In overruling New York’s law prohibiting carrying a firearm in 2022, the U.S. Supreme Court created a ridiculous new standard for analyzing gun laws.
In New York State Rifle & Pistol Association v. Bruen, SCOTUS overruled its previous precedent, which required balancing a regulation’s burden on Second Amendment rights against the need for public safety. In other words, when a government wanted to restrict carrying a weapon, it had to prove the health and safety reasons for doing so. That went out the window with the Bruen decision written by Justice Clarence Thomas. The new rule requires the government to establish that its gun regulation was “consistent with the Nation’s historical tradition of firearm regulation.”
A significant problem with this so-called historical approach is that the legal system before the 1970s did not address domestic violence. For centuries, wife beating was not a crime, and until the late 19th century, women were the property of their husbands. Women did not have the right to vote before 1919. Using a historical ruler that did not recognize the right of women to be safe is a prescription for disaster. In 1994 the United States enacted the Violence Against Women Act, which makes it illegal for anyone subject to a domestic violence restraining order to possess a firearm. Unfortunately, federal courts are ignoring this common-sense approach to preventing violence.
Under the authority of Bruen in November 2022, U.S. District Judge David Counts of the Western District of Texas in United States v. Perez-Gallan held unconstitutional 18 U.S.C. § 922(g)(8), which is the federal ban on possessing a firearm while under a court order that “restrains [the possessor] from harassing, stalking, or threatening an intimate partner . . . or child . . . , or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.” Perez-Gallan was arrested with a pistol while subject to a Kentucky family court restraining order issued after an arrest for domestic violence assault. Before Judge Counts, the defendant claimed the indictment was unconstitutional under Bruen.
Judge Counts analyzed the history of the government’s role in domestic violence prevention. He found and ruled “that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation” and struck down the law as unconstitutional, ignoring a well-established reality that men who have committed domestic violence are most likely to be repeat offenders and they are dangerous when armed.
The government has appealed the Perez-Gallan decision to the Fifth Circuit Court of Appeal, which is expected to uphold the finding that the prohibition against possessing firearms when under a restraining order for domestic violence is unconstitutional. In February 2023, in the case of United States v. Rahimi, the Fifth ruled that there was no historical basis for prosecuting the possession of a firearm in violation of a restraining order. That’s the federal law currently in Texas, Mississippi, and Louisiana.
Tragically Bruen has given federal courts carte blanche to ignore a modern-day reality and tragedy for women needing abortions and to be protected from partner violence.
In his dissent in Bruen, Justice Breyer stated that people subject to domestic violence by a partner are five times as likely to be killed when their intimate partner has a gun. The Giffords Law Center to Prevent Gun Violence reports that women in the U.S. are twenty times more like to die from being shot than women in other high-income societies. Nothing more needs to be said.
Ironically, in 2022, Congress extended the Violence Against Women Act to include all dating partners of women, not just those with whom they had a child or to whom they had been married. That change would prevent any of these perpetrators of domestic violence from possessing a firearm when under a domestic violence restraining order. But in the post-Bruen world, that hope is nonexistent.
Absent significant public outrage on gun violence against women, SCOTUS will most probably uphold Rahimi and the expected decision in Perez-Gallan. All the more reason for the Supreme Court being held in contempt by most Americans.
Six judges on the Supreme Court forever have destroyed the reputation, regard, and respect for the high court and the Constitution in their reversal of Roe v. Wade and have confirmed that they are the political arm of the right wing of the Republican Party. They have demolished the revered role of the Supreme Court as simply interpreting the Constitution, cast aside the rule to adhere to precedent, and made a mockery of the conservative complaints deriding so-called judicial activism.
The concept that everyone is created equal is comforting, but in our lifetimes, we have learned it is a myth, and the decisions in Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen seal the loss.
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