Gun violence in the US isn’t colorblind. The US Supreme Court’s refusal to acknowledge the racial implications of its recent and pending Second Amendment decisions is dangerous for the marginalized communities most impacted by gun violence.
The court recently heard arguments in United States v. Rahimi, a case that will soon decide the constitutionality of a federal statute prohibiting a person who is subject to a domestic violence restraining order from possessing a firearm.
Rahimi will be the court’s first case to apply the principles the court announced in its landmark Second Amendment decision, NY State Rifle & Pistol Association v. Bruen, that found a New York firearms licensing statute unconstitutional.
Although not immediately apparent, significant racial justice implications are at issue in both Rahimi and Bruen. Together, these cases illustrate how the Second Amendment, guns, and race are inextricably intertwined. As the court persists in relaxing access to firearms, it’s increasingly important for policymakers to invest in addressing root causes of gun violence.
In Bruen, amici briefs on both sides noted the racial implications of that decision. In that case, those supporting striking down the New York licensing statute noted that 90% of those prosecuted under the New York law were racial minorities.
The statute at issue made it a crime to have a firearm, inside or outside the home, without a license. A group of public defenders and legal aid attorneys noted this regulation contributed to mass incarceration and unfairly targeted Black and Brown people.
On the other side, proponents of upholding the licensing scheme pointed to the disproportionate number of racial minorities impacted by gun violence in New York.
Ultimately, the court held that the New York statute was unconstitutional, and that efforts to regulate firearms must be consistent with the historical tradition of firearm regulation.
Although the court articulated that modern regulations needn’t be identical to a historical effort to regulate firearms, the constitutionality of modern regulations would be analyzed according to whether there had been an analogous historical regulation.
This historical analysis, rooted in originalism, is deeply flawed given the rights of Black Americans and women were specifically subverted and excluded in the Constitution, and indeed until the 20th century.
This analysis leaves little to no room to consider the impact on modern communities of firearm regulation—or rather the lack of regulation.
Although Justice Clarence Thomas noted in Bruen that several states enacted statutes restricting concealed carry of firearms to disenfranchise newly free enslaved people, he doesn’t consider that during Reconstruction, similar laws restricting concealed carry of firearms also protected newly freed Black people from gun violence.
Advocates of addressing gun violence are rightly concerned about how the court will further clarify this originalist analysis. It’s widely established that domestic violence restraining orders, like the one at issue in Rahimi, have beneficial impacts on the rates of domestic violence.
A 2006 study compared Interpersonal Homicide rates in states before and after enactment of domestic violence restraining orders firearm prohibitions with those in states that didn’t enact such legislation.
Between 1982 and 2002, after the enactment and implementation of a DVRO firearm prohibition law, female IPH rates declined by 8% and female IPH firearm rates declined by 10%.
A 2017 study found that states that enacted legislation that prohibited subjects from purchasing guns and required them to relinquish their firearms, had a 14% lower rate of firearm-related IPH than states without this legislation, for the period 1991-2015.
The inability to restrict firearm possession by domestic violence offenders could especially impact Black women, a group that is more likely to be abused by their intimate partners than White women.
Since the oral arguments and briefs in Rahimi were devoid of any prolonged discussion about the impact on racial minorities, the erasure of racial implications of gun regulations could have devastating consequences to groups that already have few tools to combat gun violence.
The absence of this discussion isn’t by happenstance, but is a natural consequence of Bruen’s focus on the history and tradition test, rather than a means-based test that would balance the interest of protecting vulnerable groups from gun violence.
The current federal law is a powerful tool to address interpersonal violence. If the court strikes down the statute in Rahimi, the real losers, again, would be marginalized communities and those most susceptible to intimate partner violence.
The current court’s refusal to acknowledge the impact to these marginalized groups, and the emphasis on history and tradition—neither one of which would have acknowledged the vulnerable position of women, particularly Black women, in the US—may have deadly consequences.
While we await a decision in Rahimi, the court’s pronouncement in Bruen foreshadows a new era for addressing gun violence that won’t be characterized by restricting access to firearms. This is unfortunate because evidence shows that ready access to weapons impacts rates of gun violence.
Instead, the court’s newly minted Second Amendment jurisprudence signals that advocates of reducing gun violence and the disproportionate impact this violence has on communities of color and women will need to double down on extrajudicial strategies to combat gun violence in the US.
More federal and state resources to address the lack of access to quality education, health care, employment, and housing will be necessary to combat the violence plaguing our most vulnerable communities.
The case is United States v. Rahimi, U.S., No. 22-915.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Kami Chavis is vice dean, professor of Law, and director of the Center for Criminal Justice Policy and Reform at William & Mary Law School.
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