In a long-awaited and controversial gun rights case and bitterly divided opinion, the US Supreme Court has determined that the Second Amendment protects the rights of male domestic abusers to own and carry a firearm.

Under the doctrine of Originalism, the Court’s conservative justices have now made clear that they meant what they said when they stated that there are no constitutional rights other than the ones envisioned by our nation’s founders at the time of our nation’s founding.

This includes, obviously, a woman’s right to protection from domestic abuse. There is none because there was none at the time of our nation’s founding.

In a lengthy section of the opinion detailing the history of women’s rights in America, the Court concluded that today’s current laws prohibiting male domestic abusers from owning a firearm infringe on their Second Amendment Right to Bear Arms.

Originalism: There is no Right to Protection from Domestic Abuse

The written opinion is reminiscent of the oral arguments in this case from last year, where Chief Justice Roberts asked counsel for the government, “Colonial laws provide no justification for laws restricting the ownership of weapons by domestic abusers. The very thought is ludicrous. Counsel, can you point to a colonial law that says a domestic abuser has no right to self-defense?”

After letting the attorney stammer for a few minutes, embarrassing himself, Justice Gorsuch intervened, saying, “No sir. There is none, is there? We have found none….”

Rahimi – The Fifth Circuit Court of Appeals

At oral arguments, the parties discussed the facts of the case, including how Rahimi had not only been convicted of domestic violence but had repeatedly shot at people, including:

• A bystander who saw him shove his girlfriend,
• An acquaintance who insulted him on social media (he fired an AR-15 into their house),
• A driver in a car accident,
• A truck that flashed its lights at him on the highway, and
• A Whataburger employee after his credit card was declined.

Rahimi was then charged with violating a domestic violence protective order that barred him from possessing guns, convicted, and appealed to the Fifth Circuit Court of Appeals.

The Fifth Circuit denied his appeal because, well, it sounded kind of ridiculous. This guy should be the poster child for gun control. Then the US Supreme Court decided Bruen, and, based on the US Supreme Court’s plain language in Bruen, the Fifth Circuit reversed themselves and found that the law Rahimi was charged with is unconstitutional.

The Supreme Court then agreed to take the case.

Rahimi – the Supreme Court Opinion

In a lengthy description of the rights women had at the time of the nation’s founding, Justice Thomas, who authored the Court’s opinion, stated:

Stare decisis matters, and our well-reasoned opinion in New York State Rifle and Pistol Association Inc. v. Bruen clearly foreshadowed and necessarily dictates the result in the case before us today.

As with all non-Whites, including the Negro, as they were referred to at the time, women had very little rights at the time of our great nation’s founding, if any.

Justice Thomas is correct. For example, no one had the right to vote in 1776 America except white, male landowners. Women could not vote. Justice Thomas himself would not have had the right to vote.

Once married, women were considered property for most purposes – they were not permitted to own land, sue, control their own money, or sign legal documents. As the Supreme Court explains:

There certainly was no right to protection from so-called “domestic abuse,” counsel for the appellant has cited no evidence whatsoever in the record that would support such an assertion, and we are unaware of any statute or case law that would have conferred such an extraordinary right upon the women of America in the 1700s.

The dissenters would “raise the alarm,” as they put it, claiming that we are “opening the floodgates” on a “slippery slope” that will result in future cases denying Second Amendment rights or other constitutional rights to women and non-whites because they did not have these rights at the time of the founding.

The dissenters’ wild fears are unfounded, however, because this is not that case, and our job today is not to provide an illegal “advisory opinion,” nor speculate about what “might” happen in future cases.

Of course, all this is satire. The case has not been decided, although it has been argued, and we are now eagerly awaiting the Court’s explanation for why they uphold the gun law in Rahimi despite their analysis in Bruen.

I don’t believe the US Supreme Court is going to declare that domestic violence protection orders are an unconstitutional violation of defendants’ Second Amendment Rights.

Nevertheless, the only logical conclusion, if you analyze constitutional issues using “Originalism” as expressed by the US Supreme Court in Bruen, is that women and non-whites have no constitutional rights, and the US Supreme Court painted itself into an unfortunate ideological corner in last year’s Bruen case.

The Holding in New York State Rifle and Pistol Association Inc. v. Bruen

In Bruen, decided by the US Supreme Court on June 23, 2022, the US Supreme Court struck down New York State’s concealed carry law, which denied a concealed carry permit to any person who could not demonstrate “good moral character” and “proper cause,” which New York courts defined as a “special need for self-protection distinguishable from that of the general community.”

NY’s restrictions were probably overly restrictive – I agree with the Court about that. You either have a constitutional right to carry a gun, or you don’t, and, if you do, it can’t be restricted to a few people the local government deems worthy.

The Court’s opinion, however, took an unnecessarily ideological approach to reaching that result, and outlined a new, complex procedure for determining whether a gun law is unconstitutional: would it have been unconstitutional in 1776?

Across the county, defendants have been challenging just about every gun law in every state because the US Supreme Court has essentially said, if the right didn’t exist at the time of the founding, it doesn’t exist now.

Did the Founders intend for women to have a constitutional right to carry a firearm?

Was there a procedure in place in 1776 to forcibly take guns away from a person diagnosed with a mental illness? What was the standard procedure at the time if a Black person was seen openly carrying a firearm?

Every judge in every court across the country must now engage in a lengthy and detailed analysis of whether a particular constitutional right existed throughout history before determining whether it is a right that was protected in 1776 and therefore a right that exists today.

And so, it may have been inevitable that a case like Rahimi’s would wind up in front of the Supreme Court. If they had rejected the case, the law of the land in the Fifth Circuit would now be that domestic violence orders are unconstitutional if they prevent the subject from possessing guns, and I don’t think this is what the Court intended.

Now, they can explain to us how that is not the logical result of their analysis in Bruen.

State and Federal Firearms Lawyer in Charleston, SC

Grant B. Smaldone is a state and federal criminal defense attorney in Charleston, SC who focuses his practice on criminal defense cases including firearms charges in all courts.

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