Published: June, 2022| BWJP

SCOTUS Just Made Domestic Violence More Deadly

By Julie Germann, J.D.

“[All too often] the only difference between a battered woman and a dead woman is the presence of a gun.”  This statement made by the late Senator Paul Wellstone is as true now as when it was made in 1996.  Senator Wellstone made this comment during the debate over the provision of the federal Lautenburg Amendment, which would prohibit the possession of firearms for those convicted of domestic violence.  Firearms and domestic violence are a deadly combination.  Studies continue to show that the presence of a gun in a home with domestic violence increases the risk of homicide by 1000 percent.  This week’s Supreme Court ruling in New York v. Bruen not only upends years of gun control jurisprudence, but it will also undoubtedly increase the number of dead women.  In a 6-3 decision the Supreme Court struck down a New York State law which required a license to carry a concealed handgun outside the home.  The suit was brought by two upstate gun owners who argue that New York’s system of awarding permits to carry handguns in public is so restrictive that it violates the Second Amendment’s “right to keep and bear arms” provision.  The facts of the case do not concern domestic violence, but the holding in the case will have deadly consequences for victims of domestic violence.

This ruling represents the Supreme Court’s largest expansion of gun rights in more than a decade.  In addition to casting doubt on other states’ laws that restrict concealed-carry permits, the ruling in Bruen casts doubt on all current gun control regulations -- and the gun control legislation that is currently making its way through Congress.

Prior to this decision every Court of Appeals in the United States relied on a two-step process for evaluating whether a firearm regulation was consistent with the Second Amendment right to bear arms.  The first step is a historical approach. The court looks to the text, history, and tradition to determine if the regulated activity falls within the scope of the Second Amendment.  If so, the court then considers the strength of the government’s justification for regulating that Second Amendment right.  The Bruen decision replaces the two-step analysis with its own, one-step, history-only analysis. 

With the new framework introduced by the Court in Bruen, everything we thought we knew about firearm regulation –keeping guns out of the hands of domestic abusers or off commercial airlines -- is now called into question. 

Courts can no longer rely on social science data or other empirical evidence to uphold gun control laws.   They cannot cite the data that shows the link between domestic violence and firearm homicide among victims.  Nor can the court rely on the data that tells us nearly 1 million women alive today have been shot or shot at by an intimate partner.  The court also can’t consider the fact that 68% of mass shootings involve shooters who are either in the act of committing domestic violence or have a history of committing domestic violence. And they can’t consider that many of the officers killed in the line of duty are killed while responding to domestic violence.  Finally, they can’t consider existing research that actually shows restricting access to guns by perpetrators of domestic violence reduces intimate partner homicide.  All such data is no longer relevant to the question of which gun control laws are Constitutional.

Courts considering gun control laws can only ask if there is some similar law from 1791 (when the Second Amendment was ratified) or 1868 (when the 14th Amendment was ratified, applying the Second Amendment to the states).  Federal law and some states currently restrict certain specific groups from possessing firearms – such as those with felony convictions, or misdemeanor convictions for domestic violence, and those with mental health commitments or active orders for protection.  Now that courts are required to rely only on history to interpret the Constitution, firearm regulations that prevent these groups of people from possessing are likely to be overturned. 

Historical writings are inconclusive as to whether a felon could possess firearms at the time of  the ratification of the Second Amendment.  Federal felon “dispossession” laws were not on the books until the twentieth century.   Similar laws for those convicted of domestic violence were enacted in 1996.  In Bruen, the Court ignores the fact that New York’s licensing requirement is over 100 years old, disregarding 20th-century historical evidence.  If 20th century laws are not old enough to be historical according to the Court, then it is possible that no gun control law aimed at reducing intimate partner homicide will survive a constitutional challenge.  Historically, women were the property of their spouses and not entitled to protection against abuse.  A judge searching for an early American law prohibiting domestic abusers from possessing firearms will come up empty, because at the time of the ratification of the Second Amendment, it wasn’t illegal to beat your wife.  It wasn’t until 1871, three years after the ratification of the 14th Amendment that Alabama became the first state to rescind the legal right of men to beat their wives. 

The dangerousness of the precedent set by the Court in the Bruen case can’t be overstated.  The Court is swiftly erasing 50 years of advancements in the protection of women from violence from an intimate partner.  SCOTUS has managed to make a dangerous combination – domestic violence and firearms –  even more deadly.