Andrew Selsky/AP Photo
Firearms are displayed at a gun shop in Salem, Ore., Feb. 19, 2021.
The Fifth Circuit Court of Appeals declared earlier this month that even when a person has a demonstrated history of violent abuse of their romantic partners or the partners’ children, and even when a court has determined that the person is “a credible threat to the physical safety of such intimate partner or child,” that abuser has a Second Amendment right to possess as many guns as he wants. Laws restricting such possession exist in many states, backed up by the federal statute that the court struck down.
People will certainly die as a result of this ruling. Nearly half of female homicide victims are killed by intimate partners, usually with a gun. The restrictions now struck down have been found to reduce such homicides by as much as 25 per cent. Domestic abusers are also likely to kill police officers. Moreover, most perpetrators of mass shootings have a history of domestic violence.
But don’t blame the judges of the Fifth Circuit, which is notorious for conservative activism. It faithfully applied the (not-really-originalist) rules that the Supreme Court laid down last June in New York State Rifle & Pistol Association, Inc. v. Bruen.
Justice Clarence Thomas, writing for the Court, declared that, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” It must “identify a well-established and representative historical analogue,” a “historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.”
That led to the Fifth Circuit’s decision to put guns back in the hands of Zackey Rahimi. Like many domestic abusers, Rahimi hasn’t confined his violence to the home. He was arrested after firing multiple shots into a house when a drug deal went wrong. There were other, similar episodes. Following a car accident, he shot at the other driver, then returned to the accident scene and shot at the driver again. He shot at a constable’s vehicle. When a Whataburger restaurant declined his friend’s credit card, he fired shots into the air.
At the time of the Constitution’s framing, domestic abuse wasn’t a crime. A husband had a right to beat his wife so long as he did not inflict permanent injuries. No founding-era restrictions of firearms, the Fifth Circuit declared, involved “the protection of an identified person from the specific threat posed by another.” Other courts following Bruen have reached similarly startling results, such as finding a right to file serial numbers off guns.
But Bruen is based on an elementary mistake. It attributes constitutional significance not to some carefully selected subset of what happened in the past, but to what didn’t happen. Thomas claims that when a challenged regulation addresses a “general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Moreover, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”
There is in fact a long history of restrictions on firearms in America.
At any given time, however, an infinite number of laws are not enacted. The question of why they are not enacted is an incoherent question. Just as the number of non-enacted laws is infinite, so is the number of reasons why a legislature decides not to enact any of them, starting with the obvious possibility that no one thought of it.
In Bruen, though, the Court confidently holds that when a firearm regulation is not enacted, there is a single explanation: the legislature must have understood that the regulation would have been unconstitutional. This isn’t originalism. It is historical fiction. Congress has never mandated that the Capitol building be painted with big red polka dots. That is not evidence that the Constitution prohibits such a decorative choice.
Even this did not suffice to get Justice Thomas where he wanted to go. There is in fact a long history of restrictions on firearms in America. Might that perhaps show that Americans traditionally have felt free to enact such restrictions whenever they felt there was a good reason to do so? And that they didn’t feel constrained by the Second Amendment until the gun rights movement became influential within the Republican Party? Thomas, however, dismisses all these laws as “outliers.” By the same logic, zebras are white; the black stripes are outliers.
Attorney General Merrick Garland has vowed to appeal the Fifth Circuit’s decision, arguing that the domestic-abuser law is valid “whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment.” He’s right about the Second Amendment but wrong about the Court. Right now, this important protection has been crippled only in the Fifth Circuit: Texas, Louisiana, and Mississippi. If Justice Thomas keeps his majority, however, the damage will spread to the entire United States.
