By Jessica Roslaes 

Published on May 2, 2023

The Supreme Court’s recent ruling in New York State Rifle Association v. Bruen[1] raises concerns about the future of gun reform.[2] Bruen is the first significant Second Amendment ruling since the Court’s decisions in Heller and McDonald.[3] Bruen has already been cited by federal judges to rule against gun restrictions, including laws banning assault weapons and even longstanding federal laws intended to protect domestic violence survivors.[4] In November 2022, applying the Bruen opinion, a Texas federal district court judge ruled in United States v. Perez-Gallan, that the federal law, 18 U.S.C. § 922 (g)(8), which restricts gun access by perpetrators of domestic violence who are subject to a protective order is unconstitutional.[5] This ruling will likely have detrimental and deadly effects because domestic violence[6] and gun violence in the United States are inextricably intertwined.[7] Because Bruen’s new test requires any gun safety law to have some parallel regulation from the time of the Constitution’s framing,[8] courts and advocates will have to think of creative ways to protect survivors of domestic violence from future gun violence.

Bruen changes how courts review whether a given gun safety law is constitutional. After Heller and McDonald, circuit courts largely applied a two-part inquiry to analyze Second Amendment challenges to firearm regulations.[9]Under part two of this analysis, governments could justify a gun law based on public policy and whether the law is tailored to serve an important governmental interest.[10] In cases challenging domestic violence gun safety laws, when engaging part two of the analysis, courts typically examined legislative history and congressional intent behind a domestic violence gun law, current domestic violence data, social science and medical studies, and “common sense” to support an important government interest in preventing domestic gun violence.[11]

For example, in United States v. Mahin, the Fourth Circuit held that § 922(g)(8), which Perez-Gallan now finds unconstitutional, served a substantial government interest in preventing domestic gun violence.[12] The court acknowledged how survivors of abuse remain vulnerable to harm despite seeking a protective order against a violent partner.[13] It regarded § 922(g)(8) as a valued safeguard that, “reduces the likelihood that a violent partner bent on revenge or intimidation will make use of an accessible firearm and turn a threatening situation into a fatal one.”[14] The court examined the relationship between domestic violence and firearms and found:

(1) domestic violence is a serious problem in the United States; (2) the rate of recidivism among domestic violence misdemeanants is substantial; (3) the use of firearms in connection with domestic violence is all too common; (4) the use of firearms in connection with domestic violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide.[15]

Yet, the Bruen decision expressly declines to adopt this two-part approach and completely disregards the effects guns have on domestic violence.[16] Under Bruen, looking to current studies and data to support a governmental interest in preventing domestic gun violence is “one step too many.”[17] Instead, Bruen instructs that courts must look backwards and take a “long journey through the Anglo-American history…to identify an American tradition justifying” a gun safety law.[18]

In the recent Perez-Gallan decision, § 922(g)(8) was deemed unconstitutional due to a lack of historical evidence to show it “aligns with this Nation’s historical tradition.”[19] The opinion considered how the nation historically punished domestic violence and “journeyed” all the way to the seventeenth and eighteenth centuries, even citing to Plymouth Colony court records from 1623-1802.[20] After citing to time periods where women could not even vote, the court came to the revelation that government intervention because of domestic violence practically did not exist.[21] But the opinion’s journey through history failed to consider how, after the Revolutionary War, many new states incorporated English common law including the doctrine of chastisement, which allowed a husband to physically beat his wife.[22]

Under this application of Bruen, because laws historically did not restrict domestic violence abuser’s gun rights, it would be unconstitutional to do so now.[23] This interpretation brings us backwards, returning to this country’s prolonged history of disregarding victims of domestic violence.[24] The Perez-Gallan decision has been appealed to the Fifth Circuit and is an important foreshadowing of how Bruen may be utilized to overturn existing gun laws and block future gun reform to protect domestic violence survivors.

[1] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).

[2] Tierney Sneed, How the Supreme Court Put Gun Control Laws in Jeopardy Nationwide, CNN (Oct. 10, 2022),

[3] See District of Columbia v. Heller, 554 U.S. 570(2008) (holding that the Second Amendment to the U.S. Constitution guarantees individuals the right to possess firearms for self-defense in the home); McDonald v. City of Chicago, 561 U.S. 742 (2010) (holding the Second Amendment applicable to the states through the Due Process Clause of the Fourteenth Amendment).

[4] See Sneed, supra note 2 (discussing how Bruen held that courts cannot justify a gun law based on a compelling government interest, but the sole test is that any gun law must have some historical parallel to be “consistent with this Nation’s historical tradition”).

[5] U.S. v. Perez-Gallan, No. PE:22-CR-00427-DC, 2022 U.S. Dist. LEXIS 204758 (W.D. Tex. Nov. 10, 2022); William Melhado, Federal Judge in Texas Rules that Disarming Those Under Protective Orders Violates Their Second Amendment Rights, Tex. Tribune (Nov. 14, 2022),

[6] Domestic violence, also referred to as “intimate partner violence,” refers to “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.” See What is Domestic Violence?, Nat’l Coal. Against Domestic Violence, (last visited Jan. 27, 2022) (defining domestic violence).

[7] See Guns and Violence Against Women, Everytown For Gun Safety, (last visited Jan. 27, 2022) (compiling statistics on intimate partner gun violence e.g., every month an average of 70 women are shot and killed by an intimate partner, nearly 1 million women alive today have reported being shot or shot at by intimate partners, and over 4.5 million women have reported being threatened with a gun by an intimate partner).

[8] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2150 (2022).

[9] See Sarah Herman Peck, Cong. Rsch. Serv., Post-Heller Second Amendment Jurisprudence 12 (2019), at 2, (detailing the two-part analysis).

[10] Id. at 15-16 (discussing how, under part two of the inquiry, circuit courts generally applied intermediate scrutiny and consider whether a gun regulation is substantially related to the achievement of an important governmental interest).

[11] See United States v. Chovan, 735 F.3d 1127, 1137-41 (9th Cir. 2013) (finding a substantial government interest in keeping guns away from domestic violence misdemeanants); United States v. Staten, 666 F.3d 154, 162 (4th Cir. 2011) (holding that reducing domestic violence is a substantial government objective “based on common sense”); see also United States v. Skoien, 614 F.3d 638, 643 (7th Cir. 2010) (citing to statistics such as “[t]he presence of a gun in the home of a convicted domestic abuser is ‘strongly and independently associated with an increased risk of homicide’” and that incidents of domestic violence involving firearms are twelve times more likely to end in the victim’s death).

[12] United States v. Mahin, 668 F.3d 119, 125 (4th Cir. 2012); U.S. v. Perez-Gallan, No. PE:22-CR-00427-DC, 2022 U.S. Dist. LEXIS 204758, at *31 (W.D. Tex. Nov. 10, 2022).

[13] Mahin, 668 F.3d at 124.

[14] Id.

[15] Id. at 125 (citing United States v. Staten, 666 F.3d 154, 167(4th Cir. 2011)).

[16] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022).

[17] Id. at 2117

[18] Id. at 2156.

[19] U.S. v. Perez-Gallan, No. PE:22-CR-00427-DC, 2022 U.S. Dist. LEXIS 204758, at *9-11, 31 (W.D. Tex. Nov. 10, 2022).

[20] Id at *9-11.

[21] Id. at *9-10.

[22] In 1824, the Supreme Court of Mississippi stated that when exercising the right to chastise his wife a husband should not be subjected to “vexatious prosecutions.” See Virginia H. Murray, A Comparative Survey of the Historic Civil, Common, and American Indian Tribal Law Responses to Domestic Violence, 23 Okla. City U. L. Rev. 433, 441-43 (1998) (discussing the chastisement doctrine, the power of a man to retrain his wife by beating her, and its adoption by U.S. courts including courts in North Carolina, Alabama, and Pennsylvania, among others).

[23] Perez-Gallan, 2022 U.S. Dist. LEXIS 204758, at *9-12.

[24] Joe Patrice, Court Rules that Since the Framers Didn’t Care Much About Domestic Abuse, Abusers Get to Have All the Guns They Want!, Above the Law (Nov. 14, 2022),

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