Opinion | The conservative vision of the Supreme Court that means inequality for women

The Supreme Court heard last week oral arguments in United States v. Rahimi, a challenge to a federal law that takes away guns from people subject to domestic violence restraining orders. From the moment the court agreed to hear the case, advocates hoped it would provide an opportunity for the court to limit the scope of last year’s blockbuster decision that expanded gun rights.

From the arguments, it seems that the disturbing facts of the Rahimi case will likely prompt at least some conservative justices, and the court, to uphold the gun law in question. Such a decision could bode well for the constitutionality of other gun safety rules, especially red or yellow flag laws, which disarm people who pose a threat to themselves or others.

But even if the court upholds the challenged law, it seems unlikely to address the broader question at the heart of this case: whether and how a distant past constrains current policymakers, and in particular the impact of such an interpretive approach. about women.

The court made clear its commitment to a method of constitutional interpretation tied to history and tradition in June 2022 when it announced its decisions in the gun regulation case. New York State Rifle and Pistol Association v. Bruen as well as in the case that overturned Roe v. Wade, Dobbs v. Jackson Women’s Health Organization.

In Dobbs, the conservative justices said that the right to abortion was not explicit in the constitutional text and was not deeply rooted in the history or traditions of this country. In removing the long-standing right to abortion, the court relied on a history in which women were not considered full members of the political system to justify imposing a twisted vision of equal citizenship on today’s women. In Bruen, the court devised a test that contemporary firearms regulations can survive Second Amendment scrutiny only if the government can demonstrate that they are “consistent with the nation’s historical tradition of gun regulation.” fire”.

The requirement that current gun laws resemble gun laws of the distant past prioritizes history and tradition in the same way that the Dobbs court turned to the historical regulation of abortion, pregnancy, and birth to support opinion that the Constitution did not protect a right. to abortion.

In this sense, Rahimi is not only a sequel to Bruen, but also a sequel to Dobbs. Rahimi has little to do with abortion rights, but as Attorney General Elizabeth Prelogar noted in her moving defense of the gun law on Tuesday, the court’s decision will have real consequences for women’s safety, as well as for of police officers responding to domestic demands. calls of violence and the general public. The court may have seemed prepared to uphold the law, but the conservative justices seemed uninterested in revisiting the history and tradition test announced in Bruen.

Only Justices Elena Kagan and Ketanji Brown Jackson were openly skeptical of the test. In a notable exchange with attorneys for both sides, Judge Jackson, who was not a member of the court when it decided Bruen and Dobbs, said she was “trying to understand if there is a flaw in the story and… Traditions are a kind of framework to the extent that when we look at history and tradition, we do not consider the history and tradition of all the people, but only some of the people.”

His point was clear. The history and tradition methodology privileges laws enacted in times such as the 1780s, when the original Constitution was ratified, and the 1860s, when the 14th Amendment was written and ratified, times when neither women nor people People of color could fully join the political community and played no official role in enacting laws.

Should a method that privileges times of extreme democratic deficit be relied upon to determine contemporary constitutional meaning?

The lower court decisions applying to Bruen make clear the absurdity of Bruen’s history and tradition test. Lower courts have invalidated firearms regulations and limits in the subways, theaters and concert halls, and even in summer camps, all because such bans lack historical analogies. they have too shot down a federal law that prohibits the possession of firearms deleted serial numbers as well as a Biden administration regulation of “ghost guns,” and lower courts find such measures not sufficiently rooted in history and tradition. This is not surprising: the founding fathers did not carry guns on the subway nor did they own firearms with serial numbers.

The history and tradition method produced the lower court’s opinion in this case, which struck down the provision disarming domestic abusers and sided with the defendant, Zackey Rahimi. Mr. Rahimi became the subject of a domestic violence restraining order after assaulting the mother of his child, then repeatedly defied the order, threatened another woman with a gun and opened fire in public five times. However, the lower court invalidated the law under which he was convicted, holding that there was no strong historical tradition of disarming people subject to domestic violence protection orders.

The law in question in Rahimi highlights the interpretive clash between the past and the present. The law was enacted in 1994, just two years after the 1992 elections brought record numbers of women to Congress in what became known as the “Year of the Woman,” a political environment decidedly different from those under the center of the court’s history. method and tradition. Spurred by feminist concerns, the law was included as part of the Violent Crime Control and Law Enforcement Act of 1994 and sought to disarm individuals who posed a specific threat of domestic violence and were subject to restraining orders.

In the oral argument, the attorney general emphasized the validity of the law and the persistence of domestic violence. But he did not press the court to review evidence that would make such considerations irrelevant.

And although Judge Jackson appeared to invite the attorney general to disavow or at least reshape the history and tradition test, Ms. Prelogar limited her criticism to the lower courts’ application of that test.

Notably absent from Ms. Prelogar’s argument was any recognition of the test’s fundamental flaw: its deliberate devaluation of current concerns while fetishizing a democratically flawed past.

Upholding the law would be a victory for women, but it would be a silent victory. There appears to be no consensus regarding the articulation of a more reasonable constitutional test. Instead, the court seems determined that these battles take place in a landscape marked by a history created by men.

But this avoids the real central issue of this case: and the court’s recent adoption of history and tradition as touchstones of constitutional interpretation. The law challenged in Rahimi reflected a deliberate effort to disrupt history, to break with a past in which the law not only failed to protect women but in many ways ensured their subordination.

As an amicus curiae brief filed by a group of historians and jurists explains, at common law, the principle of “coverage” gave husbands legal authority over their wives, including the prerogative to “correct” or “punish” by force. or violence. there is active debate about how domestic violence was perceived in the 18th and 19th centuries. But arguing in these terms still embraces a fundamentally undemocratic principle: that only history, at whatever level of generality, can determine whether contemporary laws are constitutional.

Although the history of domestic violence law enforcement was discussed and debated at length in the writings, it was only cursorily referenced in oral arguments. This is also notable. If the terms of the debate are history and tradition, whose history and traditions will take priority?

The Roberts court’s commitment to history and tradition leads inexorably to what one of us (Ms. Murray) has called a “masculinity jurisprudence”—a set of decisions that reflect a constitutional order made with men in mind. But this view is notable for its disregard for other constitutional values, including women’s equality and equal citizenship.

This underscores another link between Rahimi and Dobbs. As the Amicus brief from the Center for Reproductive Rights In the details of the Rahimi case, research shows that pregnancy can be a trigger for intimate partner violence, increasing both the risk of violence and its severity.

A decision upholding this domestic violence law could mitigate some of Bruen’s consequences. But it would not undo the fundamentally flawed view of the Constitution that this court seems determined to promote.