. Jackson Women’s Health (dissenting)