This article is part of a symposium on the upcoming argument in New York State Rifle & Pistol Association v. Bruen. A preview of the case is here.
Rachel Graber is the director of public policy at the National Coalition Against Domestic Violence. Ruth M. Glenn is the president/CEO of the National Coalition Against Domestic Violence.
Firearms often play a significant role in the lives – and deaths – of domestic violence victims. Abusers use firearms to exert and maintain power and coercive control over their victims, and, far too often, exert ultimate control by taking their victims’ lives. To highlight the domestic violence implications of New York State Rifle & Pistol Association v. Bruen, the National Coalition Against Domestic Violence, joined by 12 other organizations, filed an amicus brief on behalf of the domestic violence field in support of the state of New York. NCADV’s brief focuses on the importance of administrative authority to regulate abusers’ access to concealed firearms beyond categorical prohibitors addressing firearm possession. While possession prohibitors are critical to public and survivors’ safety, they cannot account for indicators of dangerousness that do not result in an active court record.
At NCADV, we define domestic violence to mean:
… the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, psychological violence, and emotional abuse. The frequency and severity of domestic violence can vary dramatically; however, the one constant component of domestic violence is one partner’s consistent efforts to maintain power and control over the other.
Firearms are used in all aspects of abuse. Abusers point the firearm at the survivor, their children, themselves, their pets, or others; make verbal or implied threats; discharge the firearm; shoot the survivor; pistol whip the survivor; rape the survivor with the firearm; kill a pet; or ultimately kill the survivor, their children, their family members, or themselves.
Federal law restricts certain domestic violence misdemeanants and certain respondents to final protective orders from possessing, receiving, shipping, or transporting firearms. Some states and tribes also restrict firearm possession by adjudicated domestic abusers, and many have more expansive laws, covering a larger category of relationships, including conduct such as intimate partner stalking misdemeanor convictions, or restricting firearms access for respondents to ex parte protective orders. While these laws significantly reduce intimate partner homicides by individuals with an active court record, they exclude the universe of individuals who are known to have committed domestic violence and are known to pose a danger but who have not been through an adjudication process.
This is more common than one would think. A 2014 study found that 97% of domestic violence calls to law enforcement by families with children do not result in a conviction for a wide variety of reasons – and not because the abuse did not occur or there was insufficient evidence. Protective orders are temporary, and the expiration of a protective order does not mean that the danger to the victim has expired. While in many of these cases, the abuser poses an ongoing danger to the victim, indicators of this dangerousness will not show up in a firearms background check. However, local law enforcement officials who have responded again and again to violence perpetrated by the same individuals know these abusers. The value of local knowledge must not be discounted when considering public safety needs.
Despite the threat they pose to their victims and their communities, District of Columbia v. Heller gives many of these individuals the right to possess firearms in their homes. However, this right does not extend to the public sphere – nor to the homes of other individuals, including dating partners and estranged spouses. State regulatory regimes that consider additional factors when determining whether to issue a concealed-carry permit are fully consistent with the Supreme Court’s prior ruling.
Rather than focusing on legal arguments, NCADV’s brief highlights the real-life implications of a ruling that would undermine administrative review in determining whether to issue a concealed-carry permit. Many states consider factors beyond what would show up in a firearms background check when determining whether an individual ought to be granted a concealed-carry permit. For example, Massachusetts law permits licensing authorities to consider whether an individual has been subject to a protective order in the past and whether an individual has ever been arrested or charged with a crime. This law was challenged by an abuser, who claimed it violated his Second Amendment rights. The Massachusetts Supreme Court ruled against the abuser:
[Applicant’s] conduct in punching his wife in the face, dragging her out of his vehicle, and throwing her to the ground constitutes criminal conduct that would have disqualified him from licensure had he been convicted. The absence of a conviction does not prevent such conduct from consideration by the chief on the question of [Applicant’s] suitability. [Applicant’s] acts of domestic violence provide precisely the kind and quality of evidence that rationally support a finding of unsuitability.
Given the previously cited statistic about the infrequency with which domestic violence crimes lead to a conviction, situations such as the one above are not uncommon. The permit applicant in the Massachusetts case had a history of committing violent acts, and his possession of a concealed firearm could put his wife’s safety and the safety of those around her at risk.
In sum, the importance of local knowledge in determining who should and should not have a concealed-carry permit is critical to protecting public safety. The domestic violence field’s brief asks the Supreme Court – regardless of how the court decides the case – not to issue any decision that weakens states’ regulatory authority to protect survivors and communities from known domestic abusers.
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