As the United States continues to grapple with the meaning and interpretation of its Constitution, issues relating to the Second Amendment have become increasingly contentious. While some believe that gun ownership provides security and safety to law-abiding citizens, others beg to differ, emphasizing the risks of widespread access and increasing trends in firearm misuse. This debate regarding gun ownership and its relation to safety therefore highlights the sharp contrasts between partisans over the role of guns in society. The same originalist approach has been employed for centuries by the U.S. Supreme Court, which can be seen through the prioritization of individuals' Constitutional rights over certain protectionist policies. Consequently, in 2022, the Supreme Court set a dangerous precedent in New York State Rifle & Pistol Association Inc. v. Bruen when it uncovered how New York’s proper-cause requirement prevented law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public. The Supreme Court, already experiencing the effects of that ruling, is now confronted with the question of whether or not 18 U.S.C. § 922(g)(8)—prohibiting individuals under domestic violence restraining orders from possessing firearms—infringes upon the Second Amendment.

The Constitutional right to bear arms, as interpreted through New York State Rifle & Pistol Association Inc. v. Bruen (2022), maintained that New York's proper cause requirement violated the Second Amendment. Under the mandate, N.Y. Penal Law Ann. §400.00(2)(f), New York had required an individual to show a “special need for self-protection” to receive an unrestricted license to carry a concealed firearm in public. After their applications for concealed-carry were rejected based on a failure to show “proper cause,” N.Y. citizens Robert Nash and Brandon Koch challenged the law, saying their Second and Fourteenth Amendment rights were violated. A district court dismissed their claims, a decision which was upheld by the U.S. Court of Appeals for the Second Circuit.

The Supreme Court ultimately drew upon the originalism framework to argue that the right to carry a firearm in public for self-defense is deeply rooted in history and, similarly, that gun restrictions are constitutional only if there is a tradition of such objective regulation in U.S. history. For example, objective background checks, firearms training, a check of mental health records, and fingerprinting are permissible. Justice Stephen Breyer, in his dissenting opinion, emphasized the necessity for states to implement regulations aimed at reducing fatalities caused by gun violence. He argued that the Court's decision “severely burdens the States’” endeavors in this regard, citing data from the amicus brief from the Educational Fund to Stop Gun Violence. The brief highlighted a correlation: states with higher rates of gun ownership tend to have higher rates of gun-related deaths, while states with lower gun ownership rates experience fewer such fatalities. Maintaining his strong stance of strict constructionism, Justice Samuel Alito similarly argues that the effect of guns on American society is irrelevant to the issue of interpreting the Second Amendment. Ultimately, in its decision, the Court upheld the century-old precedent that law-abiding citizens with ordinary self-defense needs cannot be prevented from exercising their Second Amendment right for failing to demonstrate “proper cause” and “good moral character,” even if they pose a clear threat. 

Once again, the Supreme Court judges will be examining the Second Amendment through a new lens. Specifically, the upcoming case of United States v. Rahimi (2023) will focus on whether individuals accused of domestic violence have a right to carry firearms. Between Dec. 2020 and Jan. 2021, Zackey Rahimi engaged in a series of violent acts in Arlington, Texas, which included multiple shootings and a hit-and-run. Despite being placed under a civil protective order due to an alleged assault on his ex-girlfriend (which explicitly prohibited him from having firearms), police discovered a rifle and a pistol in his home during a search. Consequently, Rahimi was charged under federal law 18 U.S.C. § 922(g)(8), effective 1994, which prohibits individuals under a domestic violence restraining order from possessing firearms.

Although Rahimi tried to dismiss the charges on constitutional grounds, his plea was denied based on the precedent set by United States v. McGinnis (2020), which upheld 18 U.S.C. § 922(g)(8). Despite pleading guilty, Rahimi continued to contest the constitutionality of the law on appeal. During this time, the Supreme Court ruled in NYSRPA, Inc. v. Bruen (2022). Rahimi argued that the decision of Bruen overruled that of McGinnis, rendering 18 U.S.C. § 922(g)(8) unconstitutional. There is, however, little dispute over the revocation of gun rights for felons. The Biden administration has said that history and tradition establish that the Second Amendment allows Congress to disarm people who are not "law-abiding, responsible citizens." That being said, 18 U.S.C. § 922(g)(8) was aimed at people like Rahimi, whom courts have considered dangerous despite lacking convictions for the crimes that would bar them from gun ownership.

Rahimi’s lawyer, federal public defender Matthew Wright, asserts that the system lacks enough safeguards to ensure that only people who are genuine threats are disarmed. Under past precedent, the constitutional approach to domestic abusers has been to “prosecute and jail people who commit violence” rather than taking a more preemptive approach, as Wright describes. Academic research indicates that domestic violence protection orders do not effectively decrease the occurrences of domestic gun-related homicides. Individuals deemed genuinely dangerous, like Rahimi, frequently disregard such orders and acquire firearms despite their prohibited status. However, the Biden administration’s lawyer, Solicitor General Elizabeth Prelogar, disagrees. She contends that under the court's most recent decisions, including last year's, Congress has the authority to disarm those who are not law-abiding, responsible citizens, such as Rahimi. The justices appeared inclined to agree, indicating a belief that those deemed dangerous to society should be disarmed, after raising concerns with Prelogar's suggestion that individuals considered irresponsible would not be covered by the Second Amendment.

During his Senate confirmation hearings in 2005, then-Judge John Roberts was questioned about the legal doctrine of stare decisis, to which he responded: “Precedent plays an important role in promoting stability and evenhandedness.” He further elaborated that in deliberating whether to overturn a significant ruling, justices must take into account numerous factors, going on to mention how “the considerations about the Court’s legitimacy are critically important.” Years later, following a series of controversial rulings that overturned long-standing precedents on issues like abortion rights, affirmative action, and the separation between church and state, Roberts appeared to adopt a somewhat altered stance. He argued that although the Supreme Court’s decisions have always been subject to intense criticism, often by its own members, disagreement with an opinion is not a basis for questioning the Court's legitimacy.  

The Court has traditionally interpreted the specific provisions of the Second Amendment in light of the historical context in which they were drafted. Consequently, the meanings of several phrases— such as "well-regulated Militia," "security," or "keep and bear Arms" — are not explicit within the Constitution. 

Even if we encounter clear-cut definitions of such words, applying these definitions to address firearms, which advance beyond what the founding fathers envisioned, only broadens the scope of ambiguity and interpretation. At first glance, relying on the status quo of the 18th century to determine gun use among domestic abusers seems questionable. In observing United States v. Rahimi (2023) alongside several other cases that touch on divergent interpretations of the Second Amendment, we see that the Supreme Court's originalist approach to constitutional interpretation in NYSPRA Inc. v. Bruen (2022) has provided more questions than answers. Arguably, rather than the "originalist" perspective adopted by Justice Alito and similar contenders (who view laws in isolation from current social movements), a more comprehensive approach would be to follow the "founders'" intent by utilizing a modern interpretation of constitutional language in light of our moral/societal norms. As such, though phrases such as "well-regulated militia” and “keep and bear Arms” are relatively vague, they purposefully do not set a specific standard. Rather, they serve to encompass acts that future generations might consider morally reprehensible. Instead of being open to diverse modes of interpretation, the Court's tendency to resort to a singular approach has resulted in the potential to overturn established precedents, whether short or long-standing. Resolving this matter is crucial to safeguarding the rights of individuals, ensuring their safety, and protecting them from persistent threats of murder, abuse, or endangerment.

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1 New York State Rifle & Pistol Association Inc. v. Bruen, No. 20-843, slip op. (2nd Cir. June 23rd, 2022) at 6

2 United States v. Rahimi, No. 21-11001 (5th Cir. 2023). https://www.oyez.org/cases/2023/22-915 
McBryde, Makennan, “SCOTUS Set a Dangerous Precedent With Bruen. A Year Later, It Can Fix Its Mistake | Opinion,” Newsweek (Nov. 14, 2023), https://www.newsweek.com/scotus-set-dangerous-precedent-bruen-year-later-it-can-fix-its-mistake-opinion-1843342

3 Quinn, Melissa, “Supreme Court Wary of Striking Down 1994 Law Protecting Domestic Violence victims in High-Stakes Gun Case,” CBS News (Nov. 7, 2023), https://www.cbsnews.com/news/supreme-court-gun-case-law-second-amendment-domestic-violence-victims/ 

4 Totenberg, Nina, “Roberts Supports Privacy, Precedent in Hearings,” NPR (Sept 14, 2005), 
https://www.npr.org/templates/story/story.php?storyId=4846589. 

5 Gerstein, Josh, “Gun Rights and Domestic Violence Collide at Supreme Court - But Justices Will Be Looking to the Past,” Politico (Nov. 7, 2023), https://www.politico.com/news/2023/11/07/supreme-court-rahimi-guns-argument-history-00125687#:~:text=Legal-,Gun%20rights%20and%20domestic%20violence%20collide%20at%20Supreme%20Court%20—%20but,the%20hands%20of%20domestic%20abusers. 

6 Slone, Kerry, “How to Handle Domestic Violence and Gun Rights,” The Wall Street Journal (Nov 6, 2023), https://www.wsj.com/articles/how-to-handle-domestic-abusers-and-guns-supreme-court-red-flag-07add6e1

7 Savage, David G., “Supreme Court sounds wary of extending gun rights to domestic abusers,” Los Angeles Times (Nov 7, 2023), https://www.latimes.com/politics/story/2023-11-07/supreme-court-hears-major-test-of-2nd-amendment-gun-rights-in-a-case-of-domestic-violence#:~:text=The%20Supreme%20Court%20on%20Tuesday,a%20domestic%20violence%20restraining%20order. 

8 Bravin, Jess, “A Skeptical Supreme Court Considers Whether Domestic Abusers Have Gun Rights,” The Wall Street Journal (Nov 7, 2023), https://www.wsj.com/us-news/law/a-skeptical-supreme-court-considers-whether-domestic-abusers-have-gun-rights-51e52b40#

9 Howe, Amy, “Court to hear major gun-rights dispute over domestic-violence restrictions.” SCOTUSBlog, (Nov 6, 2023). https://www.scotusblog.com/2023/11/court-to-hear-major-gun-rights-dispute-over-domestic-violence-restrictions/.

10 Barnes, Robert & Karlik, Michael, “Roberts says Supreme Court will reopen to public and defends legitimacy,” The Washington Post (Sept 10, 2022), https://www.washingtonpost.com/politics/2022/09/10/supreme-court-roberts-legitimacy/# 

11 Bravin, Jess, “Texas Man With History of Wantonly Firing AR-15 Could Gut Gun Laws Nationwide,” The Wall Street Journal (Nov 6, 2023), https://www.wsj.com/us-news/law/texas-man-with-history-of-wantonly-firing-ar-15-could-gut-gun-laws-nationwide-95d1c3ff