The Second Amendment’s Second Sex

abstract. This Essay explores how the Supreme Court’s Second Amendment doctrine perpetuates gender hierarchies and a male monopoly on lethal self-defense. It critiques the narrow “true man” framing that ignores women’s experiences and advocates for a justice-centered framework that incorporates power and privilege into the gun-rights discourse.

Introduction

In The Second Sex, Simone de Beauvoir explores the subjugation of women throughout history and around the world.1 Central to women’s secondary status, for de Beauvoir, is that men are the standard against which women are constantly considered and compared.2 Man is, in essence, the default—and woman is the second sex.3

This phenomenon has appeared—and continues to appear—in the Supreme Court’s framing of Second Amendment rights. In District of Columbia v. Heller, the Court declared, for the first time, that the Second Amendment protected an individual right to keep and bear arms, grounded in the right to self-defense.4 The Court emphasized the importance of the right to an operable handgun in the home to “stop intruders.”5 This frame reads, superficially, as gender-neutral. But in reality, it codifies the “true man,”6 armed and ready to thwart wrongdoers. This, in turn, creates a default Second Amendment right centered around a stranger-danger type of self-defense that is more beneficial for men—primarily white men7—and more dangerous for women.8

Prioritizing this narrower type of self-defense ignores the fact that women are at greatest risk from people they know and in private settings like the home. The result is second-sex expansionism, where a doctrine covertly undergirded by the logic of stranger-danger self-defense allows the Court to invoke the helpless woman to justify expanding the right’s scope—all while ignoring the increased danger this imposes upon women through weakened gun laws and a gendered self-defense standard with minimal practical utility. In each of the Supreme Court’s recent Second Amendment cases, women and gender stereotypes were operationalized to support the outcomes.9

Facially, there is nothing that limits a woman’s ability to defend herself from harm simply because she knows her assailant. However, between the heroic white male archetype of Second Amendment exercise10 and imbalanced gender roles within relationships,11 women face an uphill battle if they wish to use firearms to combat domestic violence. Courts are less likely to deem justified women’s exercise of their Second Amendment rights against their abusers, despite growing legal support for the possession and use of firearms generally. History is fundamental to this incongruity.

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court explicitly rejected the analytical consensus in the lower courts,12 ushering in a text, history, and tradition test that has extended the right outside the home and into the public sphere.13 But, as de Beauvoir emphasizes, historical structures and values continue to influence how we view the rights, power, and privilege of women today.14 The Court’s concentration on history places undue significance on an era in which women were relegated to little more than property.15 It also obscures the extent to which those historical views influence contemporary gender norms. When women fail to conform to historical stereotypes—which characterize men as protectors and women as in need of safeguarding—their actions are more likely to be viewed with antipathy.16 Veneration of the past only exacerbates the risk of cementing women’s subjugated and marginalized status. This makes a gender-conscious lens especially valuable in interrogating how a standard that centers men—especially white men17—limits the ability of women and racial minorities to exercise their right to armed self-defense.18

The first opportunity for the Court to apply its new history-centered test came in United States v. Rahimi, which considered 18 U.S.C. § 922(g)(8), a federal law prohibiting access to firearms for individuals under a domestic-violence restraining order.19 Though violating the firearms prohibition is a criminal offense, the initial restriction stems from a civil finding that an individual poses a credible threat to the safety of an intimate partner or child.20 The case created tension between the Court’s fondness for celebrating the Second Amendment’s supposed benefits for women and the fact that the presence of a firearm in a domestic-violence incident makes it eleven times more likely that a woman is killed by her abuser.21

Since domestic violence against women was hardly seen as a problem historically22—let alone a problem warranting government intervention—a strict application of Bruen would find the law unconstitutional.23 Ultimately, though, the Supreme Court upheld § 922(g)(8), concluding that an “individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”24 Rahimi’s perhaps surprising conclusion resulted from a change in the Court’s approach: “[T]he appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation’s regulatory tradition.”25

One view of Rahimi is as an effort by Chief Justice Roberts to rein in the chaos sewn by Bruen and, perhaps, as a reticent recognition of the dangers of limiting policy solutions to this country’s gun-violence epidemic to those in place during a time of “muskets and sabers.”26 But a slight tilt of the head could just as easily reveal an opinion that says this Court does not want this individual—Mr. Rahimi—to have a firearm, but might hold otherwise with a more favorable challenger. In this light, Rahimi does little more than continue the Court’s pattern of determining who can exercise their Second Amendment rights and in what ways. Said differently, Rahimi is but another case that declares good guys should have guns and bad guys should not. Aside from being detached from reality, this approach continues to have significant implications for women, racial and ethnic minorities, and efforts to mitigate the country’s lust for incarceration. Upholding the federal law is a step in the right direction, but, as Justice Jackson aptly stated, “it is becoming increasingly obvious that there are miles to go.”27

This Essay proceeds in three Parts. Part I compares Bruen and Rahimi to explore how the Court twists and contorts history on a whim. The Court’s departure from Bruen just two years later creates more questions than answers, including questions about the state of Second Amendment doctrine moving forward, the Court’s commitment to originalism, and the continued use of history to shroud the modern-day plight of the people the Court appropriates for its preferred outcomes. Part II explores how the Court’s Second Amendment jurisprudence contemplates a specific type of self-defense—stranger danger—that leaves women and people of color less capable of exercising the right. In the face of the uncertainty that persists in Rahimi’s wake and the narrow Second Amendment right as currently constructed, Part III offers a justice-centered framework to analyze gun violence and Second Amendment doctrine. Taking lessons from the reproductive-justice movement, this justice-based lens emphasizes the role of power and privilege to critique the current Second Amendment methodology while broadening the scope of what qualifies as a gun-violence policy. Anticipating that history will continue to feature prominently in the Court’s jurisprudence, Part III then briefly proposes a better way to use the past that highlights, rather than ignores, the harm and suffering experienced by marginalized communities.

I. history’s perils28

Rahimi’s facts illustrate the challenges of strictly applying Bruen’s historical test.29 That is, unless you are Chief Justice Roberts. As he saw it, Bruen’s chaotic aftermath in the lower courts was merely because “some courts have misunderstood the methodology of [the Court’s] recent Second Amendment cases.”30 Apparently the same can be said for Justice Thomas, the author of Bruen and the lone dissenter in Rahimi.31 Whether one shares the view of Professor Harawa—that this is nothing more than judicial gaslighting32—or sees this as the Court simply etching out the contours of a newly minted test, there is plainly inconsistency between Bruen and Rahimi. However, this Part will point to the commonalities between Bruen and Rahimi, such as the “good guys with guns versus bad guys with guns” narrative, which may indicate that the Court was most concerned with this specific challenger having a firearm. Moreover, even if Rahimi becomes the new standard-bearer, the central role of history will continue to shroud the influence of contemporary gender stereotypes by juxtaposing women’s current social standing with the even more conspicuous inequalities of the past.

A. Rahimi’s Reluctant Embrace of Bruen

Under Bruen, the need for historical analogues seemed especially important for societal problems that have “persisted since the eighteenth century.”33 In these circumstances, Bruen held that the absence of similar historical regulations is substantial evidence that the challenged law is unconstitutional.34 Domestic violence is the focus of § 922(g)(8) and, as one district court noted, “[d]omestic violence, or violence against anyone for that matter, is not just a modern problem.”35 Historically, domestic violence was seen as a private matter where “it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”36 The Fifth Circuit echoed this sentiment in its reading of Bruen, highlighting that it could no longer consider societal benefits as it had in previous cases upholding § 922(g).37 Instead, the Fifth Circuit followed the Supreme Court’s lead by distinguishing each historical law that the government offered as analogous support.38

The Chief Justice, however, believed these “mistaken” interpretations of Bruen are no different than “applying the protections of the right only to muskets and sabers.”39 If, as Bruen clearly states, the Second Amendment’s historically fixed meaning does not apply only to those arms in existence at the Founding,40 then the laws available for regulation similarly cannot be “trapped in amber.”41 Instead, Rahimi holds, “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.”42 The majority reiterates that the questions of “[w]hy and how the regulation burdens the right are central to” the Second Amendment inquiry, but that courts must apply a “relevantly similar . . . ‘balance struck by the founding generation to modern circumstances.’”43

Under this rendition of the historical-analogue inquiry, the majority found that two past legal regimes provided support for restricting firearms for individuals under domestic-violence restraining orders.44 First, the majority characterized surety laws as a violence-prevention tool that authorized judges to require “individuals suspected of future misbehavior”—including, but not limited to, spousal abuse and misuse of firearms—to post a bond that would be forfeit if they broke the peace.45 Second, affray laws—or “going armed” laws—prohibited individuals from going armed with dangerous or unusual weapons to terrify the public.46 The majority held that these laws, taken together, “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”47

Justice Thomas objected to the majority’s contention that surety and affray laws satisfy Bruen’s requirements.48 Indeed, one of the more perplexing aspects of Rahimi is its reliance on the very historical laws that the Court downplayed in Bruen. The Bruen majority—which included Chief Justice Roberts and Justices Alito, Barrett, Gorsuch, and Kavanaugh—said those same historical restrictions did not impose a substantial burden on public carry to support New York’s licensing regime, asserting there was no evidence showing authorities even enforced the laws.49 Justice Thomas continued to minimize the relevance of surety laws, categorizing them as little more than fines on certain behavior and a “far less onerous burden” than § 922(g)(8) since they allowed people to maintain possession.50 Bruen also insisted that surety laws lacked import because they overlapped with criminal statutes, which was again a key component of Justice Thomas’s Rahimi dissent and of lower courts’ decisions striking down § 922(g)(8).51

For Justice Thomas, affray laws did not satisfy Bruen because they had “a dissimilar burden and justification.”52 He notes that these laws were about carrying “dangerous and unusual weapons” that caused a public nuisance, and that the burden was therefore narrower and not related to interpersonal violence.53 Justice Thomas uses the potential for imprisonment, highlighted by the majority, to distinguish the two laws: “Affray laws were criminal statutes that penalized past behavior, whereas § 922(g)(8) is triggered by a civil restraining order that seeks to prevent future behavior.”54 More pointedly, he cites Bruen directly to question how the majority could hold that these laws support a complete ban on firearms when the Court ruled they failed to justify restricting a narrower practice—public carry—just two years prior.55

If one sets aside the analytical eyesore that is Bruen, any indignant tone in Justice Thomas’s Rahimi dissent is understandable. After being tasked with writing for the Court in Bruen—the most consequential Second Amendment case since Heller—he had his own opinion “Robertsplained” to him.56 Many Court observers and Second Amendment scholars, Professor Harawa among them, agree with Justice Thomas that Rahimi is clearly not a strict application of Bruen.57 Moreover, Thomas’s dissent sounds the alarm that a “principle-based approach,” which differs significantly from the regulation-based historical test he laid out in Bruen, will “hollow out the Second Amendment of any substance.”58 His concern is that the Court’s decision in Rahimi will enable the government to disarm anyone they deem a danger because “[n]early all firearm regulations can be cast as preventing ‘irresponsible’ or ‘unfit’ persons from accessing firearms.”59

In fact, he may be right. Rahimi may ultimately stand for the Court’s continued support for the “good guys with guns versus bad guys with guns” narrative that so flagrantly permeates the Court’s Second Amendment jurisprudence, as opposed to some principled evolution of Bruen. The true explanation for the Bruen breakup could simply be that Chief Justice Roberts and Justices Alito, Barrett, Gorsuch, and Kavanaugh were troubled by the idea of this particular person having a firearm. Mr. Rahimi would not be atop anyone’s list of the model for a sympathetic party. Some Justices’ concerns about him became clear at oral argument, with the Chief Justice questioning how the defendant’s own attorney could muster any argument that his client was not a dangerous person.60 It seems that the “good versus bad” framework for determining who gets to exercise their Second Amendment rights almost certainly remains common ground among the Bruen majority.

The fissure that left Justice Thomas flying solo this time around may have less to do with the “gaslighting” Professor Harawa suggests, and more to do with Justice Thomas’s insistence on using the criminal justice system to restrict Mr. Rahimi’s firearm access while the others are satisfied that, at least in this case, the civil process is sufficient.61 This distinction between criminal and civil proceedings should not, however, be read as indicating a desire—or even willingness—on the majority’s part to restrict the role of incarceration in responding to gun violence.62 Rahimi’s narrow scope means that another case, perhaps one that introduces more doubt as to whether the evidence sufficiently proves a “credible threat to the physical safety” of a partner, may find more sympathetic Justices. This should give Justice Thomas some solace that he may not be left in solitude in future cases.63

Though Rahimi may be praised as an improvement on Bruen,64 the analytical whiplash between the two cases—on top of the post-Bruen mayhem in the lower courts65—accentuates the pitfalls of relying on history.66 As Justice Jackson points out in her concurrence, this methodology is burdensome and has left lower courts “diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them.”67 The disagreement within the Bruen majority—along with the peculiarity of three avowed originalists feeling compelled to write concurrences reiterating their commitments to concentrating constitutional analyses around history—also casts doubt on the broader claim that one can objectively ascertain a single, true meaning that reflects what the masses thought centuries ago.68 It is this supermajority’s continued devotion to history that should give pause to those concerned about gun violence, domestic violence, and the rights of women and minorities, as well as those eager to celebrate a rare victory at the nation’s highest court.

B. The Veil of History69

The faulty logic of limiting policy options for contemporary societal issues to those available in the eighteenth century is obvious, especially when it comes to problems, like gun violence, that have been revolutionized by technological advances.70 Scholars have used Rahimi as an opportunity to note that centering the past not only glosses over the drastic difference in weaponry and gun violence, but it also gives overwhelming weight to a time when women, among others, had virtually no rights.71 Beyond “orient[ing] the inquiry around the expectations and decisions of white, male property owners,”72 centering the past can cloak existing subjugation. Time spent highlighting and critiquing women’s past status is time not spent correcting current gender inequalities. And as Professor Reva Siegel explains, a preoccupation with condemning historical practices can serve to “exonerate practices contested in the present, none of which looks so unremittingly ‘evil’ by contrast.”73 Bruen’s strong-form originalism—which isolates history as the sole arbiter of constitutional determinations—acts as a pillory that fixates our view on a deeply troubled past.74 Whether in the courts, media, scholarship, or public discourse, this distracts from and inherently minimizes existing gender inequalities.75

Meanwhile, the “clarification” offered by Rahimi still enables claims of judicial objectivity and restraint through a jurisprudential sleight of hand that keeps people’s sights on the country’s problematic past. Limiting domestic-violence solutions to those in place during the time of coverture, when women were considered property, is not only an affront to hard-fought progress toward gender equality; it also diverts energy and resources away from continuing the fight to address the contemporary plight and subjugated status of women.76 It supports the narrative that modern women have equitable access to an expansive Second Amendment, when in reality women’s ability to exercise their right to armed self-defense—or any right, for that matter—is still constrained by gender norms. Indeed, courts’ supposed deference to history conceals the past’s persistent influence on contemporary gender stereotypes that, in turn, impact today’s judicial interpretations.

Take, for example, Judge Ho’s concurrence in the Fifth Circuit’s ruling in Rahimi. Despite the alleged centrality of history, Judge Ho parroted the baseless notion that women routinely bring false claims of harm or threats to support his belief that women can, do, and would continue to use domestic-violence restraining orders as a tactical device in divorce proceedings.77 He agreed with the majority that these orders are issued without any actual threat of danger and questioned whether judges were willing and able to prevent women from manipulative abuse or if they would “enter protective orders automatically.” 78 And lest there be any thought that these comments were gender-neutral, Judge Ho quotes another judge who sympathizes with men losing their constitutional rights without justification: “Your job is not to become concerned about all the constitutional rights of the [defendant] you’re violating as you grant a restraining order. Throw him out on the street, give him the clothes on his back and tell him, ‘See ya’ around.’”79 Justice Alito raised similar concerns at oral argument, invoking pervasive and inaccurate “he said/she said” scenarios that have no tie to historical understandings of Second Amendment protections.80

This demonstrates that the trouble with centering history in Second Amendment analysis stretches beyond the cavernous gap between muskets and bump-stock-equipped AR-15s. Whether Rahimi mitigates some of those harms remains to be seen. In truth, the disingenuous claim that Rahimi follows the Court’s own commands in Bruen should serve as a warning for anyone hoping the Court will stick to Rahimi’s “principles-based” approach. Far from ensuring the continuity and clarity that lower courts, defense attorneys, policymakers, and the public desperately need, Rahimi exemplifies the Court’s willingness to pick and choose their preferred firearm regulations and plaintiffs under the guise of historical restraint. The Court’s willingness to prevent Mr. Rahimi from regaining a legal right to carry firearms should not be heralded as a return to sanity when the outcome could just as easily serve as a signal to Second Amendment expansionists to bring better clients. And when—not if—this does occur, it will be important to watch for whether the Court employs a selective history of racism and female fragility to bolster a ruling that expands the Second Amendment. If so, the Court will almost certainly omit mention of these marginalized populations’ current suffering from gun violence and the Court’s role in exacerbating their pain.

II. perpetuating subjugation through stranger-danger self-defense81

Women have been used selectively to help justify expanding the Second Amendment’s scope—a dynamic that is eerily similar to what Professor Harawa describes with race.82 Courts’ use of women has helped buttress the “good people with guns versus bad people with guns” narrative, as well as the fetishization of firearms in Second Amendment jurisprudence.83 Proponents of a broad constitutional right to firearms often resort to fearmongering to justify their position, describing a dangerous world full of armed criminals to argue that women must be empowered, if not encouraged, to possess firearms for self-defense. But women are—and, as Rahimi urges us to remember, have always been—at the greatest risk from those they know.84 Recognizing the Second Amendment’s self-defense core as a narrower security against stranger danger reveals the compounding harms to women that arise from Second Amendment expansionism. A Second Amendment jurisprudence that enables firearm proliferation places women at increased risk of harm while doing virtually nothing to help women against known assailants. The Supreme Court has practically guaranteed this perverse outcome by focusing on history while remaining indifferent to the realities and lived experiences of the marginalized groups—often women and Black people—it parades as the beneficiaries of its rulings.85 As explained below, when women do exercise their right to armed self-defense against their most common threat—that is, known assailants—their actions are far less likely to be seen as justified, and their Second Amendment rights are thereby condemned to second-class status.

A. The Sexism of Second Amendment Expansionism86

Heller was the dawn of a new era for the Second Amendment. It vindicated individuals’ “right to possess and carry weapons in case of confrontation,” grounded in the preexisting right of self-defense.87 Heller’s references to home intruders, burglars, drunken hooligans, and fleeing attackers strongly suggest the types of confrontation the Court envisioned: stranger danger.88 While a broad animating value such as self-defense has universal relevance, aiming it at strangers narrows the right by imbuing it with the “good versus bad” dichotomy that is more apt to benefit white men.89 Determinations of who poses a threat incorporate social biases grounded in racism and sexism that have existed since the Founding.90

By repeatedly stressing the importance of the Second Amendment to defend against unknown criminals, the Court ignores that for women, the threat is coming from inside the house. Congress explained that § 922(g)(8) was vital because “domestic violence is the leading cause of injury to women in the United States between the ages of 15 and 44.”91 From 2010 to 2014, 92.6% of intimate-partner violence emergency-department visitors were female,92 while nearly 60% of female homicides in 2021 occurred in a home.93 Though intimate-partner violence data likely does not capture the full scale of the problem,94 intimate-partner violence was almost six times more likely to be the precipitating circumstance of homicide for women than for men.95

We also know that firearms play a significant role in the violence perpetrated against women. A woman is eleven times more likely to be killed if their abuser has access to a gun,96 which explains why the vast majority of women killed are killed with firearms.97 Homicide is also the leading cause of death during pregnancy and the postpartum period,98 with most deaths linked to firearms and intimate-partner violence and Black women the most frequent victims.99 The overlapping increases in firearm possession, female homicides, and pregnancy-associated homicides from 2019 to 2020 provide further evidence of positive correlation between the presence of guns and female homicide.100 Outside the Second Amendment context, the Court has explicitly acknowledged the “deadly combination” of domestic violence and firearms,101 stating that the difference between a battered woman and a dead woman is often the presence of a gun.102

But firearm-related intimate-partner violence extends well beyond fatalities. Firearms can be used to intimidate and coerce through warning shots, threats of use, or mere display, enabling coercive control without any evidence of physical abuse.103 Women are more than twice as likely to be victims of nonfatal firearm abuse,104 and the lack of physical evidence can make it even more difficult to receive assistance from law enforcement or to legally use a firearm for self-defense.105 Rahimi’s repeated emphasis that the decision was only relevant for an “individual found by a court to pose a credible threat to the physical safety of another” could create difficulty for victims that suffer from emotional and psychological torment, threats, and fear, but carry no visible bruises.106

Despite this research, stranger danger remains the dominant narrative employed by the Court to justify expanding the Second Amendment. For example, in McDonald v. City of Chicago, the majority specifically referenced arguments that women should have access to firearms because they are especially vulnerable to violent crime.107 The Bruen majority continued the trend by echoing the importance of being armed in public due to the dangers that lie outside the home.108 In Justice Alito’s Bruen concurrence, he employed a story of a woman who was saved from an assault by an armed bystander, before again referring to women’s increased risk of attacks.109 This narrative helps perpetuate the false “good versus bad” dichotomy that began with Heller’s emphasis on “law-abiding citizens,”110 while simultaneously undermining the validity of women using firearms against their abusers. Despite Bruen’s hyperfixation on historical laws, Justice Alito made sure to highlight the right of modern citizens to protect themselves against criminals, going so far as to suggest people cannot be required to rely on law enforcement for their protection.111 Professor Melissa Murray points out that Justice Alito seems to believe the state has failed to protect its citizens and, in response, the Court must strengthen the Second Amendment right to “enable men to take over—indeed, retake—the essential state functions.”112 This male-centric call to arms that Professor Murray highlights, combined with the stranger-danger self-defense framing, casts doubt on whether women are truly able to exercise their right to self-defense in the scenarios where it would be most helpful.

B. Second-Class Self-Defense113

The extreme disconnect between the Court’s invocation of women and their lived reality reflects historically embedded gender norms.114 The male monopoly on lethal self-defense has endured, especially in the context of intimate relationships, because the perception of man-as-protector and woman-as-protected persists.115 However, the point is not to suggest a cause and effect between the Supreme Court’s Second Amendment jurisprudence and women’s inability to use firearms against their abusers. Rather, second-sex expansionism demonstrates that second-sex status and stranger-danger self-defense work synergistically to perpetuate gender hierarchies and limit women’s rights. Though domestic violence was previously hidden behind a veil of traditional family values,116 gender norms now perpetuate women’s secondary status by admonishing them for failing to utilize perceived alternatives and not complying with “proper” self-defense.117

Self-defense against domestic violence has been legally perilous for women historically,118 but the strong support for lethal self-defense, led by the nation’s highest court, should have drastically altered the legal landscape. Yet, women’s right to armed self-defense has been diluted by the adjudicatory discrepancies for women using violence to defend themselves against their abusers. The case of Marissa Alexander, a Black woman, poignantly illustrates this reality. Alexander was sentenced to twenty years in prison for firing a warning shot into the ceiling when her estranged husband—who had previously beaten her to the point of hospitalization—tried to barricade her in the bathroom in a fit of rage and refused to leave.119 Alexander was trapped in her own home with an abuser who had previously threatened to kill her, and she used her lawfully owned firearm in a manner that left the man unharmed.120 Yet she faced two decades behind bars for defending herself. The injustice of Alexander’s story is corroborated by empirical evidence showing women are less capable of exercising their right to self-defense without facing criminal liability. One study of cases in Florida—Alexander’s home state—between 2005 and 2013 found that cases involving domestic violence had higher conviction rates for women.121 Another study examining stand-your-ground cases tied to intimate-partner violence found that among those convicted, women tended to face longer sentences than men.122

This legal landscape presents a harrowing reality for those in abusive relationships. Fleeing can be difficult for many reasons,123 yet women have not found the legal support for armed defense against abusers that might be expected in a country that values guns so highly. The incongruence with the Second Amendment’s evolution further supports the claim that persistent gender biases and stranger-danger self-defense likely contribute to women’s inequitable access to the very constitutional right they are repeatedly exploited to expand.124 Thus, the judiciary penalizes women because they do not conform to the “true man” archetype of armed self-defense.125 And unfortunately, Bruen and Rahimi give little reason to believe this is likely to change.

Rahimi’s connection to domestic violence created an opportunity for the Court to acknowledge, grapple with, or ameliorate the impact of gun violence on women, especially in the context of domestic violence. But women are curiously absent from the discussion—just as Professor Harawa so clearly demonstrates with Black people.126 Despite the appearance of a shift from Bruen to Rahimi, the Court continues to ignore the realities of this country’s gun-violence epidemic by prioritizing the past and glorifying firearms as the best option for combating gun violence. The notion that guns stop gun violence is empirically false.127 Moreover, highlighting stranger-danger self-defense and second-sex gender norms reveals that an increase in firearms, including among women,128 will inevitably fail to address firearm-related domestic violence for women or improve women’s ability to defend themselves. Viewed through an intersectional lens, this creates the greatest risk for Black women, who already experience intimate-partner violence at higher rates.129 The coalescence of the gun-violence epidemic and the structural inability of women and racial minorities to exercise their right to self-defense equitably has made legal alternatives increasingly essential. Domestic-violence restraining orders, together with the federal firearm restriction that accompanies them, provide one of those alternatives. While § 922(g)(8) is far from a perfect solution, relying on the criminal justice system to right these wrongs—as recommended by Justice Thomas and lower-court judges130—would be a grave mistake given that institution’s longstanding struggles with racism and sexism.

III. toward a firearms-justice framework131

Women’s second-class access to self-defense illuminates the chasm between the theoretical world within which the Supreme Court believes its rulings exist and the world in which impacted people actually live. The mere declaration that we are all equal before the law does not make it so. If the sentencing of domestic-violence victims was not persuasive, the distorted notion that a Supreme Court Second Amendment ruling levels the playing field is easily debunked by mentioning just a few of the Black men unjustly shot for allegedly having a firearm: Philando Castile for having a legal firearm in his glovebox,132 Tamir Rice for holding a toy gun,133 and John Crawford III for holding a pellet gun that the store was selling.134 Outside of the Court’s “marbled halls,”135 power and privilege play an outsize role in shaping if, when, and how someone can exercise their rights.136 For example, women who are victims of domestic violence are penalized for defending themselves because they are presumed to have the power and privilege to leave.137 A firearms-justice framework takes a population-level perspective to shine a light on the systemic barriers limiting women’s ability to choose whether to leave. Further, this framework confirms that the existence of a Second Amendment right does nothing to negate the social, political, and economic inequalities that determine who is able to exercise that right fully.138 This contrasts with the Court’s analytical approach, which typically focuses narrowly on the individual challenger and whether their asserted right falls within the Second Amendment’s scope.139

Individuals do not exercise their rights in a vacuum. Women’s inability to exercise Second Amendment rights and the systemic factors that limit their purported freedom to leave severely constrain their ability to protect themselves from their greatest threats. It is in these circumstances, when people are unable to protect themselves from the risks and threats of others, that the government has greater authority to act. As a result, this population-level, public-health-informed justice view should also expand how we think of historical laws and the information they provide today. If we are stuck sifting through historical restrictions, it would be far more logical to broaden the scope of relevant laws to include those that, while unrelated to firearms, relate to the government’s infringement on constitutional rights in the name of protecting others from harm.

A. Against the Status Quo140

Professor Harawa has expertly highlighted that race is a critical factor in determining the extent to which Second Amendment rights are fully available.141 Perversely, the lenses of both race and gender reveal that the people most imperiled by expansive Second Amendment interpretations are also those most at risk of being prosecuted for attempts to exercise the very same self-defense principles underlying those rights.142 Women in abusive relationships should have an enhanced claim to self-defense, yet judges and juries are often unsympathetic. State statutes allowing reduced sentences for crimes arising from domestic violence have not made compassion easier to find. For example, in an early attempt to apply New York’s Domestic Violence Survivors Justice Act, a judge found that, though there was evidence of abuse, the abuse was not “substantial,” nor was it “a significant contributing factor” to the victim’s killing of her abuser.143 Under the new state law, the defendant could have been given as little as probation but received an eight-year sentence.144 For her, as for others, increased access to firearms, even with domestic-violence sentencing flexibility, is insufficient to address the harms women suffer from firearms.

The suggestion that domestic-violence victims should seek alternatives to lethal force directly contradicts the premise underlying self-defense, as codified in the castle doctrine, stand-your-ground laws, and the Bruen decision. These pillars of self-defense are intended precisely to assert that although you can try alternatives, the law should not require that you try them before defending yourself.145 This lends credence to the claim that the Second Amendment is a masculine right meant to ensconce a true man’s ability to use lethal force to protect himself, his property, and even his honor.146 Women are expected to flee, but legally requiring men to do so would force them to tarnish their own masculinity.147 As Professor Mary Anne Franks observes, even in the paradigmatic scenario of rape, “women are not encouraged to fight back against rapes by husbands, boyfriends, friends or acquaintances; instead, they are taught to anticipate and minimize the chances for sexual assault by constraining their mobility, clothing choices, conduct, and recreational activity.”148 While men are often valorized for standing their ground in the face of danger, judges and juries often hold biases against women subjected to domestic violence because they view those women as contributing to their own harm by maintaining contact with their abusers.149

A justice-based view also forces us to consider why women who stand their ground in the face of domestic violence do not pursue alternatives. Factors such as finances, housing, childcare, transportation, and healthcare shape what options, if any, are truly available for women to choose.150 Other considerations, such as the safety of women and their children,151 are also a constant and significant determinant of not just what options are available but also when they are available.152 Leaving is not a decision but a process. As Rachel Louise Snyder explains, “[W]e mistake what we see from the outside as her choosing to stay with an abuser, when in fact it’s we who don’t recognize what a victim who is slowly and carefully leaving actually looks like.”153 Interrogating the underlying causes that make women’s self-defense against abusers so elusive further underscores the inadequacy of an expansive Second Amendment to solve the very problems it creates for women.

Understanding these factors reveals that the government’s actions and inactions play a significant role in shaping the options available to a woman. Instead of punishing women for being what Professor Leigh Goodmark calls “imperfect victims”154—failing to fit into the criminal legal system’s preferred “stereotypes”155—the government should be implementing policies that make it easier for women to make the choices they want in response to domestic violence. Equitable pay, free childcare, affordable housing, universal health care, paid leave, and a culture that believes women would go a long way in providing better opportunities for women to choose what is in their best interest. With racial disparities in these categories, it should come as no surprise that women of color are disproportionately seen as “imperfect victims.”156 Consequently, criminalization has actually increased the rates of arrest, prosecution, conviction, and incarceration of the victims, with women of color experiencing disparately higher rates of incarceration.157

Further, the factors that can prevent women from leaving might encourage them to use civil tactics in order to maintain access to an abusive partner’s financial support, the partner’s healthcare through their employment, or free childcare. Women’s fear may also be tied directly to the firearm as opposed to the individual, due to fluctuations in temperament caused by the partner’s mental-health conditions and treatment regimens, which themselves depend on external factors such as insurance coverage and preapproval. Women can also experience concerns about a partner’s suicidality or the risks that accompany engaging law enforcement and criminal processes, especially if a Black man is involved.

Better recognition of the context surrounding the “choices” made—and not made—with regard to both domestic violence and gun violence should make it apparent that domestic-violence restraining orders and firearm restrictions are merely part of the solutions needed. Unlike Professor Harawa, I do not see Rahimi as “endors[ing] the use of the criminal legal system, with all of its built-in biases, as a tool to regulate firearms.”158 Though a criminal defendant ultimately lost, the majority upheld a civil remedy. Justice Thomas’s dissent, meanwhile, specifically references the use of “criminal prosecution” for disarming people,159 implying its superior constitutionality because its procedures safeguard fairness. The implication that criminal proceedings ensure impartiality belies the consistent injustices that have been described here and by Professor Harawa. Indeed, these data, along with the relatively minimal increase in criminal-defense success after Bruen, demand more than hoping the addition of historical arguments to the criminal-defense toolbox will mitigate this country’s mass-incarceration problem.160

To be sure, § 922(g)(8) is far from perfect. For example, it does nothing to alter community threats and violence that may lead someone to continue to arm themselves. Nevertheless, it is still one step removed from criminalization that can instantly result in incarceration. In fact, it can prevent at least some individuals from rotting in prison awaiting trial because they are too poor to afford bail.161 It is perplexing that Justice Thomas decries a law for firearm removal while supporting a criminal approach that Judge Ho found more appealing because “the government can detain and disarm, not just after conviction, but also before trial.”162 Professor Harawa’s description of the discriminatory impact of § 922(g)(8) is absolutely troubling; however, striking down a civil mechanism for firearm removal does nothing to remedy the injustices in the criminal system that Judge Ho and Justice Thomas are so eager to rely upon. Unfortunately, if Mr. Rahimi had been successful in “exploiting Bruen’s methodology,”163 there is little reason to think we would have seen any reduction in criminalization of communities of color generally or Black men in particular.

If the goal is to diminish gun violence, protect victims of domestic violence, and reduce the country’s reliance on mass incarceration, civil remedies such as § 922(g)(8) are important and still better than the arrest, detain, and imprison approach suggested by Justice Thomas and Judge Ho. Similarly, more guns will not serve as a solution to the disparities in gun violence, domestic violence, or the injustices in our legal system. The point is to change the structures and systems that force women and people of color into a “catch-22,” where they can either continue to suffer while the legal system turns a blind eye or can arm themselves and hope they are not criminalized for exercising the same rights available to others. A firearms-justice framework, therefore, provides a lens through which to explore alternative solutions beyond retroactive criminalization and academic constitutional debates. Through a justice-based lens, gun policies can be found in criminal-justice reform, Medicaid expansion, minimum-wage increases, green-space improvements, urban-blight reductions, climate-change mitigation, and democratic reforms such as protecting and expanding voting rights and eliminating gerrymandering.

B. A Better Bruen, If We Must164

A justice-based lens clarifies that obstacles prevent women from having the power and privilege to choose if, when, and how to leave abusive relationships or to exercise their right to armed self-defense. Moreover, by taking a population-level perspective—similar to a public-health approach165—it becomes clear that women are unable to address the systemic barriers and enduring gender norms on their own. It is precisely in these situations—where citizens are at risk of harm from others and are unable to protect themselves—that states have greater authority to exercise their police powers to protect public health, safety, and welfare. The Court’s preoccupation with the challenger in the courtroom allows it to frame the case as a conflict between an individual who simply wants the ability to exercise armed self-defense and an oppressive government. Since women are at greater risk if their violent partner has access to a firearm, it is more appropriate to view this as a conflict between the rights of the abuser and those of the victim. The constitutional question, then, should be not only about the scope of the Second Amendment’s protections but also about the scope of the state’s ability to protect its citizens.

Despite Rahimi’s facts shining a spotlight on Bruen’s many flaws, there was little hope this Court would overturn or drastically alter its holding. History was still the star of the show. If we are stuck with history, incorporating a population perspective demonstrates that the Court’s current use of history misses the mark by unnecessarily narrowing the relevant history to ancient gun laws. As firearms-justice dovetails with public health, it becomes apparent that historical laws unrelated to firearms—for example, laws authorizing government-imposed quarantines—provide more logical analogues.

History does indeed give some insight, but it need not come from altering what surety laws tell us from one case to another. For example, the opinions striking down § 922(g)(8) were quite troubled by the weight given to a civil, rather than criminal, proceeding.166 Judge Ho distinguishes between the authority to restrict constitutional rights for criminals as opposed to “innocent, law-abiding citizens” with the example that “the government cannot deprive innocent citizens of their liberty of movement.”167 Unfortunately for Judge Ho, his example actually refutes the very point he is trying to make. Government-mandated quarantines not only restrict the right to move freely; they do so after a civil proceeding in which an individual’s fundamental rights may be limited despite committing no crime and injuring no one.168 Quarantines, which predate the Founding, are based on the potential risk a person poses to another.169 Therefore, quarantine laws provide a historical analogue supporting § 922(g)(8) that satisfies both the “how” and the “why” aspects of Bruen. Moreover, invoking quarantine helps reveal the relevance of legislative responses to public threats.

In Bruen, the Court includes a caveat to its dictate to search for historical analogues for “cases implicating unprecedented societal concerns or dramatic technological changes [that] may require a more nuanced approach.”170 It seems inarguable that the possibility of shooting thirty-six people in thirty seconds would have been “unimaginable at the founding,” as would efforts to combat racial and gender disparities in gun violence.171 Between the Founding and Reconstruction, contagious diseases posed a much graver danger than guns to the public and the country as a whole, such that historical laws restricting individual rights are much more likely to be justified based on infectious disease than on gun violence.172 This approach also satisfies the principles-based reasoning in Rahimi while supporting the importance of considering both the government’s means and ends.173

If the country and courts are indeed stuck with Bruen, the case’s historical shackles could still be better aligned with the realities of government authority. Legislatures are permitted to act in response to the public’s needs, not—contrary to the Bruen Court’s implication—to etch out the boundaries of a constitutional right.174 Bruen’s restraints, therefore, are perplexing because legislatures from the Founding to Reconstruction would not have been authorized to pass laws for gun-violence problems that did not exist.175 The historical gun laws are trapped in amber, and it seems impossible to suggest those few laws can be stretched and strained to account for safety measures aimed at mass shootings, firearm-related suicides, large-capacity magazines, hollow-point bullets, bump stocks, or racial and gender disparities.176 Conversely, historical laws unrelated to firearms can inform our understanding of the government’s authority to infringe on individual rights and, therefore, provide on-point analogues for Second Amendment analysis.177 Rahimi’s description of surety laws as a historical tool to prevent “future misbehavior,” including “all forms of violence,” provides precedential support for using history beyond the laws solely focused on gun violence.178

Rahimi may not provide clarity on how Second Amendment challenges will be analyzed, but it signals a flexibility that was imperceptible from Bruen’s rigid and strident tone. The departure of five of Bruen’s signatories to a majority opinion that suggests history is instructive only for guiding “principles” is an opportunity to find a better path forward. To be clear, public defenders have a duty to advocate fervently for their clients, and defendants are understandably concerned with getting out or staying out of prison. Neither have the luxury of taking a long view. Still, there is a risk of missing the forest for the trees. Supporting broad Second Amendment protections based on antiquated laws from the era of slavery and coverture may help a defendant win, but it will not end racist and sexist enforcement discretion or eliminate the judicial biases that plague the legal system.179 We must be wary of perpetuating an unjust system simply because it improves on past prejudices.180 Vigorous advocacy to keep clients out of prison and just constitutional analysis need not be mutually exclusive. Hopefully, the extent of agreement between this Essay and Professor Harawa’s proves this point.

Conclusion

Simone de Beauvoir noticed the parallels between the challenges imposed on women and people of color, remarking how “they praise, more or less sincerely, the virtues of the ‘good black,’ . . . and the woman who is a ‘true woman’—frivolous, infantile, irresponsible, the woman subjugated to the man. In both cases, the ruling caste bases its argument on the state of affairs it created itself.”181 These similarities persist in the context of gun violence, criminalization, and constitutional interpretation. The default stranger-danger self-defense Second Amendment right, as currently construed, is one that benefits white men while exacerbating the harms inflicted disproportionately on women and racial minorities. This fits neatly within what Professor Murray has dubbed the Roberts Court’s “Jurisprudence of Masculinity.”182 As she insightfully explains, this trend “goes beyond prioritizing men and their rights in the constitutional order” and attempts to normalize constitutional analysis that “operates by fundamentally recasting core assumptions in constitutional law in ways that privilege and prioritize men.”183

Rahimi’s lack of clarity ensures that another Second Amendment case will be before the Court sooner rather than later. Seeking justice will again create the dilemma of whether to work within the historically centered analysis of bygone gun laws or urge the Court to chart out a new path. We must be cautious of the consequences that can follow from letting the Court dictate the terms of equality in the context of Second Amendment rights.184 Both this Essay and Professor Harawa’s illustrate that simply ruling that all people have access to this constitutional right does nothing to address the social, legal, and political systems that make equal access impossible. Lest the harm of domestic violence be used to suggest that the inequities described throughout this Essay justify efforts to improve gun access for women, the justice-based view shows this would be a fool’s errand. “Equal” access to Second Amendment protections is insufficient to address the disparities that women—especially women of color—suffer. In other words, this is not an issue of equality, but one of justice.185

Associate Professor, Boston University School of Public Health & Boston University School of Law; Solomon Center Distinguished Visiting Scholar, Yale Law School. Many thanks to Daniel Harawa, whose work I rely upon and greatly admire, for participating in this Exchange. Additional thanks to Julia Geskey and Rachele Lajoie for their helpful research assistance. I am indebted to the editors of the Yale Law Journal for their phenomenal work on this Essay.