With a significant majority, but in a narrowly written opinion, the US Supreme Court held on Friday, 21^st June 2024, that the Second Amendment of the Constitution does not prohibit disarming perpetrators of intimate partner violence. The 8-1 decision in US v Rahimi upheld the constitutionality of a federal law—§922(g)(8)—that makes it unlawful for individuals subject to family violence protective orders to possess firearms.

Rahimi also provided the Court with the opportunity to clarify the test it created in 2022 in NY State Rifle and Pistol Association v Bruen, under which only gun control laws that are ‘consistent with the Nation’s historical tradition of firearm regulation’ are constitutional (p 7).

Rahimi rose to the Supreme Court after a federal appellate court in Texas invalidated §922(g)(8) because it could not find a sufficiently analogous historical statute. The lower court, misapplying Bruen, searched in vain for a ‘historical twin’ to the modern-day domestic violence protective order firearm regulation. Their failure was unsurprising, given that when the Second Amendment was ratified in 1791, women’s lives bore little resemblance to those they lead today. Women did not have the right to vote, could not work outside the home, and under the doctrine of ‘coverture’ were the property of their husbands. Spousal abuse was both commonplace and condoned, and the idea of a family violence protective order would have been laughable.

The majority opinion in Rahimi was a reminder to U.S. courts that contemporary gun regulations need only be ‘relevantly similar’ to those that existed in the past. Any other analysis, Chief Justice John Roberts wrote, would ‘suggest a law trapped in amber’ (p 7). The Second Amendment, he added, must permit ‘more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers’ (p 7). Seven justices agreed, finding that eighteenth-century laws restricting access to firearms to individuals who posed credible threats to others were sufficiently analogous to §922(g)(8).

The Court’s decision was appropriately lauded by domestic violence advocates, and while survivors can breathe a sigh of relief, this victory is likely an isolated one.

Rahimi’s majority opinion is narrow. ‘We conclude only this’, it reads, ‘[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment’ (p 17). The history-based Bruen test remains good law and Justice Clarence Thomas’ dissent—along with separate concurring opinions from Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—make unambiguously clear that originalism still reigns at the Supreme Court.

This Court will continue to look to the past to analyze present day laws, which will almost certainly be detrimental to future attempts to regulate firearms, including those that aim to protect survivors of domestic violence. In fact, all five conservative justices strongly intimated that Rahimi would be an outlier. Justice Gorsuch’s concurring opinion even catalogues legal issues unresolved by Rahimi − for example, the constitutionality of imposing permanent bars (§922(g)(8)’s prohibition is only valid as long as the protective order is in place) and of restricting an abuser who might need ‘his arms for self-defense’ (p 6).

‘Harder level-of-generality problems’, wrote Justice Barrett, ‘can await another day’ (p 5). Although crisis has been averted by Rahimi’s self-described ‘common sense’ decision, the new litigation that she and her colleagues appear to invite is undoubtedly forthcoming and is likely to put the lives of survivors at risk.