Does the Supreme Court Care about Women’s Health and Safety?
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Does the Supreme Court Care about Women’s Health and Safety?
Jim Windell
In 2008, a U.S. Supreme Court decision, written by Associate Justice Clarence Thomas, said that the Second Amendment in the Bill of Rights gives every individual the right to possess a forearm. That was the upshot of the Court’s ruling in District of Columbia v. Heller.
But what about people who have been involved in domestic violence? And what if there is a personal protection order or a restraining order against them? Are they still allowed to possess a gun? And what about the Congress-passed Violence Against Women Act of 1994? Doesn’t it make it unlawful for people subject to certain domestic violence–related restraining orders to possess a firearm or ammunition for the duration of the order?
Has the U.S. Supreme Court virtually said that anybody – even domestic abusers – can own and carry a firearm?
Elizabeth Tobin-Tyler, J.D., writing recently in the New England Journal of Medicine, has addressed these important questions. Tobin-Tyler is Associate Professor of Health Services, Policy and Practice at the Brown University School of Public Health and Associate Professor of Family Medicine at the Alpert Medical School of Brown University. She points out in her article that two federal courts – the U.S. District Court for the Western District of Texas and the Fifth Circuit Court of Appeals – have struck down a key federal protection for people who have experienced intimate partner violence (IPV). This, then, leaves many of these people – basically, we’re talking about women here – at greater risk for firearm-related injury and homicide.
These two federal courts have simply followed the lead of the Supreme Court. Last year, in June 2022, the Supreme Court issued an opinion in New York State Rifle & Pistol Association v. Bruen. In that opinion, written, again by Thomas, leaves the door open for constitutional challenges to virtually any state or federal firearm restriction. That includes the restrictions in is a federal law passed in the Violence Against Women Act that, as indicated, makes it unlawful for those with a domestic violence–related restraining orders to possess a firearm
Then, following the Bruen decision, a federal district judge in November, 2022, held in United States v. Perez-Gallan that the Violence Against Women’s Act restriction on firearm possession by people subject to restraining orders is unconstitutional. In Bruen, Thomas and the conservative majority on the High Court used a new “history and tradition” analysis. This “history and tradition” analysis requires the government to demonstrate that there is a “historical analogue” to its current-day firearm regulation. Thomas’ reasoning is explained in the opinion: “Government intervention – much less removing an individual’s firearms – because of domestic violence practically did not exist” in early U.S. legal history.
What does this opinion mean? According to Tobin-Tyler, it means that any analysis or interpretation of the Second Amendment must answer the question as to whether a modern-day law is in keeping with laws considered historically significant. In effect, Tobin-Tyler writes, “It also erases the experiences of victims and survivors of IPV – most of them women – throughout U.S. history.”
In the article, Tobin-Tyler explains that searching for relevant laws from the 18th and 19th centuries to justify current laws protecting people who have experienced IPV “obscures the fact that married women weren’t even considered legal subjects until the late 19th century.” As we know, prior to the 20th century women were understood to be the property of their husbands. Even worse, Black women who were enslaved, married or not, had no legal rights. The beating of wives did not become illegal in some states until the late 19th century and for most of U.S. history was considered a private matter. Legal protection for women’s health and safety is thus a relatively new concern. Therefore, as the federal district court judge wrote in Perez-Gallan, restricting firearm access for domestic abusers is not in keeping with history and tradition.
The Supreme Court and the federal district courts appear to be concerned about the evidence regarding the role of firearms in IPV-related injury and death. Clinical, public health, and sociological evidence appears to be beside the point in the “history and tradition” approach to constitutional analysis. The Bruen decision, Tobin-Tyler argues, has given federal courts “free rein to ignore the robust evidence that preventing IPV perpetrators from possessing firearms can reduce the risk of injury and death.”
To read the full article by Dr. Tobin-Tyler, find it at:
https://www.nejm.org/doi/full/10.1056/NEJMp2301620
Tobin-Tyler, E. (2023). Courts’ Disregard for Women’s Health and Safety — Intimate Partner Violence, Firearms, and “History and Tradition.” The New England Journal of Medicine, DOI: 10.1056/NEJMp2301620
