In the late 18th century, when the constitution was ratified, men’s abuse of women was penalized by neither custom nor by the law. Men were allowed to beat their wives, their children and any women they held authority over in their personal lives: such beatings were not generally illegal, nor especially frowned upon, but understood as a private prerogative that all men held over the women in their lives.
Many men still treat such beatings this way: as an entitlement of manhood. The supreme court’s 2022 Bruen decision, authored by Clarence Thomas – a ruling that drastically expanded gun rights and restricted government ability to regulate guns to a sphere no greater than that which was practiced at the time of the constitution’s ratification – would have largely agreed with them. At least, until this Friday.
In the wake of the 2022 ruling, lower courts have ruled that, under Bruen, no gun restriction is permissible unless it has an exact historical analogue from the founding era. In the fifth circuit, this interpretation would have restored gun rights to Zackey Rahimi, a brutal and prolific domestic abuser, according to police and court records, who challenged the federal government’s right to take his guns away. In an 8-1 ruling on Friday, the supreme court narrowed its Bruen decision to keep guns out of Rahimi’s hands.
The decision is likely to save lives. Two-thirds of women who are murdered by their current or former intimate partners are killed with a gun; a woman whose abuser has access to a gun is five times more likely to die at his hands. That a circuit court would have restored gun rights to men who are subject to domestic violence restraining orders reflects just how extreme the federal judiciary’s gun jurisprudence has become – and, as in their abortion jurisprudence, how casual and careless many federal judges are with women’s lives.
But the supreme court’s decision in United States v Rahimi also reveals the logical inconsistencies in the foundation of so-called “originalist” legal interpretation, the unworkability of the court’s insistence on historical precedent for every government regulation and the growing divisions among the conservative justices about just what “history and tradition” should mean.
The court’s ultimate ruling was lopsided, with eight of the justices joining John Roberts’s majority opinion and only Thomas, Bruen’s original author, dissenting. But the decision in Rahimi seems to have been an unusually contentious one, animating and dividing the court. In addition to Roberts’s majority opinion and Thomas’s dissent, Rahimi yielded no fewer than five concurrences – with Barrett, Gorsuch and Kavanaugh each chiming in to explain their vote against abusers’ rights individually, and Jackson and Sotomayor also writing independently to express their concern about Bruen’s methodology.
Roberts stressed that the historical test in Bruen was loose enough to allow for some gun restrictions, including those on domestic abusers. It was a mistake, he said, to read Bruen “to require a ‘historical twin’ rather than a ‘historical analogue’.” His reasoning was echoed by Barrett, who advocated for a historical test of what she called “original contours”, one that “looks at historical gun regulations to identify the contours of the [second amendment] right”.
Gorsuch, meanwhile, was much more sympathetic to the Thomas dissent, suggesting that an abuser like Rahimi might have prevailed in securing access to guns again if he had challenged the federal law on narrower grounds. Kavanaugh, as usual, said nothing of importance. Only Thomas insisted that Bruen’s originalism created a demand for an exact historical precedent for government regulation; he would have rearmed Rahimi, the man who was only exercising what, in the late 18th century, would have been understood as his private right.
The case is another signal of infighting among the court’s conservatives: they cannot decide what they think “originalism” demands, or what they mean when they say “history and tradition”. The court’s appeal to history has always been selective and pretextual, deployed with little consistency, intellectual honesty or concern for historical accuracy, in order to achieve the preferred policy outcomes of Republican justices.
That so many of the justices who voted for Thomas’s interpretation of Bruen just two years ago voted against that same interpretation today just goes to show how hollow an approach “originalism” really is – it is a doctrine that can expand or contract based on the justices’ political preferences in whichever case happens to be before them. Similarly, that this “originalism” remains the guiding force of a majority of the justices goes to show how unaccountable the supreme court’s vast policymaking power has become: they have so much control over the law, and so much indifference to precedent and consistency in how they wield it, that they can call upon virtually any interpretive scheme they choose, label it “originalism”, and claim to have exercised a principled interpretive strategy.
Perhaps the justices don’t care about being consistent: perhaps the capaciousness and mutability of “originalism” is precisely its appeal: it works well as a cover for their actual project, which is the exercise of raw power. But it has never been a workable or acceptable reality that “originalism” and its selective, often fact-free fantasies of the past, has been called upon to determine policy outcomes in the present.
The lives of women who have survived domestic abuse should never have depended on what nine unaccountable jurists imagine the founding era to have been like; that they did is an insult to citizenship itself.
Moira Donegan is a Guardian US columnist
