Update: The 5th U.S. Circuit of Court of Appeals on Feb 1, 2023 sided with the Texas judge cited below, ruling that the federal ban was unconstitutional. The Justice Department has indicated that it will appeal.
By April M. Zeoli and Shannon Frattaroli
For a large part of the history of the United States, domestic abuse was tolerated under the nation’s legal system. There were few laws criminalizing domestic violence, and enforcement of the existing laws was rare.
It was only in the past few decades that laws criminalizing domestic violence came to be widespread and enforced. But now, the U.S. is in danger of backtracking on that legal framework precisely because of the nation’s historical legacy of turning a blind eye to domestic violence.
On Nov. 10, 2022, a judge in the Western District of Texas struck down the federal law that prohibits access to guns for people subject to domestic violence protection orders. He did this based on a 2022 U.S. Supreme Court ruling, NYSRPA v. Bruen, which held that, to be constitutional, a firearm restriction must be analogous to laws that were in existence when the country was founded. In other words, disarming domestic abusers violates the Second Amendment because those types of laws didn’t exist at the founding of the country.
The ruling has since been appealed to the 5th Circuit Court. The outcome of the appeal is far is from certain.
We study the link between gun laws and domestic violence in the U.S. and know that backtracking on laws that prevent the perpetrators of domestic violence from getting their hands on guns will put lives at risk – the research has proved this time and time again.
Putting lives in danger
At present, federal law prohibits persons subject to final – rather than temporary – domestic violence protection orders from purchasing or possessing firearms. In addition, 39 states and the District of Columbia have similar prohibitions on their statutes, with many expanding the restrictions to include individuals under temporary, or ex parte, orders prior to a full hearing.
Ruling that these laws are unconstitutional will put mainly women and children in danger. More than 50% of women who are murdered are killed by intimate partners, and most of those homicides are committed with guns. A 2003 study found that when an abusive man has access to a gun, it increases the risk of intimate partner homicide by 400%.
Women constitute the majority of victims of intimate partner homicide, and almost one-third of children under the age of 13 who are murdered with a gun are killed in the context of domestic violence.
Moreover, 68% of mass shooters have a history of domestic violence or killed an intimate partner in the mass shooting.
Enforcement of gun restrictions is spotty, with further research needed as to how systematically they are ordered and whether restricted individuals relinquish firearms they already possess. Nonetheless, research shows that firearm restrictions on domestic violence protection orders save lives. Multiple studies conclude that these laws are associated with an 8%-10% reduction in intimate partner homicide.
Specifically, there are statistically significant reductions in intimate partner homicide when the firearm restriction covers both dating partners and those subjected to temporary orders. This decrease is seen in total intimate partner homicide, not just intimate partner homicide committed with guns, nullifying the argument that abusers will use other weapons to kill.
Moreover, these laws have broad support across the country – more than 80% of respondents to two national polls in 2017 and 2019 said they favor them.
Americans – whether male or female, gun owner or non-gun owner – tend to agree that domestic abusers should not be able to purchase or possess firearms while they are subject to a domestic violence protection order. Most seem to realize that such reasonable restrictions serve the greater good of keeping families and communities safe.
A disregard for data
The ruling in Texas was based on an originalist legal argument rather than the data. Under the judge’s interpretation of the Bruen decision, because colonial law – written before a time when women could vote, let alone be protected in law from violent spouses – didn’t restrict domestic abusers’ gun rights, then it simply isn’t constitutional to do so now. In effect, the ruling, should it stand, would mean the U.S. is unable to escape the nation’s historic legal disregard for domestic violence.
It also disregards the harm that allowing domestic abusers to keep hold of guns does. Multiple studies demonstrate that domestic violence firearm restriction laws are effective and save lives.
That research shows that, should the Texas ruling stand, people who suffer abuse at the hands of an intimate partner are at greater risk of that abuse being deadly.
April M. Zeoli is Associate Professor of Public Health at the University of Michigan. Shannon Frattaroli is Professor of Health Policy and Management at Johns Hopkins University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
Mondexian Mama says
What the judge, like so many others overlook, is that musket muzzle-loading guns were state-of-the-art weapons when The Second Amendment was written. It is doubtful whether the framers of the Constitution would have included assault rifles. Home defense is a false narrative, it didn’t work at Waco. The feds were outgunned the first day and the second day they showed up with tanks. Assault rifles have two purposes, to kill and to compensate for small balls.
This whack job of a judge, like so many others who claim to be “constitutional originalists”, want all of America to believe that what the framers of our Constitution envisioned 246 years ago should remain the law of the land in today’s 21st century America. At least as it protects and benefits them. They love to cherry pick examples of what they want to enforce, and completely ignore so many other things that constitutional amendments have changed over the course of our nation’s history. They love guns and point to the Constitutional right to bear arms, but conveniently neglect to recall that there were no such things as semi-automatic pistols and assault rifles back in the 1700s. No, it was mainly muzzle loaded, black powder fired muskets. But they believe the 2nd amendment gives any idiot with 2 legs who happens to step into a gun store or attend a gun show the ability to buy and possess as many guns to include assault rifles as one wants. The reality is that in 1776, it was only wealthy, white landowners who even had the legal ability to vote. Women had no say in practically any aspect of life. When black people were kidnapped from their homes in Africa and forcibly transported in shackles to the new world and sold as property, we all know how much “rights” were given to them. Back then, every man needed to own some type of gun because there was no national military force and America had just repelled the British military forces from our land, and we really had no idea if they would try to take over America again after their defeat. Back in that time period, there are so many archaic and outdated aspects of the U.S. Constitution that necessarily had to be changed over the course of our history as the country modernized and as people’s lives, thoughts and values have evolved. One of the very well thought out and reasonable recent changes to gun laws in many states that became critically important due to increased domestic violence incidents was exactly what this idiot judge in Texas is now saying is unconstitutional because it disallows a constitutional right. Yet other legal rights, such as the right to vote, are routinely taken away from people who are found guilty of some crimes. Does this judge believe that gun possession rights cannot be taken away even when a person is convicted of a crime? Would his next decision be a ruling that a convicted murderer still has the right to have a firearm? This is how insane his ruling is, and I hope other appellate judges who will be reviewing this decision have more brain cells than this judge and overturn this ridiculous decision.
Deborah Coffey says
When it comes to the 2nd Amendment, we are a very sick country. The world looks at us with horror and we don’t even have enough sense to be embarrassed.
Bill C says
Westward Ho! What time does the next wagon train leave for 1800?
Michael Cocchiola says
Hey… it’s TEXAS for god’s sake. Like extremist Floridians, bigger and more extremist Texans are willing to kill or die violently from gunfire to protect their “freedom” to carry guns.
Insane, yes. But maybe the vast majority of Americans are just too narrow-minded to appreciate the sacrifices gun nuts are willing to make for us.