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Serving Northern St. Louis County, Minnesota

Turning back the clock

Conservatives on the courts want to return America to the 1700s


Last summer, the U.S. Supreme Court abolished a woman’s right to control her own reproduction. Soon, they may take away a woman’s right to avoid gunfire at the hands of an intimate partner.
In an astonishing decision issued this past week by the Fifth Circuit Court of Appeals, a three-judge panel (including two Trump appointees and a Reagan appointee) ruled that a longstanding federal law that prohibited access to guns by those under restraining orders for domestic violence was unconstitutional. The three judges cited last year’s Supreme Court decision that struck down a New York state requirement that gun owners needed to demonstrate an actual need in order to obtain a concealed carry handgun permit. In the majority opinion in that case, known as New York State Rifle and Pistol Association v. Bruen, the court determined that any restriction on gun laws needed historical context from the period when the constitution was written, as in the late 1700s.
In the late 1700s, of course, wife-beating may have been a social problem, but it certainly wasn’t a legal one. In every state at the time, men had an absolute legal right to beat or otherwise abuse their wives, a right that they continued to maintain for another century in most parts of the country.
So, based on the historical context, men wouldn’t have been subject to restraining orders for domestic violence (or lose access to a firearm) because domestic violence was legal activity at the time. Therefore, we can’t protect women from gun violence at the hands of domestic partners in 2023 because wife beating was legal 200 years ago. That’s the state of conservative jurisprudence in the wake of Trump.
This ruling comes despite what numerous studies of crime statistics have already demonstrated, namely that adding a gun to a domestic abuse situation increases the odds that a woman will be killed by as much as 500 percent. While men constitute most victims of gun homicide in general, when it comes to cases of violence between domestic partners, women make up three-quarters of the victims.
Even police recognize that one of the most dangerous calls they can receive is to respond to a domestic dispute, and that danger elevates exponentially whenever a gun is involved. This court ruling, guaranteed, will leave more cops and more women dead.
It can certainly be argued that the federal law in question here was ineffective in some cases. Enforcement of it, which typically relies on local police or sheriff deputies who may or may not be supportive of such protections for women, has been inconsistent. And a number of states, including Minnesota, have their own state laws intended to keep guns away from domestic abusers, so the federal law had relatively little impact.
But this latest Fifth Circuit ruling not only threatens the federal law— it could wipe away similar state laws, including the one here in Minnesota, if the Supreme Court upholds the decision. The Justice Department has already indicated it plans to appeal the case. Even if the high court declines to hear an appeal, there are plenty of other similar cases waiting in the wings. The New York case last year opened a flood gate of cases in which gun advocates are seeking to wipe away virtually any and all restrictions on access to guns.
Conservatives have been accused of wanting to take America back to the 1700s, and this is a good example of how they hope to actually achieve that goal. Conservatives have, for decades now, pushed back against the movements that have sought to expand the civil rights and social acceptance of groups that were historically oppressed in the U.S.
America in the 1700s was a world dominated by wealthy white men, who enjoyed rights routinely denied to women, African Americans, Native Americans, or gays and lesbians. It’s an era to which many on the right long to return, using the fig leaf of constitutional “originalism” to justify their antediluvian desires. It’s political ideology masquerading as legal theory and it defies longstanding legal precedents.
It is also historically inaccurate, since legal academics and historians have documented many hundreds of gun laws, many stricter than today, that were enacted in the early days of the republic. These were laws, of course, that pertained to firearms far less deadly than those in widespread circulation in the U.S. in 2023.
Neither legal nor historical precedence matters, however, to the ideologues placed on the nation’s courts by the former president. They were selected precisely to turn back the clock.
That process is now well underway.