SCOTUS Just Made Domestic Violence More Deadly

By Julie Germann, J.D.

“[All too often] the only difference between a battered woman and a dead woman is the presence of a gun.” This statement made by the late Senator Paul Wellstone is as true now as when it was made in 1996. Senator Wellstone made this comment during the debate over the provision of the federal Lautenburg Amendment, which would prohibit the possession of firearms for those convicted of domestic violence. Firearms and domestic violence are a deadly combination. Studies continue to show that the presence of a gun in a home with domestic violence increases the risk of homicide by 1000 percent. This week’s Supreme Court ruling in New York v. Bruen not only upends years of gun control jurisprudence, but it will also undoubtedly increase the number of dead women. In a 6-3 decision the Supreme Court struck down a New York State law which required a license to carry a concealed handgun outside the home. The suit was brought by two upstate gun owners who argue that New York’s system of awarding permits to carry handguns in public is so restrictive that it violates the Second Amendment’s “right to keep and bear arms” provision. The facts of the case do not concern domestic violence, but the holding in the case will have deadly consequences for victims of domestic violence.

This ruling represents the Supreme Court’s largest expansion of gun rights in more than a decade. In addition to casting doubt on other states’ laws that restrict concealed-carry permits, the ruling in Bruen casts doubt on all current gun control regulations -- and the gun control legislation that is currently making its way through Congress.

Prior to this decision every Court of Appeals in the United States relied on a two-step process for evaluating whether a firearm regulation was consistent with the Second Amendment right to bear arms. The first step is a historical approach. The court looks to the text, history, and tradition to determine if the regulated activity falls within the scope of the Second Amendment. If so, the court then considers the strength of the government’s justification for regulating that Second Amendment right. The Bruen decision replaces the two-step analysis with its own, one-step, history-only analysis.

With the new framework introduced by the Court in Bruen, everything we thought we knew about firearm regulation –keeping guns out of the hands of domestic abusers or off commercial airlines -- is now called into question.

Courts can no longer rely on social science data or other empirical evidence to uphold gun control laws. They cannot cite the data that shows the link between domestic violence and firearm homicide among victims. Nor can the court rely on the data that tells us nearly 1 million women alive today have been shot or shot at by an intimate partner. The court also can’t consider the fact that 68% of mass shootings involve shooters who are either in the act of committing domestic violence or have a history of committing domestic violence. And they can’t consider that many of the officers killed in the line of duty are killed while responding to domestic violence. Finally, they can’t consider existing research that actually shows restricting access to guns by perpetrators of domestic violence reduces intimate partner homicide. All such data is no longer relevant to the question of which gun control laws are Constitutional.

The dangerousness of the precedent set by the Court in the Bruen case can’t be overstated. The Court is swiftly erasing 50 years of advancements in the protection of women from violence from an intimate partner. SCOTUS has managed to make a dangerous combination – domestic violence and firearms – even more deadly.