WASHINGTON (CN) — Gun regulations preventing domestic abusers from possessing firearms were shot down on Thursday at the Fifth Circuit not because modern society deems them unnecessary but because the founding generation did.
The USA v. Rahimi ruling is just one of many relying on the Supreme Court’s new framework for evaluating gun laws under the Second Amendment. If the founders did not have an analogous law regarding firearms, then neither can modern society.
Published at the end of the court's last term, New York State Rifle & Pistol Association Inc. v. Bruen upended 14 years of Second Amendment case law by forcing judges to evaluate gun regulations based on historical analogies versus a two-part categorical test that had been used since the 2008 District of Columbia v. Heller decision. So while Bruen guided the Fifth Circuit to let domestic abusers with restraining orders obtain weapons, the court would likely have ruled differently just eight months prior.
“Weighing those policy goals’ merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights,” the unanimous New Orleans-based panel wrote. “But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an ‘outlier that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.”
Lower courts have been using the new framework from Bruen to strike down gun regulations across the country, but the Fifth Circuit is only the second federal appeals court to give an interpretation. The case also targets a federal regulation versus state law. Experts on firearms regulations say this case in particular illustrates Bruen's potential pitfalls.
“The problem after Bruen is that the founding generation did not view domestic violence as all that much of a problem,” Eric Ruben, an assistant professor of law at SMU Dedman School of Law and a Brennan Center fellow, said in a phone call.
The Bruen test requires attorneys and judges to look back to the 1700s for potential analogous gun regulations. But in the 1700s, domestic violence was not dealt with in the same manner as it is now. Men even had chastisement rights that allowed them to discipline their wives and other family members.
“One of the shocking things about this opinion is that, at the end of the day, it's basically saying that, because the founding generation had different moral sensibilities than we do when it comes to gendered violence, we are not allowed today to pass domestic violence laws that we know could save a lot of lives,” Ruben said.
Finding analogous laws is not the only problem experts are seeing in how courts are interpreting Bruen. At the Fifth Circuit, the government cited founding-era laws that prevented categorial groups from possessing firearms. For example, the government disarmed Native Americans, enslaved and freed Black Americans, and those who were disloyal to the United States. The New Orleans panel did not think these categorical groups were analogous enough to disarm domestic abusers.
“The court basically says well those were group-based disarmament laws so therefore they're not analogous to 922(g)(8) — this federal prohibition — because the federal prohibition is a targeted individualized disarmament, not a group-based disarmament and therefore it can't be supported by these old group based laws,” Jake Charles, a professor at Pepperdine Caruso Law, said in a phone call.
How analogous modern gun laws must be to founding-era gun laws is yet to be determined. Justice Clarence Thomas wrote the majority opinion in Bruen but did not provide guidance on how courts should weigh these factors. Without that guidance, courts are free to determine how analogous laws can be on their own. While the Fifth Circuit did not think these laws were closely related enough, it's possible another appeals court could rule the opposite.