On June 21, 2024, the United States Supreme Court issued its highly anticipated decision in the case of United States v. Rahimi. In an 8-to-1 majority, the Court upheld the federal prohibition of firearms by those subject to a domestic violence restraining order. On this episode of Policy Outsider, Jaclyn Schildkraut, executive director of the Institute’s Regional Gun Violence Research Consortium, gets initial reactions to the decision from Consortium members Liz Tobin-Tyler, associate professor of health services policy and practice at the Brown University School of Public Health, and Kaitlin Sidorsky, associate professor of political science and public policy at Ramapo College of New Jersey. The conversation provides an overview of the ruling, what the concurrence and dissent opinions signal about how the court is interpreting the Second Amendment, and what comes next on the national stage for firearm and domestic violence policy.
Guests
Transcript was generated using AI software and may contain errors.
Joel Tirado 00:04
Welcome to Policy Outsider presented by the Rockefeller Institute of Government. I’m Joel Tirado. On June 21, the United States Supreme Court issued their highly anticipated decision in the case of United States v. Rahimi. In an 8-to-1 majority, the Court upheld the federal prohibition of firearms by those subject to a domestic violence restraining order. On today’s show, Jaclyn Schildkraut, executive director of the Regional Gun Violence Research Consortium, gets initial reactions to the decision from consortium members Liz Tobin-Tyler, associate professor of health services, policy and practice at the Brown University School of Public Health. And Kaitlin Sidorsky, Associate Professor of Political Science and Public Policy at Ramapo College of New Jersey. The conversation provides an overview of the ruling what the concurrence and dissent opinions signal about how the court is interpreting the Second Amendment. And what comes next on the national stage for firearm and domestic violence policy. That discussion is up next.
Jaclyn Schildkraut 01:21
Caitlin, Liz, thank you so much for joining.
Liz Tobin-Tyler 01:24
Thanks for having us.
Kaitlin Sidorsky 01:25
Yes, thanks for having us.
Jaclyn Schildkraut 01:26
I want to get your initial reactions. Obviously, the Supreme Court ruled that these individuals could be temporarily disarmed when they pose a credible threat to the physical safety of others. And that, of course, that this provision is consistent with the Second Amendment, which we know it’s obviously a very heated debate. What were your initial reactions, when you first heard this decision come down was
Liz Tobin-Tyler 01:50
I was not surprised by the result, I had listened to the oral arguments. And it was pretty clear that there was there were enough votes on the court to find that the federal law which which prohibits people who are under a restraining order or permanent restraining order from possessing firearms or purchasing firearms, so I wasn’t surprised by the result, what I was looking for, and was most interested in was to see which justices signed on to the majority in the decision. And probably even more importantly, I was really interested to find out what their reasoning would be, particularly given the Bruin decision, which really created a very, very specific and narrow approach to understanding the second amendment through history and tradition.
Jaclyn Schildkraut 02:35
You know, you raise important points, obviously, we saw multiple concurrences come along with this decision that helped us to really understand that rationale that you picked up on. Caitlin, what were you thinking, as you heard this decision come down?
Kaitlin Sidorsky 02:48
Really great, was the first thing that went in the way that it should go. But, you know, I listened to the oral arguments. And then just thinking about some of the domestic violence related Supreme Court case law, right, that kind of, you know, is in this same vein, right. So you have, you know, Hayes in 2009, you have Casselman, in 2014. And then you have la zine and 2016, and all three of those right, uphold some portion, right of domestic violence law and domestic violence firearm law, in some way, shape, or form. And in most, in all cases, they were liberal and conservative justices, right, that supported those decisions, you know, one of them that they actually think the Casselman case was nine Oh, right. So, you know, in part, it fit with where we had been moving, you know, in terms of Supreme Court case law over the last, you know, almost two decades. And, you know, also, you know, as Liz had mentioned with the oral arguments, you know, if you paid attention, which you didn’t even really need to pay, and it was pretty obvious that they were very skeptical, right, of not allowing someone who is a danger to society to have access to a firearm, which, again, is common sense, right. But, you know, in light of Ruin, where, you know, you have the history and tradition argument, you know, you they, you kind of backed yourself into a corner, potentially, if you go pure history and tradition like Thomas doesn’t his descent of how you can then apply this to Rukmini. So,
Jaclyn Schildkraut 04:20
you know, obviously, we know that the case was decided by an eight to one majority. And Caitlin, you just kind of pointed out that that follows sort of the precedent with, you know, majorities or, you know, complete majorities in decisions. What message do you think it sends, especially in light of other decisions like Bruin where the court was more divided?
Kaitlin Sidorsky 04:39
So, um, yeah, I think it I think it shows first, right that there are limitations to the history and tradition argument when you’re applying it to a class of citizens that were not citizens. As at the time of the founding, who currently and since right, faced a very specific set of challenges, such as domestic violence, right, which predominantly affects women, and also more so than not affects women of color. So I think it shows the limitations of the ruin argument. First off, and second, I think it shows that, you know, it’s hard to, it’s hard to say, right, I think, as a human being, let alone as a Supreme Court justice, that someone who has proven that they are a danger, right, if you’re going to hurt, someone should then have the means to do so again, right, and that it should be, in fact, supported by the government. So I think that’s something to really keep in mind that at some point, you know, there’s a human aspect to this, and it just doesn’t seem to fit well, right to say that you would allow someone to have access to this kind of, to that kind of weapon, when you know, right, how much more likely it is that a murder will happen. Right, particularly female homicide will happen when they still have access to
Jaclyn Schildkraut 06:04
incredibly important points list. You know, you mentioned, you know, kind of looking to see the different, you know, rationale that presented themselves in these cases, what was your take, you know, in terms of thinking about this as a majority and what precedent that sets but also the variation within those arguments that were being presented by the court?
Liz Tobin-Tyler 06:22
Yeah, I mean, I think, you know, it’s clear from the decision in this case that the conservative justices, especially those that signed on to the Bruin opinion, in a sense, were looking for a little bit of a way to walk back Bruin and I don’t want to, I want to say a little bit of a way, because I think, you know, it’s very clear from their various opinions and, you know, including the majority opinion would still apply to history and tradition, methodology to to interpret the Second Amendment, but from many of the occurrences including Gorsuch is Coney Barrett’s and Kavanaugh, they all right to make the point that they still believe that originalism and history and tradition and textualism are the best means to to interpret the Constitution, including the Second Amendment. But they all come out in by saying that they’re not quite comfortable with the way that it it might be applied, or how Bruin might be applied in this case. And so the majority ultimately looks to you know, sort of two kinds of laws in the Roberts opinion, which is the majority opinion, they look at shorty laws, and other essays, which are ours, our F phrase, which are a French term for going armed laws. So these are, again, laws from, you know, the 19th 18th century to try to justify why it makes sense that you know, that the government should, in some cases be able to remove remove firearms from people who are dangerous. So, you know, these were the arguments that the government made, still locked into that history and tradition analysis. But they were willing to sort of look at those two types of laws and say, combined together, you know, it’s clear in history that if somebody was particularly dangerous, the government could step in. And particularly people that were dangerous using, or were out in public using dangerous weapons, the government could remove those weapons, or charge them criminally. And so they kind of pieced this together. And what’s interesting and Thomas’s dissent, and he was the author of Bruin is that for him, that is not enough, he wants to stick to a very strict interpretation of what he calls a historical analog, looking to, you know, again, 18th century law or around the time of the founding, to find a very precise law that you can analogize to in this case, the federal law, protecting, you know, survivors of domestic violence from their their abusers having firearms. So, you know, I think what’s clear, overall is that the court, particularly the current conservative justices, were ready to take a little bit of a step back from what they said in Bruin but I would caution that they didn’t fully embrace, you know, looking at the implications of firearm firearm access for domestic violence victims, you know, they were not going down that path. The dissenter, sorry, not the dissenters that concurrences from the liberal justices did that and they were very clear that Bruin it’s itself is very problematic and Sotomayor, with whom Justice Kagan joined wrote a really powerful concurrence citing domestic violence Artistics and recognizing, you know, sort of today and 2020 for why this is important. Justice Jackson wrote a very, very powerful concurrence. And I loved one of her lines, she says that, you know, this proves that there is no method to Bruins madness. Meaning that, you know, the methodology is, is, you know, people are coming out all over the place, and lower courts are incredibly confused about how to apply Bruin. It’s turning people into amateur historians, you know, they’re casting about for historical analogies, and she says, this case, you know, in particular, is one where we can see that that just fails, and that we need to have a broader perspective on how we interpret the Second Amendment. So it was really a fascinating, it was fascinating to see how the different justices approached this. What I will say is, I don’t think, you know, this is obviously a victory in the case of this particular law, protecting domestic violence survivors, but they still did not provide us with a whole lot of information about how they might interpret other Second Amendment cases going forward.
Jaclyn Schildkraut 10:59
You know, it’s interesting that you mentioned that, because one of the things that kind of struck me about, you know, that popped into my head when you were talking is about this idea of public safety. And, of course, we know that in previous cases, not related to the Second Amendment. The Supreme Court has held up, you know, decisions related to public safety, like New York V. quarrels with public safety exception of Miranda rights. And so, you know, thinking about public safety and what we’ve gotten from Rahimi, I wonder, what do you guys think that this, what kind of stage will this set for other cases, with things like extreme risk protection orders, which we know are also very critical in domestic violence related cases, as well as other types of gun violence? Caitlin, what’s your thoughts on that?
Kaitlin Sidorsky 11:42
So, um, you know, I think because they did provide some of the legal out, right, of how to roll back a little bit of ruin. I think something like extreme risk protection orders, if it were to come before the court, I would hope and I would think fitting with the arguments that they made in this case, that they also would uphold it and say, Listen, this would fit still in the history of tradition of, you know, people who are of a dangerous should not have access to a firearm. But I don’t know how far that goes. Right. I don’t know how, how much leeway they give, right in terms of something like an extreme risk protection order. You know, because each state has their own way of doing it. And so how long, what is the process? How long would it be taken away from way for? How would they get the process of getting it back? You know, I am a little skeptical that they would wholeheartedly just say, Yes, you know, we support, you know, extreme risk protection orders, I would be wouldn’t be surprised if they supported a little less, but still supported in some way. But I just don’t know, because you’ll, as Liz said, this argument of history and tradition is, you know, Supreme Court Justice Jackson said it’s hard, right? It’s hard to apply, right? Of in what situation, history would support something like this in a 21st century context?
Jaclyn Schildkraut 13:11
No, that makes sense. Liz, what do you think about that?
Liz Tobin-Tyler 13:15
Yeah, I mean, I agree with Caitlin I think the court was, the two things they were clear about in this case is that this there was a judicial proceeding, before firearms could be removed. And I won’t go down too far down the path. But Thomas takes real issue with whether a restraining order hearing is sufficient. Because he doesn’t think there’s enough due process and that to actually trigger, you know, the removal of firearms. But they do, you know, they they focus on the judicial part, the fact that there’s a judicial proceeding, and also that it’s temporary. And so I think, as Caitlyn said, you know, it would probably be very dependent in the case of extreme risk protection orders, sort of what that process looked like whether they would be sufficiently comfortable applying sort of a historical analog, as they have here to say that, that that would be legitimate under the Second Amendment.
Jaclyn Schildkraut 14:06
So as researchers who study both the law as well as domestic violence, what kind of questions are percolating in your head coming from this case, sort of what’s next, not only just on a research agenda, but just public conversations that we’re going to be having in light of this decision. Liz, what do you think?
Liz Tobin-Tyler 14:25
Yeah, I mean, I think there’s there’s sort of good things or bad things that can come from this. So you know, I think the good thing is that this case has raised these issues in a way that has brought, I hope, to the public’s attention and certainly to policymakers and hopefully other courts, the relationship between domestic violence and foreign firearm access, you know, it’s been in the news and and discussion in ways that it hadn’t been before and I think that could be potentially helpful in The way that we move forward with this. I think the the possibly negative effect is that this didn’t change anything. Right? It it protected what was already there in the law. And so I don’t I don’t I hope people do not sort of think, Oh, well, you know, now that everything is okay, we’ve, we’ve secured, you know, this protective law that’s going to keep firearms out of the hands of domestic abusers. And I’m going to toss it to Caitlin in a minute, because she’s really the expert on this. But what we know is that, you know, despite the laws on the books, there’s the federal law, and then there are obviously state laws where where were these firearms with, with a restraining order, restraining orders that call for removal of firearms, there incredible variability and accountability and enforcement around that already, right. So. So we know that that’s not going to change just because of this decision. But it’s my hope that there could be some, you know, more attention to this issue, given that it’s been so much in the forefront. And so I would just say, and I’ll toss it to Caitlin, because she’s very well equipped to talk about this. But I think, you know, I think survivors and advocates are going to really have to stay incredibly vigilant, vigilant about enforcement issues, and ensuring that if an abuser maintains firearms, that that’s called, you know, that they alert law enforcement and really try to ensure that, that they’re safe, because this changes, this doesn’t change any of that. And then the other piece that that it doesn’t change is is ex parte restraining orders. And I just want to make that point. So ex parte orders are the initial order that a court issues without notice and hearing to the perpetrator. And that the reason for that is because that can be the most dangerous time for victims, which is when they initially leave and certainly when they seek help from the court. And so until the perpetrator receives notice and hearing, you know, there’s still opportunity, particularly for more violence, but also gun violence. And so, you know, I think we have to be attuned to that there’s been more discussion about the need to extend these protections to those ex parte orders as well. Excellent
Jaclyn Schildkraut 17:14
point. Caitlin, what are you thinking about? You know, as Liz was talking about these points? Yes.
Kaitlin Sidorsky 17:18
So, you know, again, you know, as, as Liz had mentioned, you know, we can’t forget that this is federal law that is enforced at the state level, not all states have state level laws that are requiring the removal of a firearm due to a restraining order. And that’s just this is just one domestic violence firearm law. There are seven others, right that we could talk about, such as expanding to boyfriends expanding to stalking, misdemeanors, right? The ex parte right, prohibiting concealed carry, right. So there are a whole host of other domestic violence firearm laws that are also really important, and really effective, that plenty of states are not enforcing right, and there is no mechanism that happens when a state does not enforce federal law. So you know, a state can flout the federal law in terms of you know, the restraining order protections, such as a Georgia which has none of these domestic violence firearm laws, and nothing happens to Georgia as a state other than, you know, it’s women are in a lot more danger, right? From a from their perpetrators and from their partners. So that’s the first thing that I think of is that, you know, there’s still so much work that needs to happen at the state level, to get states on board with actually passing and enforcing these laws. Because, you know, just because it’s at the federal level, doesn’t mean it’s actually being utilized at the states, not to mention the differences that happen in the courtroom itself, with a judge applying this, right. And we know that judges applied this law very differently, particularly when we’re talking about women of color, right, and you know, how they’re treated as victims or whether or not they’re even seen as victims at all? So that’s kind of the first thing I think the second thing I think, is, you know, as Liz had mentioned, you know, there’s nothing new here, we’re just protecting what are upholding what has already been passed. And all I can think about is those advocacy organizations that have had to stop forward momentum to go back to advocate and protect for a law that was already on the books, right, that they had already gotten there three decades ago, over three decades ago. Right. So that’s what you know, I think about is what kind of damage has this done to the forward momentum of these advocacy organizations that instead of looking ahead and trying to get, for example, more of these laws passed at the state level or other national protections, they’ve now had to step back and put their resources into something that they thought was already said and done and already protected. So Oh, you know, I’m curious about the effects of that and, you know, studying advocacy organizations to see what they say about, you know, what this has done to their work, right, and what they found to be what they think it will do to their agenda moving forward.
Jaclyn Schildkraut 20:08
You know, one thing that that stands out to me about, you know, kind of the remarks that you guys both made about to that question was really about the people who are at the center of this, the women and, you know, by extension, their children who are impacted in these, you know, domestic violence, or intimate partner violence situations, that we know becomes so much more deadly when the firearm is present. And so, you know, I’d really like to ask, you know, kind of shifting mindset from the, you know, professional to almost the personal for a second, what is this decision mean for them? Was, we’ll start with you.
Liz Tobin-Tyler 20:46
Yeah, I mean, I think, I guess, reiterating, I’m not sure it changes much. Right. But I think, you know, as I said earlier, I hope it does kind of it does, further the conversation about the linkages between the danger, the the access to firearms, and what it means for domestic violence. And I think, you know, for them, for people on the ground who are experiencing that, you know, it is still their best bet, to try to get a restraining order to try to get an order that, that, you know, calls for the removal, or at least, relinquishment, in some cases, or at least requires that the that the domestic abuser doesn’t have access to guns or doesn’t possess guns. So, you know, I hope that, as Caitlin said, so Well, I think that domestic violence advocates, advocates and agencies that are working with survivors, you know, I hope that now that this has passed, and we’re at least back where we started, that we can move forward, and they can move forward, and really support supporting survivors. And again, I think it’s going to take a lot of just diligence on the part of those advocates and, and all of us that are working on this to ensure that people stay safe. And it’s really, it’s just really, really important, as we know, because this is continues to be a really significant problem. And I, I’ll just go back to the court decision for one minute to say that, you know, I think one thing that struck me as well about justice Thomas’s dissent is he makes a distinction. And I think this is really important in domestic violence, between public violence and poor and what happens privately. And he says, you know, the laws that the court are focusing on are about people that are dangerous to the public. And in the case of domestic violence, we’re not talking about public violence. And I was struck by that as a domestic violence researcher and somebody who’s been an advocate for a very long time, because that still, we still, we are still in that conversation, at least among some people, that seem to want to distinguish public and private violence, and sort of the idea that guns in the home are fine, because that’s a private space. And that doesn’t somehow implicate you know, the kind of violence that we need to think about when we’re thinking about public violence. So I guess what I would say about about individuals experiencing this is that they’re still at risk, and we still need to really focus on how we can remove firearms from domestic abusers. Yeah,
Kaitlin Sidorsky 23:26
I hope that because attention is back on these kinds of laws, that states and advocates can go back and really improve them. Right. You know, so for example, you may have a firearm surrender law, but it may be for a restraining order, but it may be very narrow, like very tailored to very specific kinds of violence. You know, for example, there’s a whole host of domestic violence like coercive control that often leads to physical violence, but isn’t it but isn’t physical violence that is just as damaging to victims, right. So, you know, expanding definitions of domestic violence and applying domestic violence restraining orders to things like coercive control behaviors, like financial control, or stalking or, you know, threatening, you know, fan, other family members or children. You know, it’s really important. A, but B also really honing in on the actual procedures of firearm removal, right? They may say, oh, a firearm has to be removed, but then there’s no follow up, right, there’s no follow up to ensure that it is actually removed and who was it removed by? You know, in other states, it may be well, a third party can do it. Well, who’s the third party? Could it be a family member? Right? That doesn’t sound like it’s very safe as opposed to the sheriff’s office potentially coming in and removing the firearm. That dimension the fact that some sheriff’s offices refused to do it because they think it’s a violation of the Second Amendment. And then you have the storage, its problems right you have these law But then you don’t have the storage to actually hold all these firearms that have now been, you know, had to have been relinquished. So I’m hoping that for the people on the ground for the actual survivors of domestic violence, that we maybe get a new wave of reviewing these laws to make them better, because they it’s one thing that they exist, but that doesn’t mean that they’re doing the best that they can do. And that’s, I think we also lose that, you know, in in the story that, Oh, it’s great that, you know, one state has this or 35 states have these, but, you know, what are the actual procedures? And who’s doing it best? Who’s doing it the best and who’s, which one is the most effective? And I think that’s something that, you know, we certainly need to consider moving forward.
Jaclyn Schildkraut 25:39
All excellent points. You know, as we wrap this episode, I want to ask you kind of about Final thoughts, what is sticking with you or kind of percolating with regards to this case and the decision, but also, what is something that you would hope that our listeners would take away from this about this case, Caitlin?
Kaitlin Sidorsky 25:58
Um, you know, as, as happy as I was, right, that they, you know, decided eight to one to uphold these laws. It was It is also incredibly frustrating that this even had to be questioned, right, that we had to get all the way to the Supreme Court in 2024. To retread ground that was written in law in 1994. Right, which was already in, you know, thinking in terms of time, right, crazy, right, that it took till 1994, for the for the federal government to do something in this area of law. So that, you know, you know, all these years later, we’re still questioning it. And that on the books now, forever, there’s a dissent, right, written by a Supreme Court justice, that as was mentioned, you know, questions, this difference between private and public violence a, and then also just doesn’t want to give any kind of, you know, support or protections to domestic violence victims. Because of that, and because of, you know, a legal doctrine that is very, very limited to women. It is it’s frustrating, right, you know, that that’s still the case in 2024. And, you know, I hope that we can move forward now, and may, at the very least, we’ll come out of it as just a re introduction, a, a reanalysis, you know, new research and more attention by lawmakers and advocates to areas of the law that still desperately need to be improved, and that they have a voice now, and that they maybe feel more comfortable doing it, because they know that the Supreme Court has supported it in some way, shape, or form. So that’s, that’s kind of like my, my, the final thoughts that I think of when I think about this case, is that I’m glad it was decided in this way. And also, my gosh, I can’t believe this needed to get to this point.
Jaclyn Schildkraut 27:46
Was what about you?
Liz Tobin-Tyler 27:49
Yeah, I mean, I think just picking up on Caitlin’s point, you know, the fact that the way that our Supreme Court in 2024 is interpreting Second Amendment rights has to go through this, you know, very narrow hole of, of this history and tradition approach or historical analog, as opposed to a court that might entertain, you know, understanding domestic violence and the access to firearms in 2024. And how we might understand balancing the interests of gun owners with, you know, safety for victims and survivors and for public safety. Right. I mean, that that really was the the sort of means ends approach that that we had before Brewin. And I think the fact that we’ve gotten to this place where there’s essentially no entertaining, at least among the majority of the conservative side of the court of the implications of their decisions. Well, all they’re sort of doing is looking at, well, can we find some history and tradition to support this? And so, you know, the Brahimi is a good out is it is a good decision in the sense that the outcome is correct and important. And it does seem to rain back Bruins slightly, but it did not get us out of that box. And I think, you know, what I would like to see over time is that we we see the court continue to cut back on this, but I think it could take, you know, it could take a very long time given the court that we have because as I mentioned earlier, you know, the three of the conservative justices wrote to reiterate that they think this is the correct approach. They just took issue with how it might be applied in this case. And so that, you know, from the perspective of gun violence, and how we think about the Second Amendment and balancing interest among public safety and domestic violence victims and and the rights of gun users, you know, I think we are not very far down the road still With this decision, but I do say I would say as I said earlier, I do think that the attention to this case has been important. And as Caitlyn said, I hope that it, you know, initiates more action by state legislatures and by people on the ground who are enforcing restraining orders and, you know, making sure that domestic abusers don’t have their guns. I
Jaclyn Schildkraut 30:17
couldn’t have picked a better point to wrap this conversation up. Thank you guys so much for sharing your insights and your initial reactions to this case. Certainly, we know there’s going to be more discussion about it in the days and weeks ahead. Liz Tobin, Tyler, Caitlin sidarsky, thank you so much for joining us here today.
Liz Tobin-Tyler 30:34
Thank you. Thanks so much.
Joel Tirado 30:42
Thanks again to Jaclyn Schildkraut, Executive Director of the institute’s regional Gun Violence Research Consortium, Liz Tobin-Tyler, associate professor of health services, policy and practice at the Brown University School of Public Health. And Kaitlin Sidorsky, Associate Professor of Political Science and Public Policy at Ramapo College of New Jersey for sharing their initial reactions to the Supreme Court’s Rahimi decision. If you liked this episode, please rate subscribe and share. It will help others find the podcast and help us deliver the latest in Public Policy Research. All of our episodes are available for free wherever you stream your podcasts and transcripts are available on our website. I’m Joel Tirado until next time.
Joel Tirado 31:30
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