Reconciling Domestic Violence Protections and the Second Amendment

138 Pages Posted: 7 Aug 2023 Last revised: 20 Sep 2023

See all articles by Natalie Nanasi

Natalie Nanasi

Southern Methodist University - Dedman School of Law

Date Written: August 7, 2023

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

Suggested Citation

Nanasi, Natalie, Reconciling Domestic Violence Protections and the Second Amendment (August 7, 2023). 59 Wake Forest L. Rev. 131 (2024), SMU Dedman School of Law Legal Studies Research Paper No. 610, Available at SSRN: https://ssrn.com/abstract=4533187 or http://dx.doi.org/10.2139/ssrn.4533187

Natalie Nanasi (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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