Opinion: Why American women of childbearing age now have another Supreme Court case to watch

Opinion by Jill Filipovic

(CNN) — On Tuesday, the US Supreme Court heard arguments on a pivotal gun case over a federal law that bars people subject to certain domestic violence restraining orders from possessing firearms.

It seems like a pretty common-sense regulation: People who courts have deemed violent threats to their family members, significant others or exes shouldn’t be able to get their hands on deadly weapons. But the staunchly pro-gun-rights conservative justices of the Supreme Court, now in a majority, have the power to overturn this law and put women’s lives at even greater risk.  Abuse is always dangerous, but when an abuser has access to a gun, his victim is five times more likely to be murdered by him.

The story at the heart of this case is an illustrative one. The man who brought it is Zackey Rahimi, a Texan who violently assaulted his then-girlfriend in a parking lot and then shot at a bystander who witnessed the attack. The woman he attacked got a civil protective order against him, which he violated; he also threatened another woman with a gun that the protective order barred him from having and was then involved in five more shootings.

Rahimi’s record makes clear that he is not someone any reasonable person would say should own a firearm. When he was caught with a rifle and a pistol in his home, he was charged with violating the federal law that bars those under domestic abuse orders from owning firearms.

Rahimi’s lawyers argued that that law violated his Second Amendment rights; the courts generally disagreed. But last year, the Supreme Court issued a ruling in New York State Rifle & Pistol Association v. Bruen, and changed the game. The Bruen ruling essentially held that, for a gun restriction to be valid, the justification can’t simply be safety or the public good, but a clear “historical tradition” of that kind of regulation.

With this new standard, the US Fifth Circuit Court of Appeals sided with Rahimi, holding that the federal government hadn’t proven that there is a historical tradition of withholding firearms from domestic abusers. And now, the case is in the hands of the same Supreme Court that decided Bruen.

It’s worth mentioning that there isn’t much of a historical tradition in the US of doing anything about domestic abuse. American courts in the 1800s upheld the right of a husband to beat his wife, as long as he didn’t do too much damage. Even after it was illegal to beat your wife, the law was poorly enforced, and domestic violence was often considered a personal or family problem, not a real crime.

The Violence Against Women Act wasn’t implemented until 1994, and it took into that same decade for all 50 states to outlaw marital rape. It wasn’t until 1990 that judges were required to take spousal abuse into account when determining child custody arrangements. It wasn’t until the 1960s that a woman could get a divorce in New York on the grounds that her husband was beating her (and even then, she had to prove a minimum number of beatings to be permitted to leave him).

In other words, the federal government is being asked to prove that a law banning accused domestic abusers from having guns is valid because there’s a historical tradition of banning domestic abusers from having guns –— in a country that has only very recently even thought about domestic abuse as a problem.

Rahimi’s lawyers argued as much: “Despite casting an incredibly broad net, the Government has yet to find even a single American jurisdiction that adopted a similar ban while the founding generation walked the earth,” they wrote in their filings.

The government argued instead that the law should turn on the question of dangerousness: that there is a robust history of US removing firearms from dangerous individuals, and a law barring people with domestic violence retraining orders from possessing guns follows that tradition. This argument has the dual benefit of being both clearly true and clearly sensible: If you can’t or won’t prevent people who are a danger to society and those around them from having guns, you’re closer to a failed state than a nation that protects individual rights.

But some of the more conservative justices had questions. Justice Clarence Thomas seemed troubled by Solicitor General Elizabeth Prelogar’s argument that the law can restrict gun ownership from those who are not law-abiding and responsible, asking her to clarify what she meant –— suggesting, perhaps, that there may be a justification for restricting gun ownership among people deemed dangerous, but not from those who are simply irresponsible citizens.

In the government’s filings, they argued that “during the Revolutionary War, the Continental Congress recommended, and many States adopted, laws disarming loyalists. States in the 19th century disarmed minors, intoxicated persons, and vagrants. And Congress in the 20th century disarmed felons and persons with mental illnesses.” That, they said, amounted to “the same enduring principle: Legislatures may disarm those who are not law-abiding, responsible citizens.”

Before the Court, Prelogar continued with that line, arguing that there is a long history of restricting gun ownership from people who have proven to be dangerous or irresponsible citizens and that “history and tradition show that applies to those whose possession of firearms would pose an unusual danger beyond the ordinary citizen with respect to harm to themselves or harm to others.”

The dangerousness argument, at least, seemed to resonate with some of the judges. “Just to be clear,” Justice John Roberts asked Prelogar, “your argument today is that [the Second Amendment] doesn’t apply to people who present the threat of dangerousness, whether you want to characterize them as responsible or irresponsible, whatever the test that you’re asking us to adopt turns on dangerousness.” Prelogar confirmed, adding that those who are dangerous are by definition also not responsible.

For his part, Rahimi’s lawyer was hesitant to describe his client, the perpetrator of multiple shootings and an attack on his former girlfriend, as “dangerous.” In a stunning exchange, Roberts asked Rahimi’s lawyer, J. Matthew Wright, if he agreed his client was dangerous. “Your Honor, I would want to know what ‘dangerous person’ means,” Wright responded, to which Roberts said, “Well, it means someone who’s shooting, you know, at people. That’s a good start.” Wright responded with, “that’s fair.” Still, his position –— that Bruen requires an analogous law, not simply a comparable principle — is the one favored by the most extreme gun advocates.

The government’s dangerousness test, though, does give the Court a fairly straightforward way to uphold their frankly atrocious and dangerous ruling in Bruen, while not handing accused domestic abusers deadly weapons: They can maintain the fiction that history must dictate the legal present, and also hold that America has a long history of keeping certain deemed-dangerous groups from owning firearms. That will help the government in this particular case. But it may not do all that much to curb gun violence more broadly.

That said, though, upholding the law preventing those with domestic violence restraining orders from gun ownership is crucial to saving lives, given the fact that the evidence is stunningly clear that domestic violence plus guns equals extreme life-threatening danger, mostly for women.

More than half of all abuse victims killed by their abusers involve a firearm. And America’s gun laws are to blame. While women everywhere experience abuse, American women are 21 times more likely to be murdered by gun than women in other wealthy nations. And as rates of gun ownership have risen, so too have the rates of women killed by guns – women who are usually killed by men wielding those guns.

Among men who have been convicted of intimate partner violence, 1 in 8 say they have used a gun to threaten a partner. One 2018 assessment of the data found that nearly 1 million women say they have been shot or shot at by an abusive partner, and close to 4.5 million have been threatened by an abuser with a gun.

Among pregnant women, trauma is the leading non-pregnancy-related cause of death, with one study finding that nearly a quarter of maternal deaths were due to gunshot wounds, and as many as 57% may be due to homicide. Nor do these acts of intimate partner violence always stay between two people: One study found that, between 2014 and 2019, 68% of mass shootings were perpetrated by men who had histories of domestic violence or who killed family members or partners.

There is one big problem with the law restricting gun ownership by people with domestic violence restraining orders: It doesn’t go far enough.

Women are still routinely threatened, shot, and killed by men they had restraining orders against. Many judges do not order people with restraining orders against them to surrender their guns, and the law is often under-enforced.

America is already an exceptionally dangerous place, with our lax gun laws making our gun homicide rates astronomically higher than those of our economic peers. Getting rid of the most basic restriction — a law that says that a man who violently abuses his partner shouldn’t have a gun — wouldn’t be a win for gun rights or individual liberties. It would be a loss: For women, for public safety, and for common sense.

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