A looming Supreme Court decision involving firearms and domestic violence will have wide-ranging implications on how gun laws are interpreted and enforced nationwide, and a Fordham Second Amendment expert may play a role.
Research from Saul Cornell, the Paul and Diane Guenther Chair in American History at Fordham, is included in the scholarship published Oct. 21 in the Fordham Urban Law Journal ahead of the scheduled oral arguments in United States v. Rahimi on Nov. 7. In the case, the court will decide whether a 30-year-old law banning firearms for people subject to domestic violence restraining orders violates the Second Amendment on its face.
Just over a year ago, the Supreme Court ruled in another case (NYSRPA v. Bruen) that gun regulations must reflect the ways such laws were applied at the time of the Second Amendment, which led the Fifth Circuit Court of Appeals to overturn the ban on domestic abusers.
“The Fifth Circuit said, well, domestic violence has been around for a long time. They didn’t take away people’s guns. Therefore, you can’t take away people’s guns.”
But Cornell argued there is a good reason why guns weren’t taken away in the 18th Century. “Although domestic violence is not new, at the time of the Second Amendment, domestic violence perpetrated with guns was just not an issue, because guns took too long to load and were not a good choice for impulsive acts of violence.”
“There’s a lot of complicated problems with how you would even begin to in good faith apply their method,” Cornell said. “There’s a huge opening for some kind of scholarship to give the court some direction,” Cornell said.
The published work includes statistical analyses, historical analyses such as Cornell’s, and descriptions of the ramifications of different legal decisions from some of today’s most influential experts in the fields of gun violence, public health, gun regulation, and the Second Amendment. These scholars author amicus briefs, which judges rely on for insight, and serve as expert witnesses in court.
The Fordham Urban Law Journal’s editor-in-chief, Joseph Gomez, said he expects their work to be used as source material when the justices write their opinions in Rahimi. “These scholars will be the most relevant source of expertise,” he said.
The field of weapons and gun law historians is small, and Cornell is in high demand as an expert witness in firearms regulation cases across the country. He said he currently is involved in 20 active cases ranging from extreme risk protection order decisions to whether people applying to be foster parents should have to lock up their weapons.
Confusion Over Bruen
“I’ve been working on gun regulation and the Second Amendment now since 1999,” said Cornell. “And because the Supreme Court last year issued this opinion that has created chaos in the lower courts, New York State Rifle and Pistol Association Inc. versus Bruen, it was clear to me and lots of people I talked to that since they changed the framework for evaluating laws, nobody knows how to implement the framework.”
Before the Bruen decision in 2022, lower courts looked to both historical tradition of gun regulation and “important government interest,” such as public safety considerations, he said. But in the Bruen decision, the Supreme Court said public safety can only be considered if there were comparable laws at the time of the Second Amendment that took public safety into account. Cornell said this “basically means you either have to find an analogous law, or at least a tradition, that seems to resemble the law in question today. And the big problem is life was very different in the 18th Century.”
Lower courts must rely on the Supreme Court’s guidance when interpreting gun laws. The pending Rahimi case provides the court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen, according to Kelly Roskam, J.D., the director of law and policy at the Johns Hopkins Center for Gun Violence Solutions, who participated in the scholarship as well as the 2023 Cooper-Walsh Colloquium on “Public Health, History, and the Future of Gun Regulation After Bruen” that Cornell helped organize at the Fordham School of Law on Oct. 13.
The Fordham Urban Law Journal, Northwell Health Center for Gun Violence Prevention, and the Johns Hopkins Bloomberg School of Public Health Center for Gun Violence Solutions co-hosted the event.
‘Not Usually How We Do Things’
Cornell said, “I know a lot of people in the gun violence prevention community, and many of them were concerned that if history is what’s going to drive [the decision], does that mean all this great research we do about what actually is the problem and what is the solution is now irrelevant? It would be kind of crazy that they would just rely on what was known back then. I mean, that’s usually not how we do things.”
The Supreme Court is expected to announce its decision next June.