The gun ruling that exposes the misogyny of "originalism"
The 5th Circuit rules a ban on gun possession by perpetrators of domestic violence is unconstitutional because such a ban never occurred to men in the 1700s
When the Fifth Circuit Court of Appeals ruled last week that a man under a restraining order for domestic violence has a right to gun possession, it got the Supreme Court’s “historical tradition” test wrong — but the real problem is the test itself.
The Fifth Circuit got it wrong
In the Supreme Court’s 2022 N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen ruling, the Court created a new standard under which limitations on gun ownership must be “consistent with the Nation’s historical tradition of firearm regulation.” We’ll come back to why that is a terrible standard. First, let’s dispose of the Fifth Circuit’s terrible application of it.
The case before the Fifth Circuit involved Zackey Rahimi, who was under a civil protective order after allegedly assaulting his ex-girlfriend; the order prohibited him from “harassing, stalking, or threatening his ex-girlfriend and their child” and “expressly prohibited [him] from possessing a firearm.” After less than a year under this protective order, the man got a gun and started shooting … and shooting … and shooting:1
Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.
Rahimi was then indicted for breaking a law that prohibits the possession of firearms by someone under a domestic violence restraining order. Last week, the Fifth Circuit Court of Appeals ruled that this law is unconstitutional because it (supposedly) fails the “consistent with the Nation’s historical tradition of firearm regulation” test the Supreme Court established for gun laws last year.2 The Fifth Circuit’s dismissal of several proffered analogous laws is a shameless exercise in hair-splitting:
The Government next points to laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans. […] Despite some facial similarities in how these “dangerousness” laws worked—like §922(g)(8), they operated to disarm covered people—there were also material differences. For one, they disarmed people by class or group, not after individualized findings of “credible threats” to identified potential victims.
The circuit court offers no argument or rationale in favor of its assertion that “those unwilling to take an oath of allegiance” constitute a “class or group,” but people who are subject to a restraining order for domestic violence do not.3 ¯\_(ツ)_/¯
The Fifth Circuit, continuing directly:
Even more, why they disarmed people was different. The purpose of these “dangerousness” laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another. Therefore, laws disarming “dangerous” classes of people are not “relevantly similar” to § 922(g)(8) such that they can serve as historical analogues.
It is unclear how laws that protect people from specific threats posed by other people are not about, at least in part, the “preservation of the political and social order.” Once again, the circuit court offers no argument or rationale for the distinction it asserts.
And that’s how the Fifth Circuit decided people under restraining orders for domestic violence should be able to have guns: By simply asserting distinctions that are not self-evident, and pretending these asserted distinctions render the laws in question dissimilar.
The Supreme Court got it more wrong
The deeper problem here is that the standard the Supreme Court established is both dumb and morally indefensible.
Let’s take the dumb part first.
The Supreme Court says the only restrictions on gun ownership that are constitutional are those with direct analogues that were in place when the Constitution was ratified. But that is inconsistent with one of the core purposes of a constitution, which is to establish a framework for government and boundaries within which future laws must fall, in recognition that the writers of the constitution cannot anticipate every law that will be necessary and valid decades and centuries to come. If the only laws that are ever acceptable are the ones that were in place when the constitution was ratified, you don’t need a constitution. Inherent in the act of drafting a Constitution, rather than simply a bunch of specific laws, is the recognition that things change and the future may require different laws, some of which might be unimaginable while writing a constitution.
The Supreme Court’s “historical tradition” test is rigged
If courts being dumb was our only problem, we’d be getting off easy. The real problem is that the standard the Supreme Court has established — that modern America can have no gun laws that weren’t present in colonial America — is a vivid and infuriating illustration of the conservative movement’s desire to freeze America’s laws and society in the late 1700s, before women started voting and things went to hell.4
Were there laws in place prior to the ratification of the Constitution that are substantially similar to a prohibition on the possession of guns by people accused of domestic violence? The Firth Circuit says no; I say yes but who cares? It is fundamentally a rigged question — a question rigged against the very people most likely to be hurt by domestic violence.
Our constitution was drafted exclusively by men. Laws in place at the time were written exclusively by men. And the men doing all this law-making and constitution-drafting were not particularly concerned with the rights or well-being of women. They didn’t allow women to vote, they restricted the property rights of women, and the legal systems they created “implicitly accepted wife-beating as a husband’s right, part of his entitlement to control over the resources and services of his wife.”5 Did these men enact precise analogues of modern domestic violence laws? Who gives a damn?
We owe no allegiance to the gender politics of such men.
And that’s the insurmountable, unacceptable flaw of originalism, the arbitrarily-applied doctrine conservatives use as a shield against progress. By insisting on perpetual deference to the white, male ruling class of 1789, they perpetuate via judicial doctrine the very inequalities they constantly insist are irrelevant artifacts of a long-abandoned past.
Conservatives love to complain that people won’t just get over historic oppression. Sure, it was bad that America enslaved Black people and denied women the right to vote, they’ll grudgingly acknowledge while insisting that was a long time ago and it’s over now so what’s your problem? And meanwhile they insist that we can’t place any limitation on the gun ownership rights of men who beat their wives and girlfriends because the men who held a monopoly on political power in the 1700s (many of whom claimed ownership of and raped and beat Black women) didn’t write laws protecting women from violent men. They want to continue imposing a racist and sexist worldview on you, and they’d really appreciate it if you would please shut up about it already.
“Historical tradition,” the two courts agree, essentially means “in the late 1700s.” Again, we’ll come back to this nonsense.
Note, too, that the prohibition on gun possession by those under domestic violence restraining orders is a narrower limitation on gun rights than the colonial laws in question. It’s amusing to think the gun fetishists who control the federal judiciary would be more likely to uphold the constitutionality of a limitation on gun rights if only it was broader. That’s what the Fifth Circuit pretends, but we don’t have to pretend to believe them.
This is a longstanding conservative joke-that-isn’t-really-a-joke, as evidenced by the explicit embrace of it by a Trump-backed congressional candidate and the implicit endorsement of it by the Supreme Court.
Not to mention that they routinely raped and beat the Black women over whom they claimed ownership.