Restricting Guns in Cases of Domestic Violence

Current federal and state laws permit firearms restrictions in cases involving domestic violence protection orders, but what restraints are permitted by law and what is permitted under the Second Amendment? Law professor and Second Amendment scholar Jody Madera (Indiana University Bloomington Maurer School of Law) provides critical insights into this complex legal landscape. Intimate partner violence in the United States is surprisingly pervasive, with over one in three women experiencing abuse at the hands of a partner in their lifetime. Compounding that, women are five times more likely to die from domestic violence if their abuser has access to a firearm. Federal law, (18 USC Section 922(g)8, prohibits individuals under domestic violence restraining orders from possessing firearms. However, the pending Supreme Court case, United States vs. Rahimi, is poised to challenge this established legal framework. Prof Madeira explains the pending case, various laws along with the "boyfriend exception," the "stalking gap," and other complexities at the intersection of the Second Amendment and domestic violence protections. 

In Rahimi, the Supreme Court is analyzing whether historical precedent supports contemporary restrictions on gun ownership for those accused of domestic violence. The case pivots on the Supreme Court's application of originalism, an interpretive method that seeks to understand the Constitution based on its original meaning when first written. This approach has been central in recent landmark cases, such as District of Columbia v. Heller (2008) and New York State Rifle & Pistol v. Bruen (2022), which have significantly shaped modern gun rights. The Bruen decision, with its Text, History, and Tradition test, reaffirms the use of historical analysis in evaluating current firearm regulations. Rahimi's argument hinges on the claim that there were no analogous laws in 1791 that deprived individuals of firearms solely based on accusations of domestic violence. This historical inquiry is critical, as it challenges whether contemporary laws align with the original understanding of the Second Amendment.

Professor Madera goes on to explain how civil protective orders operate to restrict guns in DV cases, even without a criminal conviction. These orders aim to prevent further violence even in the absence of or in advance of criminal proceedings. However, concern about overreach or false accusations remain. Prof Madeira breaks down a number due process protections and procedures under various laws and examines some remaining gaps in the framework and ends the conversation with a prediction on the Rahimi decision.

Additional Resources

This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law. 

Related Cases and Videos:

  • NYSRPA v. Bruen (2022) – Supreme Court case which expanded Second Amendment rights outside of the home and established a new Second Amendment test. 
  • Text, History and Tradition Test – Established by the 2022 landmark decision, NYSRPA v. Bruen, the text, history, and tradition test now governs laws restricting the right to keep and bear arms – invalidating any gun laws that fail to meet its standard.
  • District of Columbia v. Heller (2008) – landmark Supreme Court decision that held that the Second Amendment to the U.S. Constitution protects an individual's right to keep and bear arms for traditionally lawful purposes such as self-defense within the home.