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Salvaging Federal Domestic Violence Gun Regulations in Bruen’s Wake

Abstract: Congress passed two life-saving laws in the mid-1990s: a protection order prohibition, which bars firearm possession for protection order respondents, and the Lautenberg Amendment, which bars firearm possession for those convicted of misdemeanor crimes of domestic violence. Both laws have been repeatedly upheld by federal courts nationwide in the nearly thirty years since their enactment. Both faced renewed constitutional challenges after the United States Supreme Court’s foundation-shifting decision in New York State Rifle & Pistol Ass’n v. Bruen on June 23, 2022. The Lautenberg Amendment has fared well; every court to consider it post-Bruen has upheld it. Courts have split, however, regarding the constitutionality of the protection order prohibition. Critically, the United States Court of Appeals for the Fifth Circuit struck down the protection order prohibition in early 2023 in United States v. Rahimi. The Supreme Court heard oral arguments on the appeal on November 7, 2023, and is expected to issue its decision by the end of the 2023–2024 term.

This Article directly addresses how the two federal domestic violence prohibitors remain constitutional even under Bruen’s new two-part test. First, neither law implicates conduct of “the people” protected by the Second Amendment because those who commit domestic violence are not “law-abiding” citizens as the Supreme Court’s jurisprudence has required since District of Columbia v. Heller. Even if courts reach Bruen’s second step, in which the government must demonstrate that the law is consistent with the nation’s historical tradition of firearm regulation, both laws have relevantly similar historical analogues.

As the nation continues to grapple with firearm regulation and domestic violence prevention, this Article provides a critical path forward for courts to apply Bruen to uphold the constitutionality of these two critical prohibitions on firearm possession for those who abuse their family members.

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