GUN RIGHTS LIMITED

COURT PROTECTS VULNERABLE WOMEN WITHIN THE AMENDED CONSTITUTIONAL RIGHTS

By PETER THOMAS BUSCH

T

he right to bare arms proves not to be so absolute after all in the United States of America.

The United States Supreme Court followed historical regulations restricting the right to possess and carry weapons otherwise guaranteed in the Second Amendment to uphold a limited weapons ban in protection orders.

In the United States v. Rahimi, No 22-915, 602 U.S. (2024), the respondent had challenged  a federal statute prohibiting individuals subject to a domestic violence restraining order from possessing firearms.

The decision released on June 21, 2024 limits the right to carry firearms granted under the Second Amendment of the United States Constitution.

The Court in distinguishing previous decisions regarding state intervention in Second Amendment Rights cited historical regulations requiring individuals to provide a bond and ‘going armed laws’ as reasonable limits on the Second Amendment Rights.

The right to bare arms at home and in public had previously been limited for individuals with a history of felony convictions and/or mental illness. Drug addicts are also barred from carry a weapon in certain states.

The facts of the case before the court are that the respondent, Zackey Rahimi, used physical violence against his girlfriend, and even attempted to use a handgun against her, before she escaped from the car she had been dragged into during a lunchtime argument.

The girlfriend was able to get a domestic violence restraining order against Rahimi, which included a temporary prohibition on possessing guns.

Chief Justice Roberts provided the opinion of the court, in an 8-1 decision, with Justice Thomas dissenting.

Justice Thomas dissented by stating the historical analyses linking a domestic violence protection order with historical regulations limiting dangerous people from possessing weapons was inconsistent reasoning.

The court found though that limiting the Second Amendment rights of a known perpetrator of domestic violence is a justified limit on the right to possess and carry firearms, in the home or otherwise.

Roberts points out that the Second Amendment Right arises from the need during the American Revolution for militias and individuals to remain armed in the face of ongoing colonial aggression in 1791. The American Revolutionary War had concluded in 1783, but loyalists to the British Crown continued the fight to some extent.

The contemporary court has already decided that the Second Amendment reference to militias also includes individuals.

The 14^th Amendment Right similarly protected black individuals by allowing them to bare arms for purposes of self defence in 1886.

Gun rights in the United States are ultimately self defence rights. The rights are not meant in anyway to facilitate violence. Blacks returning from the civil war in possession of government issued firearms were being asked to relinquish their guns, and once having done so, the Unionist soldiers consequentially became more vulnerable to being shot by discontented white Confederates.

The creation of this power imbalance was analogous to the colonial government or the state and English Crown passing gun law restrictions and then subsequently persecuting large swaths of minorities within the population.

Chief Justice Roberts ruled that any new laws limiting gun rights must be similar in intent and outcome than the original rights being limited by the regulations.

Essentially, Rahimi was not possessing a gun in self defence, but he was instead considered a threat to others, using a gun to escalate violence, and should therefore have his ability to put others in danger limited.

The ruling is consistent with previous rulings overturning gun restrictions. The line of gun rights cases first established the breadth of the Second Amendment rights.

VULNERABLE WOMEN ARE CATEGORIZED AS A GROUP WITHIN THE POPULATION WORTHY OF CONSTITUIONAL PROTECTION

In the District of Columbia v. Heller, 554 U.S. 570, 626 (2008) the court established the right to carry a gun in the home for self defence purposes. The right was conferred on individuals outside the definition of militia, to clarify the original intent in the plane meaning of the Constitutional text.

Then in McDonald v. Chicago, 561 U.S. 742, 778 (2010), the court affirmed the right of individuals to carry guns in self defence within the broader need to defend liberty. The case also established that the Second Amendment was applicable to State gun control, not just to federal regulations.

Finally, in New York State Rifle & Pistol Assn., Inc v. Bruen, 597 U.S. 1 (2022), the right to carry guns in public, for the broader purpose of self defence, was established.

United States v. Rahimi now affirms limitations on the right in the context of carrying guns for reason other than self defence. The rule confirms the right to carry guns for purposes of self defence, but that right is clawed back if the individual is a credible threat to cause harm.

 Vulnerable women are categorized as a group within the population that deserve the protection of the Constitution. The court identifies the gun right as never having been Carte Blanc. Reasonable limits that prevent violence had been imposed since before the drafting of the Constitutional Amendment in 1791

The court then follows the historical record of how gun rights were limited for the greater public peace, mainly when known offenders might misuse guns to create public disorder and bring harm to individuals within the community.

JUSTICE SOTTOMAYOR

Justice Sottomayor in providing a concurring opinion refers to the pivotal points in the history gun rights as the Founding Era and the Reconstruction Era respectively.

Sottomayor writes that a strict interpretation of Second Amendments rights would preclude the inclusion of blacks and women as equals within the union. Blacks and women had limited equality rights compared to white men during the Founding Era.

Blacks and women initially did not own property and did not vote in the democracy. People were considered equal but certain people were more equal that others. These racial and gender tropes persisted even after the Civil War and the emancipation of blacks.

Blacks were free but not equal during the Reconstruction Era. And women, black and white women, experienced limited equality rights up until the modern day Women’s Liberation Movement.

The court, in this manner, indirectly supports female equality by deconstructing the power imbalance between men and women in intimate relationships. The Supreme Court justices affirm that domestic violence is a serious social problem requiring the court’s intervention in society. Women have a right to be protected from harm and the fear of harm.

Domestic violence may take many forms, such as psychological and emotional harm, limiting financial control and verbal abuse, stalking and cohersion.

The problem in society is so severe as to justify the limitation of individual rights belonging to others, in order to protect the rights of women and everyone else from the same threat.

THE PROBLEM IN SOCIETY IS SO SEVERE AS TO JUSTIFY THE LIMITATION OF INDIVIDUAL RIGHTS

In this way, the need to keep public order and gender equality rights trump Second Amendment rights.

The court states that individuals carrying guns is to be presumptively lawful.

The state has the onus of establishing a valid reason to limit that right.

In essence, the court balances the individual right against the public good, by protecting women in intimate relationships.

Seventy women are killed with a gun by intimate partners every month in the United States. And even more people die at the catastrophic incident, with the assailant often also killing children and other people in the home, as well as law enforcement officials arriving at the scene.

Sottomayor concurred that a firearm ban as part of a domestic violence restraining order is consistent with historical firearm regulations that limit the potential for violence and harm to the public.

The historical regulation referred to must comply with the historical record, but the regulation need not be an exact match. The court discounts one-off aberrations of the legal standard that do not follow precedent.

The consistent rational to gun limits is regarding credible threats to the safety of others, and in the process, harm to the public order.

JUSTICE BARRETT

In a second concurring opinion, Justice Barrett summarizes the argument as a balance between a fundamental right and the right of the state to intervene and limit that right.

Barrett defines the originalist approach to constitutional interpretation as first, requiring an examination of the meaning fixed at the time of writing the Constitutional text, and second, the nuanced meaning derived from constitutional interpretation must have a legal meaning and also be authoritative in most circumstances.

The second step is referred to as historical contours of the original constitutional meaning. These contours must be analogous to the original meaning, but these language derivatives do not need to be identical to each other to be binding on the court.

The history of America has been nuanced by the simultaneous fight against tyranny and the fight to protect the equality rights of individuals against the state. The patriots were protected against the remaining colonialists. Blacks were protected against the disenchanted Confederates.

JUSTICE THOMAS DISSENTING

In a dissenting opinion, Justice Thomas relies on the predictability of human nature, for better or for worse.

Thomas opined that the Founding Fathers anticipated the social problems that would arise.

Thomas does not necessarily oppose the end result of the decision, but he certainly does not like how the majority of the court got there through the linking of ‘questionable’ jurisprudence.

NEGATIVE RIGHTS

The Court in a line of opinions on Second Amendment rights first establishes the negative rights of individuals to carry guns unhindered by the state (federal or state). Negative rights prevent the state from acting against individual freedoms by taking away the guns.

The court has now embarked on establishing positive gun rights that protect vulnerable individuals and the public from harm. Positive gun rights allow the state to intervene and limit possession of firearms in circumstances of imminent harm.

This rule allows states to assess the past history of a real or potential gun owner as a way to predict future conduct, and thereby keep guns out of the hands of violent offenders destined to commit a gun offence and to repeat offend.

The state remains one of the few players with the right to possess weapons for offensive reasons, although meant only to defend the public peace and good order.

Imminent harm to an individual must first be established by the lower court, such that the person wanting to carry a gun is a convicted felon or has a history of mental illness, or has committed an act of domestic violence.

States also restrict drug addicts from possessing guns.

DUE PROCESS

The victim of domestic violence must first compel the court to assess the violence.

And the alleged perpetrator must be given an opportunity to defend against the allegations.

If the domestic violence is proven to be at such a level that the perpetrator is deemed to be a credible, further risk to the victim and to society, then the limit on the Second Amendment right is justified.

This process of obtaining a protection order fulfills the legal requirement by the Supreme Court, to justifiably limit gun rights, as long as those steps are fulfilled, fully and completely.

DOMESTIC VIOLENCE IS A LOATHSOME ACT OF AGGRESSION THAT BETRAYS THE TRADITIONAL TRUST BETWEEN INTIMATE PARTNERS

The court is able to protect vulnerable women in American society under the Second Amendment because guns can only be used in self defense while domestic violence is a loathsome act of aggression that betrays the traditional trust between intimate partners.

GROUP RIGHTS

The Supreme Court in the decision shows an interest in preserving the traditional American society.

By protecting vulnerable women, the court distinguishes between innocent fragments of society and the guilty disenfranchised. Violent abusers become part of the disenfranchised with the felons and the drug addicts marginalized along the borderlines of main stream society.

The United States Supreme Court in the process of delineating rights of Americans under the Second Amendment has first and foremost established strict methodology in Constitutional Interpretation that future compositions of the court will be compelled to implement.

The current conservative court has shaped the finding of meaning by using historical originalism, with analogous reasoning not being allowed to drift too far outside the intent of the drafters of the Constitution and the vision of the Founding Fathers of the Nation.

Analogous examples are laws and/or regulations with nuanced differences in meaning that can be found through the generations, often creating exceptions to the rule or reasons to restrict the Constitutional right.

Second of all, the Supreme Court endeavours to shore up the society becoming more and more vulnerable to political and ideological fragmentation.

For example, the abortion issue is so polarizing that national consensus would be impossible, at least in the near future, because of the conflict with various other long entrenched rights, such gender equality, religious freedoms and free speech.

The Supreme Court ruled that the states must deal with this abortion issue individually, each empowered by the Supreme Court decision to establish their own political, religious and medical limits on the issue.

This decentralization of the abortion issue results in the simultaneous deconstruction of the national debate. One big fight on the national stage becomes 51 smaller fights at state level, often occurring outside of the national spotlight.

But averting the risk of harm, discouraging violence, and preserving intimate familial relationships are issues around which a national consensus can be formed.

By protecting women within one of the most cherished of American rights, the right to carry a gun, the court includes vulnerable women within the majoritarianism that consistently dominates America.

At the same time, those who wish to do harm to the national fabric become pushed into the margins, further away from the center, due essentially to their own misconduct deserving of public rebuke.

The opposite results from the court would have enforced the gender power imbalance in intimate relationships.

Ultimately, the court averted an even greater risk of this negative sentiment toward vulnerable women infecting other aspects of society, such as employment, and as a result, deterioration the gains that have made in gender equality going on over 100 years now.

The nuclear family in the idyllic epi center of society has the most rights and enjoys those rights, to the fullest extent possible. Those people also more closely identify with the American identity.

Individuals have less rights the further out into the margins of society they find themselves, perhaps only finding themselves out there after generational fragmentation, having been deconstructed bit by bit, until becoming too distant caricatures of the national identity.

Rightly or wrongly, felons have fewer rights and find themselves irrevocably further away from the American identity from which the nation finds meaning. Society provides the same end game for drug addicts, mental health patients and now perpetrators of domestic violence.