Associate Justice Clarence Thomas at the Supreme Court building in Washington, Friday, Oct. 7, 2022. A recent ruling from a lower court held that, because of the Second Amendment, the federal government cannot bar individuals subject to domestic violence restraining orders from possessing a gun, the same argument Thomas made in a 2015 dissent. (AP Photo/J. Scott Applewhite)

One February morning eight years ago, I was half-drowsing through a Supreme Court oral argument when I (and others in the Court chamber) had an out-of-body experience. The low-profile case the Court heard that day, Voisine v. United States, was a test of the meaning of a federal statute that prohibited gun possession by anyone convicted of a “misdemeanor crime of domestic violence.” 

Stephen Voisine was a Maine man arrested for the federal crime of killing a bald eagle. After his arrest, federal agents discovered that he had been convicted of assaulting his domestic partner—which made his possession of the hunting rifle a felony. Voisine protested that his misdemeanor conviction was for reckless (not knowing or intentional) “use . . . of physical force,” and that the statute thus should not apply. The answer seemed obvious—“mere” reckless assault is a serious crime, especially in domestic violence cases. Ilana Eisenstein, the government lawyer defending the statute, had encountered so little pushback from the Justices that she closed her argument 12 minutes early. “If there are no further questions,” she began.

Cue the theme from The Twilight Zone.

Suddenly the voice of Justice Clarence Thomas rang out in the chamber for the first time in nearly a decade. “Ms. Eisenstein,” he said, “Can you give me another area where a misdemeanor suspends a constitutional right?”

After a moment of shock, Eisenstein answered that the Congress that passed the statute cited studies showing “that individuals who have previously battered their spouses pose up to a sixfold greater risk of killing, by a gun, their family member.”

It was a bravura recovery, and the answer seemed to satisfy the Court, which the following June, in 2016, voted 6-2 against Voisine’s “right” to own a gun. Thomas dissented; Justice Sonia Sotomayor partially joined him; she agreed with his reading of the statute as not covering offenders like Voisine. Sotomayor pointedly refused, however, to join the final section of Thomas’s dissent, in which he argued that Voisine had a constitutional right to his gun and complained that the Court was not treating the Second Amendment with as much solicitude as the First. A “single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever,” he complained, making the right to bear arms a “second-class right.”

By February 2015, when the Court heard Voisine, Thomas had sat silent during a decade of oral arguments about the death penalty, the Affordable Care Act, LGBTQ rights, same-sex marriage, abortion, the separation of church and state, the “war on terror,” campaign finance, and affirmative action. Only the Second Amendment rights of men who assaulted women had moved him to speak.

At that time, Thomas’s voice was a lonely one. Today, Thomas often dominates the Court, not only at oral argument but in the extreme jurisprudence issued by the post-Donald Trump majority and of the equally right-leaning lower federal courts.

The Court’s new Second Amendment jurisprudence, engineered by Thomas, stinks of death. Consider United States v. Rahimi, a decision announced by the Fifth Circuit Court of Appeals last week. In Rahimi, a panel of two Trump appointees and one Reagan appointee revisited the statute at issue in Voisine—and held that, because of the Second Amendment, the federal government cannot bar individuals subject to domestic violence restraining orders from possessing a gun.

The Supreme Court, led by Thomas, is gutting our ability to respond to a persistent and uniquely American public health problem—gun violence by domestic partners. 

Let’s be clear about the extent of the problem. During the Voisine argument in 2015, Eisenstein cited figures showing that domestic batterers are six times more likely to shoot and kill a family member than others. If anything, that figure is low. Last year, a coalition of domestic violence advocacy groups filed a Supreme Court amicus brief in the New York Rifle & Pistol Association case, in which Thomas knocked over a century-old New York gun licensing statute to expand gun rights. That brief cited another study finding that “[t]he presence of a gun in a domestic violence situation increases the risk of femicide by 1,000 percent.” It cited another study published in 2021 in the journal Injury Epidemiology showing that a majority—59.1 percent—of all mass shootings in the U.S. between 2014 and 2019 stemmed directly from domestic violence attacks. In 2016, an analysis of available data by the Associated Press found that “[a]n average of 760 Americans were killed with guns annually by their spouses, ex-spouses or dating partners between 2006 and 2014.” That number, the AP carefully noted, “does not include children and other bystanders who were killed.” According to an analysis of the AP figures by The Trace, a gun violence news site, 80 percent of those killed were women—meaning that during the period studied, one woman had been gunned to death every 16 hours.

Tut, tut, I can hear our Fifth Circuit panel of eminent jurists say; all this woke policy nonsense is simply beneath the notice of a federal judge. “The question in this case,” the opinion by Judge Cory T. Wilson suavely explains, “is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.” In fact, the judges note, they don’t even have to consider that question—by order of Thomas, whose Bruen opinion is now the template for Second Amendment cases. In Bruen, Thomas noted with disapproval that some federal circuits had evolved a “two-step test” of current gun regulations. If a government regulation burdened the individual “right to keep and bear arms” (a right the Court had discovered in the 2010 case of District of Columbia v. Heller), the court would go on to balance that right—which the Heller court called “the right of law-abiding, responsible citizens to use arms in defense of hearth and home”—against the danger the government was trying to protect against by gun-ownership limits.

The idea of such an effete balancing of danger to the public against Second Amendment rights scandalized the pro-gun caucus on the Court. In Heller, Justice Antonin Scalia had written that “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” In Bruen, the new majority explained that there is no second step—gun possession statutes and regulations are constitutional if and only if they are “consistent with the Nation’s historical tradition of firearm regulation.”

What that means, Thomas wrote in Bruen, is that in gun cases, courts may never consider the practical consequences of their decisions. This is a radical turn; indeed, considering practical consequences has been, at least until now, the central business of federal courts. Legislatures got to enunciate grand abstract principles; courts had to apply those principles to specific cases, considering the concrete results of alternative holdings.

Thef Burger Court considered practical consequences in 1982 when it held that the words “Congress shall make no law . . . abridging the freedom of speech” do not provide First Amendment protection to photographs and films depicting the sexual abuse of children. “When a definable class of material, such as that covered by [child pornography statutes], bears so heavily and pervasively on the welfare of children engaged in its production,” wrote Justice Byron White, “We think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.”

In 2010, the Roberts Court’s majority held that the needs of the “war on terror” could silence even lawful “core political speech” on subjects like international law and the meaning of human rights charters if that speech was directed to groups designated by the government as foreign terrorists. “As Madison explained, ‘[s]ecurity against foreign danger is . . . an avowed and essential object of the American Union,’ ” Chief Justice John Roberts wrote for a majority, including Clarence Thomas, in Holder v. Humanitarian Law Project. That meant, Roberts wrote, that the First Amendment did not protect “the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations”—which would be completely legal in other contexts. 

Well, from now on, there’s to be none of this balancing nonsense when it comes to our guns. Thomas wrote in Bruen that history is all that matters—”whether a historical regulation is a proper analogue for a distinctly modern firearm regulation.” In other words, a judge must look at the law of firearms in 1790 and ask whether a ban on 21st century military-style semiautomatic rifles is “analogous” to that bygone law governing the flintlock musket.

There’s a problem with this “analogical” test. Judges, particularly on the post-Trump federal bench, are to history as amateur art enthusiasts are to painting—they don’t know much, but they know what they like. And the Fifth Circuit judges concluded that there were no new-fangled domestic violence limits back in the day. Though there were statutes restricting gun ownership in the past, the Fifth Circuit panel’s opinion states, for one reason or another, those statutes are never quite “analogous.” For example, the English Militia Act of 1661 allowed the Crown to seize arms from those adjudged dangerous. Not so fast, Judge Wilson writes—the act was a tool of Charles II, a Catholic king who used it to disarm Protestant foes. No analogy there. Well, in the American colonies, so-called “dangerousness” laws prevented weapons ownership by entire classes of people adjudged to be a threat to society. Wilson still manages to wriggle out of acknowledging that there were gun limits in colonial America: “The purpose of these ‘dangerousness’ laws was the preservation of political and social order,” Wilson says, “not the protection of an identified person from the specific threat posed by another.”

That last analogical switcheroo gives the game away. A reasonable person surveying the contemporary American landscape might honestly think that the daily mass murder of intimate partners and families threatens the “political and social order”—but apparently, the two things are unrelated. The horrid truth is that at the time of the Founding, domestic violence wasn’t a threat to “political and social order”—it was a key part of it. This was a society in which the husband or father held almost unchecked authority, including the right to use violence to discipline his unruly inferiors. In a 1996 article, Yale Law professor Reva Siegel noted that Sir William Blackstone, the great expositor of the common law, wrote that husbands could use “moderate correction” on a wife—”for,” Blackstone writes, “as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement.” As then, so now: No regulation of domestic violence, under the Court’s new backward-looking rule, can ever be an “analogue” for a modern law addressing the current slaughter of the innocents.

Bear in mind that the heart of the supposed Second Amendment right, under Heller, is “a law-abiding citizen’s right to armed self-defense.” This “right” maps awkwardly onto the person of Zackey Rahimi, the defendant in the Fifth Circuit case, who was apprehended and prosecuted after a crime spree during which he shot up a house in which he’d just sold drugs to the occupant. Following the sale, he leaped from his car in a road-rage incident and opened fire on another driver, then sped away, switched cars, returned to the scene, and opened fire again. After that, he shot at a police vehicle elsewhere; and finally opened fire when a Whataburger outlet declined the credit card of a buddy.

After his arrest, Rahimi was found to have been subject to a domestic violence order, to which he fully agreed, forbidding him from possessing firearms. A jury convicted him of violating § 922; he appealed, arguing that the 1994 domestic violence provision was unconstitutional.

So what? “Law-abiding,” the panel explained, doesn’t mean, well, abiding by all the silly laws in existence today.Heller’s reference to ‘law-abiding, responsible’ citizens meant to exclude from the Court’s discussion groups that have historically been stripped of their Second Amendment rights.” Men who beat their wives were “law-abiding” in 18th-century terms, and so the Second Amendment protects them today. The Second Amendment, in other words, was written by men with guns to protect other men with guns.

The panel warned if we let the government expand the meaning to cover minor matters like domestic violence, there is no end to the woke mischief that may follow. “Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?”

Nobody thought of domestic abusers as criminals back in the day, after all, and thanks to Thomas’s Supreme Court, we all live back then.

Some of us will die there, too. That may be a subject of mild regret to judges, but history didn’t take our lives into account, and neither will they.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.