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This Isn’t Your (Founding) Fathers’ Originalism

How a Supreme Court ruling gave a domestic abuser his guns back.
February 21, 2023
This Isn’t Your (Founding) Fathers’ Originalism
Gun rights activists at the U.S. Supreme Court (Photo by Mark Wilson/Getty Images)

In Texas, Louisiana, and Mississippi, the federal law preventing domestic abusers from possessing firearms is now void. That’s thanks to a recent ruling by the Fifth Circuit Court of Appeals in United States v. Rahimi, in which the court clearly indicated discomfort with the conclusion the Supreme Court forced it to reach.

A court order barred Zackey Rahimi from stalking a former girlfriend and from possessing a firearm. But Rahimi demonstrated spectacularly that he still had a gun. Within a two-month period, he fired multiple shots into the home of a narcotics customer, shot at the driver of a car involved in an accident with his car, returned after leaving the accident scene to fire more shots at the driver’s car, shot at a Texas constable’s vehicle, and fired multiple shots in the air when a friend’s credit card was declined at a restaurant. After a trial court rejected Rahimi’s claim that the Constitution entitled him to keep and bear his gun, he pleaded guilty to violating 18 U.S.C. § 922, which makes it illegal for those under court orders like his to possess any firearm or ammunition.

Even if “prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” the Fifth Circuit ruled earlier this month, the statute violated the Second Amendment. The court reached—or was forced to reach—that conclusion in a troubling way.

For most of our nation’s history, the victims of domestic violence were entitled to little legal protection. In 1874, the North Carolina Supreme Court affirmed the assault and battery conviction and $10 fine of Richard Oliver after he came home drunk, criticized the bacon and coffee, cut two four-foot switches, and whipped his wife. The court wrote: “We may assume that the old doctrine, that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not the law in North Carolina.” But it added: “If no permanent injury has been inflicted, nor malice, cruelty, nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forgive and forget.”

In the last two decades of the twentieth century, public officials became less inclined to “draw the curtain.” In 1994, bipartisan majorities in both houses of Congress passed the Violent Crime Control and Law Enforcement Act, which contained the language the Fifth Circuit struck down. The court noted that this law “embodies salutary policy goals meant to protect vulnerable people in our society,” but it said a recent Supreme Court decision tied its hands—New York State Rifle & Pistol Association v. Bruen, which the Court handed down one day before it overruled Roe v. Wade.

Before Bruen, eleven federal courts of appeals had agreed on a standard for judging whether firearms restrictions violate the Second Amendment. This standard would have allowed judges to take account of the interest of domestic-violence victims in not being shot. But Justice Thomas’s opinion for the Court forbade “judge-empowering interest-balancing.” It declared that judges may consider only the Second Amendment’s text and its history.

To justify a firearms regulation, the government now must prove that this regulation “is consistent with the Nation’s historical tradition of firearm regulation.” And to make this showing, the government must point to analogous regulations that were in place before 1900.

The Court’s “scavenger hunt” standard seems likely to mark the end of many firearms regulations. In June, a special session of the New York legislature enacted a new firearms law to replace the one the Supreme Court struck down in Bruen. But a federal judge provisionally held twelve provisions of this new law unconstitutional, including its prohibitions of carrying concealed handguns at airports, zoos, parks, bars, buses, churches, theaters, and political demonstrations.

Another federal judge wrote of a federal statute that outlaws the possession of a firearm with an obliterated serial number: “Certainly, the usefulness of serial numbers in solving gun crimes makes [this statute] desirable for our society.” But he then held the statute unconstitutional.

A third federal judge put the issue this way when, a few months before the Fifth Circuit ruling, he became the first to strike down the federal statute protecting the victims of domestic violence: “Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.” The judge observed that, although the “historical tradition” of disregarding domestic violence was “likely unthinkable today,” the Supreme Court had made this tradition decisive.

It’s sometimes the duty of courts to strike down salutary and well-intentioned laws that violate the Constitution, but the current Court is interpreting the Constitution in a new way. The interpretive doctrine of originalism championed by the late Justice Antonin Scalia and others emphasizes that the Constitution should be interpreted according to the “original public meaning” of its text—hence the term “originalism.” But Bruen identifies no prevailing public understanding of the Second Amendment’s text at the time of its enactment. Instead, it focuses on whether a particular sort of firearms regulation was in place at that time or shortly thereafter, and it treats the failure of early legislatures to act as determinative of the amendment’s meaning. In fact, the failure of a legislature to approve a regulation provides almost no evidence that this regulation would be unconstitutional or that anyone thought it would be. If early American legislatures didn’t require background checks or outlaw gun possession by the mentally ill, those omissions neither establish nor indicate that these regulations violate the Second Amendment. It’s far more likely that legislators simply saw no need for them or saw no way to implement them. The Court appears to have missed the distinction between declining to act and lacking the power to do so.

The Supreme Court and the Fifth Circuit have construed the Second Amendment to require continued adherence to a long tradition of legislative inaction, however shameful this tradition and however determined to end it the people’s elected representatives eventually became.

Attorney General Merrick Garland has promised to seek review of the Fifth Circuit ruling. The Justice Department may soon give the Court an opportunity to establish a more historically justified and less peculiar interpretive standard.

Albert W. Alschuler

Albert W. Alschuler is the Julius Kreeger professor emeritus at The University of Chicago Law School and the author of Twilight-Zone Originalism: The Supreme Court’s Peculiar Reasoning in New York State Pistol & Rifle Association v. Bruen, available at