The Conservative Supreme Court Vision That Means Inequality for Women

The Supreme Court last week heard oral arguments in United States v. Rahimi, a challenge to a federal law that takes guns away 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 sweep of last year’s blockbuster decision expanding gun rights.

Coming out of the arguments, it appears 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 regulations — especially red or yellow flag laws, which disarm individuals who pose a threat to themselves or others.

But even if the court upholds the challenged law, it seems unlikely that it will address the broader issue at the heart of this case: whether and how a long-distant past constrains present-day policymakers, and particularly the impact of such an interpretive approach on women.

The court made clear its commitment to a history-and-tradition-bound method of constitutional interpretation 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 overruled Roe v. Wade, Dobbs v. Jackson Women’s Health Organization.

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

The requirement that present-day gun laws resemble gun laws of the distant past prioritizes history and tradition in much the same way the Dobbs court looked to the historic regulation of abortion, pregnancy and birth to support the view that the Constitution did not protect a right to abortion.

In this regard, Rahimi is not only a sequel to Bruen, but also a sequel to Dobbs. Rahimi has little to do with abortion rights, but as Solicitor General Elizabeth Prelogar noted in her stirring defense of the gun law on Tuesday, the court’s decision will have real consequences for women’s safety, as well as the safety of police officers who respond to domestic violence calls and the broader public. The court may seem poised to uphold the law, but the conservative justices did not appear interested in revisiting the history-and-tradition test announced in Bruen.

Only Justices Elena Kagan and Ketanji Brown Jackson appeared openly skeptical of the test. In one remarkable back-and-forth with attorneys for both sides, Justice Jackson, who was not a member of the court when Bruen and Dobbs were decided, said that she was “trying to understand if there’s a flaw in the history-and-traditions kind of framework to the extent that when we’re looking at history and tradition, we’re not considering the history and tradition of all of the people but only some of the people.”

Her point was clear. The history-and-tradition methodology privileges laws enacted in eras like the 1780s, when the original Constitution was ratified, and the 1860s, when the 14th Amendment was drafted and ratified — moments in time when neither women nor people of color were able to fully join the political community and played no official role in enacting laws.

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

Lower-court decisions applying Bruen make clear the absurdities of Bruen’s history-and-tradition test. Lower courts have invalidated regulations and limits on firearms on the subway, at theaters and concert venues, and even at summer camps — all because such prohibitions lack historical analogues. They have also struck down a federal law that bans the possession of guns with removed serial numbers as well as a Biden administration regulation of “ghost guns,” with lower courts deeming such measures insufficiently rooted in history and tradition. This is unsurprising: The founding fathers did not tote guns on the subway or possess firearms with serial numbers.

The history-and-tradition method produced the lower court opinion in this case, which struck down the provision disarming domestic abusers and sided with the plaintiff, 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, threatening a different woman with a gun, and opening fire in public five times. Yet the lower court invalidated the law under which he was convicted, maintaining that there was no robust historical tradition of disarming people subject to domestic violence orders of protection.

The law at issue in Rahimi underscores the interpretive clash of past and present. The law was enacted in 1994, just two years after the 1992 election ushered into Congress an unprecedented number of women in what became known as the “Year of the Woman” — a decidedly different political milieu than those at the center of the court’s history-and-tradition method. Animated 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 were found to pose a specific threat of domestic violence and were subject to restraining orders.

At oral argument, the solicitor general emphasized the law’s provenance and the persistence of domestic violence. But she did not press the court to revisit a test that would make such considerations irrelevant.

And though Justice Jackson appeared to invite the solicitor general to either disavow or at least refashion the history-and-tradition test, General Prelogar limited her critique to lower courts’ application of that test.

Notably absent from General Prelogar’s argument was any acknowledgment of the test’s fundamental flaw: its deliberate devaluing of present-day concerns while fetishizing a democratically deficient past.

Upholding the law would be a victory for women, but it would be a muted one. There does not seem to be a consensus around articulating a more reasonable constitutional test. Instead, the court seems determined that these battles take place on a landscape marked by a history that men made.

But this avoids the true issue at the heart of this case — and the court’s recent embrace of history and tradition as the bellwethers of constitutional interpretation. The law challenged in Rahimi reflected a deliberate effort to disrupt history, to break from a past in which the law not only failed to protect women but in many ways ensured their subordination.

As an amicus brief submitted by a group of historians and legal scholars explains, in common law, the principle of “coverture” gave husbands legal authority over their wives, including the prerogative to “correct” or “chastise” through force or violence. There is active debate regarding how domestic violence was perceived in the 18th and 19th centuries. But arguing on these terms still embraces a fundamentally antidemocratic principle — that history alone, at whatever level of generality, can determine whether contemporary laws are constitutional.

Although the history of domestic violence enforcement was extensively discussed and debated in the briefs, it was only glancingly referred to in oral argument. This too is notable. If the terms of the debate are history and tradition, whose history and traditions will get priority?

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

This underscores another link between Rahimi and Dobbs. As the amicus brief by the Center for Reproductive Rights in the Rahimi case details, 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 might blunt some of the fallout from Bruen. But it would not unravel the fundamentally flawed vision of the Constitution this court seems determined to further.

Melissa Murray is a law professor at New York University. Kate Shaw is a contributing Opinion writer and a professor of law at Cardozo Law School. They are hosts of the Supreme Court podcast “Strict Scrutiny.”

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