A Tradition of Oversight: Domestic Violence and Firearm Regulation in the Wake of United States v. Rahimi

Survivors of domestic violence find themselves trapped in the painful paradox of experiencing imminent danger in the very places that should offer safety. Legal safeguards, such as court-issued restraining orders, aim to offer protection, yet survivors remain vulnerable—an especially lethal reality when domestic abusers have access to firearms. In United States v. Rahimi (2023), the U.S. Supreme Court examined the contentious intersection between the danger to public safety posed by intimate partner violence and one’s Second Amendment rights. Examining the constitutionality of 18 U.S.C. § 922(g)(8)—a provision of the Gun Control Act that restricts firearm possession by individuals under domestic violence protective orders—requires balancing historical interpretations of firearm laws with the contemporary realities of domestic violence, an issue far more visible and recognized today than in the past. [1]

On June 21st, 2024, the Supreme Court ruled against Zackey Rahimi’s right to bear arms within the historical framework set by New York State Rifle & Pistol Association, Inc. v. Bruen (2022), which established a standard for evaluating firearm regulation cases by grounding them in historical tradition. [2] While the Supreme Court’s ruling in Rahimi rightfully upholds the constitutionality of federal gun regulations for convicted domestic abusers, the decision demonstrates an overreliance on historical precedent created by Bruen that risks our legal system overlooking the increasingly fatal consequences of intimate partner violence. Cases involving domestic violence and firearms, like Rahimi, demand a context-oriented legal framework capable of considering the issue’s evolving nature as a public health crisis. [3]

Domestic violence, which accounts for nearly half of all femicides in the United States, presents a critical public health threat, exacerbated by inconsistent enforcement of legal protections. Historically overlooked within the legal system, domestic and intimate partner violence continues to be inadequately addressed by existing legal protections, despite the dangerous consequences. [4] Beyond the compromised safety of the immediate victim, the risk of harm extends beyond the initial relationship and into their surrounding support networks. The capacity of such violence to inflict social, psychological, physical, and fatal damage is magnified by the possession of firearms, which actively threatens public safety. With more than half of deaths by domestic violence today involving firearms, this heightened lethality constitutes a crisis perpetuated by a lack of consistent firearm regulations for domestic abusers. [5]

Federal law, as outlined in the U.S. Code, already prohibits domestic violence offenders from obtaining firearms. 18 U.S.C. § 922(g)(8) restricts individuals who pose “a credible threat to the physical safety” of intimate partners and children from owning firearms. However, gaps in the law persist—for instance, individuals convicted of stalking, a precursor to femicide in 76% of cases, can still legally purchase and possess firearms. [5];[6] Inconsistent enforcement of the statute at both state and federal levels leaves victims increasingly vulnerable to the growing number of domestic violence-related fatalities. [7]

In United States v. Rahimi, the U.S. Supreme Court reviewed the Fifth Circuit Court of Appeals’ decision to overturn Zackey Rahimi’s conviction for possessing firearms while subject to a domestic violence protective order. Following the U.S. Supreme Court’s adoption of the Bruen test as the standard for determining cases involving the Second Amendment, the Court reversed the Fifth Circuit’s ruling of the case, which had cited the test’s rigid adherence to historical tradition to justify the reversal of Rahimi's indictment. [8] However, the Court rejected the Fifth Circuit’s interpretation of historical tradition and application of the test. The Bruen test emerged from the ruling in NYSRPA v. Bruen, in which the Court rejected the previous two-step approach to firearm regulation established in District of Columbia v. Heller (2002)—which considered modern public safety—and replaced it with a test centered around historical analogy. The previous approach was rejected as it had imposed on Second Amendment rights by weighing the government’s interests against individual freedoms. The resultant Bruen test consists of a new two-step approach: whether the activity in question is protected by the right to bear arms and, if so, whether the activity’s regulation aligns with a historical tradition of U.S. law. [9];[10] This tradition is determined specifically with reference to the Founding and Reconstruction Eras—corresponding, respectively, to the adoption of the Second Amendment and ratification of the Fourteenth Amendment.

The U.S. Supreme Court ruled that the justification of disarming Rahimi aligns with the standard of “our Nation's historical tradition of firearm regulation.” [11] In an 8-1 ruling, the Court upheld the regulation of Rahimi’s conduct as constitutional, asserting that his actions posed a legitimate threat to the “physical safety of another." [12] The majority of the concurring opinions, as reflected in Chief Justice John Roberts’ delivery, held that their “analysis starts and stops with Section 922(g)(8)(C)(i).” [13] The Supreme Court appropriately maintained Rahimi's conviction, but its interpretation and application of the Bruen framework—and its broader implications for addressing public safety concerns—ultimately undermine efforts to regulate firearms effectively.

In Rahimi, the U.S. Supreme Court faced the challenge of evaluating firearm regulation within the framework of a broader historical tradition, despite the absence of a direct historical case. In the absence of a direct historical precedent, the Court had to turn to historical analogies to address this modern legal issue. [14] Therefore, the Bruen test, designed to compare modern firearm-related cases to their historical counterparts, encounters significant challenges when applied to a case that focuses on contemporary issues like Rahimi. The concurring liberal opinions of Rahimi adopted a more skeptical view of the Bruen test. They express concern about the Court's ability to address public safety issues consistently and effectively under what Justice Sonia Sotomayor described as a “myopic focus on history and tradition.” [15] The Bruen test cannot account for issues—and by extension, the individuals—that history and law overlooked and failed to address. [16] Confronting an issue that disproportionately affects women, particularly Black and Indigenous women who face higher risks of fatality due to domestic violence, within a legal tradition that has historically undervalued women's lives exposes a contradiction that undermines the pursuit of justice. [17]

Addressing public safety—and in turn, public health—in a post-Bruen legal landscape requires examining the test's ability to consider more than just historical precedent. The U.S. Supreme Court’s shift in jurisprudence, marked by the adoption of the Bruen test, clearly limits the Court’s ability to address evolving contemporary concerns. This originalist-by-analogy method, an interpretive framework that aligns modern legal issues with historical counterparts from an era of an amendment’s drafting, must inevitably account for both contemporary and empirical evidence. [18] While the Bruen test favors this approach, to be effective, standards for determining the constitutionality of firearm regulations also must consider how modern laws function in practice. In turn, statistical evidence reflects how current regulations function to serve public safety. However, the Bruen test fails to incorporate or consider this aspect of the law, strictly situating modern concerns in terms of historical precedent. [19] When the interpretation of the Constitution relies both rigidly and heavily on history, as seen in the originalist-by-analogy method, it risks stagnation. In taking this approach, the Court limits itself by anchoring its legal interpretations to societal norms and conditions of centuries past. By treating history as a fixed criterion for determining the Court’s address of evolving issues of today, constitutional law becomes a relic.

How can the Court expand its interpretative scope to move away from relying on historical tradition? This shift requires incorporating statistical evidence that not only connects the present to the past but also underscores historical shortcomings in addressing the issue at hand. To look towards the present is to properly acknowledge the current circumstances and their implications for the future. When it comes to societal safety, a preventative, evidence-based approach—focused on long-term harm reduction—is the only one that truly prioritizes the protection of those whose lives are at risk from domestic violence. The U.S. legal system’s focus on defending the safety of survivors can take various forms—perhaps in the universalization of background checks as a data-driven regulation to firearm access. However, such changes that reflect modern dangers are inconsistent with an originalist-by-analogy framework. Establishing a new paradigm that prioritizes contemporary realities is not only warranted but urgently required by the evolving social and public health landscapes of today.

The Framers of the U.S. Constitution could not have anticipated the modern impact of firearms or the devastating toll domestic violence continues to take on lives in our country today. In a case that so sharply brings into focus the deadly combination of domestic violence and firearm access, historical precedent alone cannot adequately inform the present. The question the U.S. Supreme Court now faces, in a post-Bruen landscape, is how sustainable a fixation on history can be in addressing pervasive threats to public safety and whether such an approach is ultimately reductive. Considering the consequences of a domestic abuser’s access to firearms within a historical tradition that largely dismissed domestic violence hinders the capacity of the Court to adapt its judicial decision-making to meet reality. Although disarmament to address gender-based violence lacks the extensive legal legacy associated with broader concepts of safety in the United States, modern realities of domestic violence demand an approach informed by contemporary context. Moving away from an originalist tradition into an approach that considers empirical evidence allows the U.S. Supreme Court to protect those of the future as opposed to legal norms of the past.

Edited by Jayin Sihm

[1] “United States v. Rahimi,” American Civil Liberties Union, online at https://www.aclu.org/cases/united-states-v-rahimi

[2] Clara Fong, Kelly Percival, and Thomas Wolf, “Judges Find Supreme Court’s Bruen Test Unworkable,” Brennan Center for Justice, June 26th, 2023, online at https://www.brennancenter.org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable

[3] “Domestic Violence and Firearms,” The Educational Fund to Stop Gun Violence, online at https://efsgv.org/learn/type-of-gun-violence/domestic-violence-and-firearms/

[4] “Domestic Violence and Firearms.”

[5] “Domestic Violence and Firearms.”

[6] 18 U.S. Code § 922 (1994)

[7] “Domestic Violence and Firearms.”

[8] United States v. Rahimi 602 U.S. ___ (2024)

[9] Bianca Corgan, “Conundrums of Constraint: United States v. Rahimi and the Future of the Bruen Test,” Harvard Law Review, July 21st, 2024 online at https://harvardlawreview.org/blog/2024/07/conundrums-of-constraint-united-states-v-rahimi-and-the-future-of-the-bruen-test/

[10] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ___ (2022).

[11] United States v. Rahimi 602 U.S. ___ (2024)

[12] United States v. Rahimi 602 U.S. ___ (2024)

[13] United States v. Rahimi 602 U.S. ___ (2024)

[14] United States v. Rahimi 602 U.S. ___ (2024)

[15] United States v. Rahimi 602 U.S. ___ (2024)

[16] Joseph Blocher and Eric Ruben, “Originalism-by-Analogy and Second Amendment Adjudication,” Yale Law Review 133, no. 1, October 2023, online at https://www.yalelawjournal.org/article/originalism-by-analogy-and-second-amendment-adjudication

[17] “Domestic Violence and Firearms.”

[18] Blocher and Ruben, “Originalism-by-Analogy and Second Amendment Adjudication.”

[19] Blocher and Ruben, “Originalism-by-Analogy and Second Amendment Adjudication.”