Opinion: The Supreme Court takes up guns and domestic violence

By JONATHAN P. BAIRD

Published: 10-22-2023 5:00 PM

Jonathan P. Baird lives in Wilmot.

In November, the Supreme Court will be hearing a case, United States v Rahimi, about whether the Second Amendment invalidates a federal law that prohibits possession of a firearm by an individual subject to a domestic violence restraining order. The Fifth Circuit Court of Appeals, a federal appeals court with jurisdiction over Texas, Louisiana and Mississippi, invalidated the law on its face holding that people subject to a restraining order have a constitutional right to possess guns.

You don’t have to be a lawyer to know that what the Fifth Circuit did in this case was nuts. A court had already determined that the abuser is “a credible threat to the physical safety of such intimate partner.” The sexist disregard for the safety of women is truly shocking. It is part of a more general societal failure to reckon with public safety issues connected to guns.

I had my own personal revelation about guns and domestic violence. A number of years back when I worked as a lawyer for New Hampshire Legal Assistance, I spent almost two years handling domestic violence-related cases. Often the cases were civil restraining orders seeking protection from abuse at a final hearing. I also handled some custody and divorce cases where domestic violence factored into the case.

Doing the cases, I saw enough to become aware that among abusers, there was a subset who relied on weapons to intimidate and exercise control over their victims. Often the abusers had extensive arsenals. They would wear weapons on their person that included guns and knives fitted into shoulder and ankle holsters.

There was an unmistakable message to the domestic violence victim: “Do as I say or else.” Death threats, threats of bodily harm and threats to kidnap children are all too common.

At the risk of seeming naive, the discovery of this dark side of the domestic violence universe surprised me. You don’t see it because the abusers typically operate behind closed doors. In spite of all the domestic violence education that has transpired over the last 50 years, the extent of the guns/domestic violence confluence remains obscured and under-appreciated.

Guns back up the threats and emotional abuse and they act as the enforcer. They are an essential tool in the domestic violence purveyor toolkit.

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Every month 70 women are shot and killed by an intimate partner. Over 4.5 million women have reported being threatened with a gun by an intimate partner. Access to a gun makes it five times more likely that a woman will die at the hands of a domestic abuser. In nearly half of mass shootings with four or more people killed, the perpetrator shot an intimate partner or a family member.

The public health dimension of the guns/domestic violence confluence has been hidden. It is an enormous public health emergency. I would suggest that the gun industry and gun rights organizations are playing a role similar to the role the tobacco industry played with cigarettes and fossil fuel companies are playing with climate change. They merchandize doubt in an attempt to muddy public understanding.

Interestingly, in the Fifth Circuit decision in Rahimi, one of the judges, James Ho, in a separate concurrence, raised the classic canard. In his opinion, Ho argues that courts should be skeptical of a law seeking to disarm people subject to a domestic violence restraining order because women alleging abuse use restraining orders as a tactical leverage device to secure favorable rulings on other issues like custody, child support and exclusion from marital residence.

No doubt that happens but Ho uses it to minimize the very real threat to women the Court’s ruling represents. The Fifth Circuit entirely misses the sexist background to guns and domestic violence. The dynamic of power, control and victimization is not understood. Women have never had equal rights, particularly around domestic abuse.

To fully appreciate the depth of the sexism, American history must be visited. For a good part of our history, husbands had a legal right to subject their wife to physical violence. It was called chastisement if a wife defied her husband’s authority. A husband could corporally punish his wife as long as he didn’t inflict permanent injury upon her. Really until the 1970s and the advance of feminism, wife-beating was considered a private matter between husband and wife. The state did not intervene.

Women’s lesser rights in the personal realm fit in with the broader historical pattern of men having rights and women having lesser or no rights. Ironically, the Fifth Circuit was blind to this sexist history even though they use their own version of history to justify the outcome in Rahimi.

The Fifth Circuit found that gun laws must fall unless the government can prove the regulation is consistent with the nation’s historical tradition of firearm regulation. That court couldn’t find historical analogies in early American history. They found that early laws that disarmed people considered to be dangerous were not on point. The Fifth Circuit’s analysis relied on an interpretation of the law mandated by an earlier Supreme Court case, New York Rifle & Pistol Association , Inc. v Bruen.

The crazy thing is that the Fifth Circuit did not consider how much American society and firearm technology have changed since the 18th century. A misguided originalism leaves out all we have learned about domestic violence. Nor did it consider the massive proliferation of guns which did not exist in early America.

Zackey Rahimi is not exactly the ideal defendant. Between December 2020 and January 2021, he was involved in five shootings. He had threatened his then-girlfriend with a gun and was seen dragging her into his car at a public parking lot before firing a gun at an eyewitness. He pleaded guilty to possession of a firearm while under a restraining order.

Now it is up to the Supreme Court to decide this case. A decision to uphold the Fifth Circuit’s ruling would potentially re-arm thousands of batterers who had committed court-found abuse. It is hard to imagine something more dangerous.