Opinion: The Supreme Court recognizes we have a right not to be shot

Editor’s Note: Jennifer Tucker, PhD, is a professor of History at Wesleyan University and the founding director of Wesleyan’s Center for the Study of Guns and Society. She is a member of the Historians Council on the Constitution at the Brennan Center for Justice at NYU Law School. The views expressed in this commentary are her own. View more opinion at CNN.

The Supreme Court’s willingness to uphold the ban on access to firearms for domestic abusers will save many hundreds, if not thousands, of lives. On Friday, the court rejected a challenge to the constitutionality of a federal law that bans the possession of a gun by someone who has been the subject of a domestic violence restraining order, in the long-awaited decision of the US v Rahimi case.

In a majority opinion, written by Chief Justice John Roberts, eight of the nine justices voted to reject a challenge to Section 922(g)(8) of the Violence Against Women Act. The statute was passed in 1994 in response to the high rates of domestic violence and sexual assault against women. Justice Clarence Thomas was the lone dissenting voice, insisting on the need to find justification for the decision in the laws prevailing when the Second Amendment was approved.

The opinions in Friday’s decision suggest that the justices are still grappling over the definition of originalism, constitutional meaning and the role of history in Second Amendment litigation. But Friday’s decision should provide some needed guidance.

Chief Justice Roberts explained that “Since the founding, our Nation’s firearms laws included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.” The court held that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed, and that this is consistent with the Second Amendment.

As Roberts wrote, “some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” Otherwise, he explained, the Second Amendment would only provide protection to “muskets and sabers.”

This decision is consistent with prior cases in which the Supreme Court acknowledged the danger of armed abusers. For example, in US v Castleman (2014) it recognized that “[d]omestic violence often escalates in severity over time, … and the presence of a firearm increases the likelihood that it will escalate to homicide.” In Voisine v US (2016) it said that “[F]irearms and domestic strife are a potentially deadly combination.”

In the 2022 case of New York State Rifle & Pistol Association v Bruen, the Supreme Court voted to strike down a century old New York gun law that placed restrictions on carrying a concealed handgun outside the home — an opinion that marked the widest expansion of gun rights in a decade.

Prior to Bruen, lower courts evaluated gun laws using a combination of historical research and evidence about how the laws served an important national interest, such as public safety.

The impact of Bruen on New York and throughout the country cannot be overstated. It led to hundreds of challenges to gun laws in lower courts across the country, over issues from where guns may be carried to large-capacity magazines. It placed a wide range of federal and state gun regulations in jeopardy, with judges ruling against bans on AR-15 rifles, laws restricting adults under 21 from purchasing or carrying handguns in public and other gun-control measures found to be lacking in “historical tradition.”

Judges across the country are clashing over history two years after the Supreme Court upended how courts decide Second Amendment cases.

In oral arguments last November, US Solicitor General Elizabeth Prelogar did not critique the doctrine of originalism, nor the court’s new “history and tradition” test which it laid out in Bruen. Instead she argued that history “before, during and after the Founding Era” allowed the government to disarm individuals who were dangerous.

Supporting her argument were briefs from public health researchers,  domestic violence experts,  lawyers, doctors and law enforcers, who documented the need for restricting domestic abusers’ access to guns while under a protective order.

In contrast, opponents of gun regulation, citing the Bruen decision, argued in amicus briefs that it requires essentially identical laws to have existed at the time of the Founding for a modern gun law to be in conformity with the Second Amendment right to bear arms. This argument was in supporting briefs for Rahimi, which included, among others, the NRA; Phyllis Schlafly Eagles and Eagle Forum; and the Gun Owners of America.

What does history say?

As historians have noted, in relation to the Rahimi case, even if you look to the past, you won’t find broad support for arming abusers. Moreover, in Bruen, the court acknowledged that the many technological and social changes that have taken place since the Founding could be considered in gun cases.

At the time of the Founding, guns were only rarely used to murder intimate partners. Few people had pistols, and flintlock muskets were too cumbersome to use indoors. According to Randolph Roth, author of the book “American Homicide”, “Marital murderers seldom used more than their fists or feet. Sometimes they picked up whatever was at hand—a stick, a stone, a tool.” Modern pistols are significantly easier to use, and much more lethal, than the flintlock weapons of the 18^th century.

Since the Founding Era, the prevalence of handguns in American households has increased roughly tenfold, and their use in homicides has increased nearly fivefold. 

Drawing an unchanging line from flintlock to AR-15 — comparing products like they are all alike — is a myth that historian Brian DeLay has described as pushing a “myth of continuity.” Pepperdine University legal scholar Jacob Charles has called this dilemma being shackled to “the dead hand of a silent past.”

The importance of the Rahimi decision

According to law enforcement data, 76% of female murder victims are killed by someone they know and more than one third are killed by an intimate partner. Another study found that an abused woman is five times more likely to be killed by a male partner  when there is a firearm in the house. The National Coalition Against Domestic Violence reports that the presence of a firearm in the home increases the risk of homicide by 1,000%.

Domestic violence is also tied to mass shootings. A recent study found that nearly 60% of mass shootings between 2014 and 2019 were domestic violence-related, and in nearly 70% of mass shootings, the perpetrator either killed at least one partner or family member or had a history of intimate partner violence.

Responding to a domestic violence incident is also one of the most dangerous jobs for police.

Finally, evidence shows that restricting firearm possession by domestic abusers is often an effective preventative measure. States that have more restrictions on firearms in domestic abuse cases have a female homicide rate reduced by as much as 25% lower compared to more permissive states.

The Supreme Court took a step in the right direction. There is still great uncertainty about how lower courts will apply the Bruen “history and tradition” test in other firearms regulation cases.  This uncertainty has empowered gun rights advocates and led to a relaxing of gun laws across the country in the past two years.

Amid dueling visions of firearms rights, and the battle over “history and tradition,”in a country plagued by gun violence,  it is important to remember that the Declaration of Independence gave Americans a right to “life, liberty, and happiness.” People arguably also have a “right not to be shot.”