Bloomberg Law
May 5, 2023, 8:00 AM

Constitutional Cocktail Enables Gun Violence Against Women

Wendy Schiller
Wendy Schiller
Brown University
Kaitlin Sidorsky
Kaitlin Sidorsky
Coastal Carolina University

Between 2003 and 2017, nearly 9,500 women were killed as a result of domestic violence, and 50% of those murders were committed with a gun. The mere presence of a firearm in a household where there is domestic violence increases the chances that a woman will be killed by 1,000%.

Unfortunately, our Constitutional framework limits the effectiveness of federal law to combat this deadly epidemic: shared state and federal sovereignty, the Second Amendment, and the independent power of the US Supreme Court.

The collateral costs of domestic violence reach far and wide in America. Women who are subject to physical and psychological abuse report missed hours of work and medical costs, and a majority who are in prison have been victims of domestic violence.

Recent work also shows a strong connection between mass shooters and domestic violence: 68% of mass shootings either involve family members, or the shooters have a record of domestic violence.

Fragmented Safety Net

Up until 40 years ago, domestic violence was considered largely a private matter between intimate partners. Activists in the women’s movement in the 1970s brought domestic violence out of the dark shadows of the home. But it wasn’t until 1994 that the federal Violence Against Women Act was enacted, limiting access to individuals convicted of felony domestic violence, or who were under a domestic violence related restraining order. President Joe Biden reauthorized the act in 2022.

The 1996 Lautenberg Amendment extended those restrictions to domestic violence misdemeanants. In combination, these two laws form a federal safety net of protection for women from injury or death by firearms in domestic violence incidents.

Federal law relies on states to comply with and enforce it. Yet we find that states fail to do this in the arena of domestic violence and firearm laws. To date, only 28 states have enacted laws that comply with the Lautenberg Amendment. State laws vary considerably on firearm-related restrictions, leaving women unequally protected from domestic violence across state lines. Moreover, enforcement of domestic violence firearm laws relies on local judicial rulings and law enforcement practices, each of which also varies considerably depending on where a woman lives.

Roots of Failure

We attribute this failure over the past 30 years to the existence and interpretation of the Second Amendment, the concurrent rise of strong gun rights activism, and increasing conservatism of the Republican Party. In our analysis of state domestic violence firearm laws from 1990-2017, states with unified GOP control are far less likely to enact firearm restrictions for domestic violence abusers.

Most recently, some states have even tried to eliminate them altogether. For example, concealed carry laws require information about prior domestic violence convictions. States that eliminate the requirement of a permit for concealed carry are simultaneously removing an important barrier to domestic violence abusers obtaining firearms.

Supreme Court Interpretation

This leads us to the power of the Supreme Court to interpret the US Constitution in a process known as judicial review. While this power is not explicitly in the text of the Constitution, Chief Justice John Marshall essentially created it in 1803 in Marbury v. Madison, and the court has used it ever since.

Today, the prevailing theory guiding Supreme Court decisions on firearms rests with “historical inquiry”—in the words of Justice Clarence Thomas in New York State Rifle & Pistol Association v. Bruen. Essentially, if a firearm law would not have been deemed necessary or reasonable at the time of the Founding, it should not stand at the state or federal level.

This reasoning now threatens to undermine one of the core firearm provisions of VAWA, which is to limit access to firearms to individuals under domestic violence restraining orders. This past February, the 5th Circuit Court of Appeals ruled in United States v. Rahimi that because domestic violence law didn’t exist 200 years ago, this limitation on firearm access is unconstitutional.

The Justice Department has appealed the Rahimi decision to the Supreme Court. The 5th Circuit ruling goes against Supreme Court precedent, which has upheld the scope of federal domestic violence firearm laws three times, most recently in 2016. However, as the overturning of Roe v. Wade demonstrated, this current Supreme Court is not afraid to reject precedent.

In every free society, individual rights must be balanced against collective security and safety. The Framers of the Constitution left the door open for future generations to adjust this balance to address new issues and circumstances that would confront the fledgling democracy. Domestic violence policy showcases just how fragile this balance can be.

Our hope is that policymakers and jurists will recognize the devastating human cost that comes from protecting firearm access for individuals with a known record of violence against intimate partners and family members. Women’s lives depend on it.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Wendy J. Schiller is professor of political science and director of the Taubman Center for American Politics and Policy at Brown University.

Kaitlin N. Sidorsky is associate professor of political science at Coastal Carolina University.

Schiller and Sidorsky are authors of the book Inequality Across State Lines: How Policymakers Have Failed Domestic Violence Victims in the United States.

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