The Washington PostDemocracy Dies in Darkness

Opinion On guns, originalism as insanity

Gun-safety advocates rally in front of the U.S. Supreme Court in Washington on Dec. 2, 2019, while justices hear arguments in New York State Rifle & Pistol Association Inc. v. City of New York. (Drew Angerer/Getty Images)
6 min

In May, Louisville police were called to deal with a domestic violence complaint against a man named Litsson Perez-Gallan. The alleged victim, the mother of Perez-Gallan’s child, “states she was sitting on the bed holding their child and perp struck her on the left side of her face,” an officer wrote. “Vic then sat the baby down on the bed and vic stated perp then drug her to the bathroom and struck her in the face again and then began hitting her in the rib area. Vic had red marks on the left side of her face, a small laceration on her lip and pain around her chin area.”

The criminal justice system — a system that has too often ignored or underplayed domestic violence — worked, up to a point. Perez-Gallan was subjected to a restraining order. It barred him from being within 500 feet of his alleged victim or communicating with her.

In addition — and this is the subject of this column — the order prohibited Perez-Gallan from having a firearm.

The next month, Perez-Gallan was stopped while driving an 18-wheeler in Texas, near the border with Mexico. In his backpack, he had a stolen Sig Sauer pistol; in his wallet, a copy of the court order stating his conditions of release. He was charged with violating a federal law that prohibits gun possession by those under domestic violence restraining orders.

So far, so good? Not in the aftermath of the Supreme Court’s ruling this year in New York State Rifle & Pistol Association Inc. v. Bruen. The six-justice conservative majority, rejecting New York’s concealed-carry licensing law, said that the gun regulations had to be based on, or similar to, those that existed historically to pass constitutional muster. Without a historical analogue, the gun law violates the Second Amendment.

You might be able to guess where this is heading. Turns out, in Colonial times and beyond, authorities didn’t take domestic violence seriously. So, Perez-Gallan’s lawyer did what lawyers do: He seized on Bruen to argue that the law violates Perez-Gallan’s Second Amendment rights.

“The American Revolution secured the rights of white men to be protected from interference by the government in their private affairs,” wrote the lawyer, Shane O’Neal. After the revolution, he argued, “the newly minted American States moved away from laws in England and the New England colonies that punished domestic violence. Instead, practices that protected women and children from maltreatment by male heads of house were discarded as incompatible with a newfound sanctity for the family — a private sphere outside of the reach of government.” He quoted a historian: “Courts became notably reluctant to impose constraints on men’s abusive treatment of their household dependents.”

And no surprise: With domestic violence not seen as a problem, there isn’t much evidence of founding-era rules that prohibited the possession of firearms by those accused of it. “Our founders would never have anticipated disarming people accused but not convicted of domestic violence,” O’Neal argued.

Christine Emba

counterpointWhy do Americans want guns? It comes down to one word.

That’s right: Because the law then countenanced abusing women, it cannot be interpreted to protect them now.

Defending his client zealously is O’Neal’s job. Interpreting the Constitution both faithfully and reasonably is the judge’s job, and here is where things really went off the rails. U.S. District Judge David Counts found this month that the federal law violates the Second Amendment and ordered Perez-Gallan’s indictment dismissed.

“Domestic abusers are not new,” noted Counts, who was originally nominated by President Barack Obama and renominated by President Donald Trump. “But until the mid-1970s, government intervention — much less removing an individual’s firearms — because of domestic violence practically did not exist. … Glaringly absent from the historical record — from colonial times until 1994 — are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.”

This is what the Supreme Court has wrought, with its maniacal focus on originalism and its even more blinkered insistence that the hunt for “original public meaning” must be confined to a search for historical analogues. Never mind that the Founding Fathers didn’t conceive of ghost guns produced by 3D printers, or extended magazines — or rights for women, for that matter.

How absurd is this? Counts recites the historical punishments meted out for wife-beating: a 1672 case in which a man was sentenced to be “whipped with ten stripes” or a provision of the 1870s California penal code that subjected spouse abusers to “not less than twenty-one lashes on the bare back.” Yet surely even the most die-hard originalists would conclude that a modern-day whipping law constitutes “cruel and unusual” punishment under the Eighth Amendment, whatever happened back in the day.

The aftershocks of Bruen are just beginning to work their way through the lower courts; Counts’s ruling might not stand. Even under the high court’s grudging approach to gun regulation, it is possible to uphold this restriction. The court in Bruen emphasized that the Second Amendment protects the right of “ordinary, law-abiding, adult citizens” to carry guns outside the home. Someone arrested for assaulting an intimate partner and subjected to a protective order issued by a judge is neither ordinary — let’s hope — nor law-abiding. And, as the Justice Department argued in the Perez-Gallan case, the Second Amendment was “adopted against a historical backdrop that allowed disarming dangerous persons.”

But the evidence of fallout from Bruen is alarming. Last month, a federal judge in New York invalidated a state gun law passed in the aftermath of Bruen that restricted guns at summer camps, among other places; he reasoned that there weren’t such camps in Colonial times. In September, Counts struck down a federal law that prohibited those indicted on felony charges, but not yet convicted, from possessing guns. “There are no illusions about this case’s real-world consequences — certainly valid public policy and safety concerns exist,” he acknowledged. “Yet Bruen framed those concerns solely as a historical analysis. This Court follows that framework.”

I wrote after the summer camp ruling that this was “originalism as parody.” But that understated the situation. This is originalism as insanity.