There is a disturbingly strong link between gun violence and domestic violence in the United States. According to Everytown for Gun Safety, “An average of 70 women in America are shot and killed by an intimate partner in an average month—and the presence of a gun in a domestic violence situation makes it five times as likely that a woman will be killed.” The organization adds, “Nearly 1 million women alive today have reported being shot or shot at by intimate partners, and over 4.5 million women have reported being threatened with a gun by an intimate partner.”
Recognizing the risk that victims of domestic violence face when guns are involved, most states have promulgated laws restricting abusers’ access to gun access. For instance, in Colorado, a person can only obtain a permit to carry a concealed handgun if, among other things, he or she does not have a temporary or final civil protection order issued against him or her based on domestic violence, stalking, or sexual assault. See C.R.S. § 18-12-203.
There is also a federal law that bans gun possession for people who are subject to domestic violence restraining orders. That federal statute, 18 U.S.C. § 922(g)(8), makes it unlawful for a person “who is subject to a court order that . . . restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and . . . (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . .”
However, 18 U.S.C. § 922(g)(8), was recently deemed unconstitutional by the Fifth Circuit Court of Appeals, in United States v. Rahimi. As a result, it can no longer be enforced in Louisiana, Texas, and Mississippi, the three states that comprise the Fifth Circuit. The ruling was informed by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which traded a two-step test for Second Amendment cases for a new test that emphasizes engaging in a historical analysis of gun laws.
One problem—among many—with this is that these gun laws need to be analyzed in the context of domestic violence. But, as Steve Vladeck, a national constitutional law expert explains, “American society in 1791, and even in 1868, did not recognize domestic violence as the standalone moral and legal scourge that we understand it to be today (the Nineteenth Amendment, guaranteeing women the right to vote, was not ratified until 1920).”
The ruling garnered the attention of national media outlets and advocacy organizations across the country.
- Vox wrote, “Under Judge Cory Wilson’s opinion in United States v. Rahimi, people with a history of violent abuse of their romantic partners or the partners’ children now have a Second Amendment right to own a gun, even if a court has determined that they are ‘a credible threat to the physical safety of such intimate partner or child.’”
- The Atlantic opined, “Originalism Is Going to Get Women Killed,” referring to the Fifth Circuit’s choice to analyze the constitutional text with its original public meaning in mind—at the time it became law.
- Everytown for Gun Safety stated, “The decision is extremely dangerous: If it is not immediately vacated or put on hold and ultimately reversed, it would gut a fundamental public safety law and endanger the lives of domestic violence survivors nationwide.”
- The National Coalition Against Domestic Violence, a project of the National Domestic Violence Hotline, declared it “is appalled by the ruling of a three-judge panel of the United States Court of Appeals for the 5th Circuit in USA v. Rahimi.”
In response, Attorney General Merrick Garland, stated, “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm. Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”
Ultimately, the federal prohibition on gun possession by those who have committed acts of domestic violence could be repealed nationwide if the Supreme Court hears this case and affirms the Fifth Circuit’s decision. That would mark a scary day for victims and survivors of domestic violence.