Clarence Thomas Says Domestic Abusers Should Have Guns

The U.S. Supreme Court on Friday upheld a federal law prohibiting domestic abusers under restraining orders from carrying firearms, with one lone dissenter: Justice Clarence Thomas.

In his dissenting opinion in United States v. Rahimi, Thomas sided with gun rights advocates who opposed the rule, arguing that the other Supreme Court justices had somehow misunderstood a three-year-old opinion he’d written about gun regulation. In this case, however, Thomas only has himself to blame.

In 2021, Thomas wrote the majority opinion in the case New York State Rifle & Pistol Association v. Bruen, a decision that kneecapped New York’s ban on publicly carrying firearms, by establishing a confusing new rule for determining whether gun laws violate the Second Amendment. Spoiler alert: Under the new rule, a lot of gun regulations would, which is precisely how Rahimi came to the Supreme Court in the first place.

According to Thomas’s opinion, regulation on a firearm must be “consistent with the Nation’s historical tradition of firearm regulation,” an impossibly vague guideline that has sparked chaos in the lower courts. But it was par for the course for the staunch originalist, who consistently leans on eighteenth-century doctrine.

While the majority opinions found that the law barring domestic abusers from possessing firearms was consistent with this test, Thomas was obviously not convinced.

“The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence,” Thomas wrote. “Yet, in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more.”

Thomas regularly points to historical tradition when trying to strip away people’s rights: He cited this reason when overturning the nationwide right to abortion and hinted he might do the same for same-sex marriage. And now, apparently, it also applies to safety in a person’s own relationship.

Thomas argued that criminal prosecution is a good enough means of keeping guns out of the hands of those who would do harm, insisting that the government could not “strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime.”

Unfortunately for Thomas, his opinion in Bruen invites courts to look for historical analogues to rules befitting modern American society—but doesn’t determine in what way that analogue needs to be similar.

In the majority opinion, Chief Supreme Court Justice Roberts found that the law did satisfy Bruen’s requirement. “Our tradition of firearm regulation allows the government to disarm individuals who present a credible threat to the physical safety of others,” Roberts wrote.

As a result of Friday’s decision in Rahimi, many lower courts may see challenges to their rulings under Bruen, as they are forced to reconsider the application of Thomas’s originalist rule.