Reconciling Domestic Violence Protections and the Second Amendment

Abstract

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which the Supreme Court will review in the 2023-24 term, highlights the unworkability of the Bruen test. Women’s rights were virtually nonexistent when the Second Amendment was ratified. Domestic violence was tolerated, and it was not until nearly 200 years later that protective order statutes were enacted across the United States. Looking to the past to justify modern-day gun safety laws gravely threatens women’s rights and safety.

But Bruen does not require such a narrow reading. Significant historical and legal precedent exists for disarming dangerous persons, and those who have had protective orders entered against them undoubtedly fall into that category. This article’s feminist critique of Bruen demonstrates why its holding is deeply problematic, but it also shows that it is possible to both hew to Second Amendment jurisprudence and protect survivors of intimate partner violence.

Keywords: firearms, guns, Second Amendment, constitutional law, gender, domestic violence, intimate partner violence, feminist critique