Opinion | Clarence Thomas and Brett Kavanaugh Could Change the Lives of Domestic Violence Survivors

Now, in Rahimi, the Supreme Court will decide whether deadly firearms can flood the homes of domestic violence survivors. The case arrives at the court after a Fifth Circuit decision in favor of abusers. The Fifth Circuit decided that government cannot prevent an abusive individual, against whom a court has issued a domestic violence protective order, from possessing a deadly firearm. By overturning a federal law aimed at protecting survivors of abuse, the appeals court put forth an outrageous legal theory that claims individuals with domestic violence orders have a constitutional right to possess a gun. Using Justice Thomas’s historically focused argument from Bruen as precedent, the Supreme Court could rule that domestic violence survivors today deserve only the protections they had in the 18th century — a time before most women could own property or work outside the home, let alone vote.

The stakes could not be higher. The Centers for Disease Control and Prevention’s National Intimate Partner and Sexual Violence Survey indicates that about 41 percent of women and 26 percent of men in the United States have experienced sexual violence, physical violence or stalking by an intimate partner and reported being affected by it during their lifetime. According to U.S. crime reports, about 1 in 5 homicide victims are killed by an intimate partner, and over half of female homicide victims are killed by a current or former male intimate partner. Here in New York, there are approximately 80,000 serious offenses such as assaults, sex offenses and violations of orders of protection each year across the state, and data shows that in New York approximately 1 of 5 homicides are related to domestic violence.

The Supreme Court has a choice: It can lean into the dangerous Fifth Circuit theory that guns cannot be regulated for the purpose of protecting survivors of domestic violence, or it can uphold federal law that keeps guns out of the hands of dangerous individuals.

Before oral arguments are heard, there’s no way to tell which way the Supreme Court will rule. The precedent set by Bruen is extraordinarily troubling. Yet even within the court’s majority in Bruen, there was a split. Justice Thomas kept his focus on historical arguments. But a concurrence by Justice Brett Kavanaugh, in which Chief Justice John Roberts joined, left room for certain basic protections, noting that “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”

This concurrence helped inform New York’s response to Bruen. After New York State’s century-old gun law was overturned, I took immediate steps to restore protections from gun violence, including signing new laws to strengthen training and gun licensing requirements. In the spring of 2022, we bolstered our state’s red flag laws, getting guns away from people like domestic abusers who pose a risk to themselves or others and closing loopholes that made the tragedies in Buffalo and in Uvalde, Texas possible. As a result, courts have issued roughly 9,000 extreme-risk orders of protection in the past year, up from 1,400 in the preceding two and a half years. Depending on the scope of the court’s decision in Rahimi, these protections could be at risk as well. After a brief spike during the start of the pandemic in 2020, New York is gradually and steadily returning to prepandemic shooting levels and has one of the top five lowest rates of firearm-related deaths. I’ve always said public safety is my top priority as governor, and I’m committed to using every tool at my disposal to keep our communities safe from gun violence.