Misogyny on Display in Court Rulings

MISOGYNY ON DISPLAY IN COURT RULINGS

By Thomas Coffin

NOTE: This essay also appears in this week's Eugene Weekly.

Most everyone by now knows of the Dobbs case from the Supreme Court which overruled Roe v Wade. It is noteworthy, as well as foreboding, that the majority conservative bloc on the Court instructed us that their search of history revealed no evidence that women had any rights in their bodies that were ever recognized (by the exclusively male power ruling institutions existent over the millennia prior to the adoption of our Constitution in 1789). 

Rather than condemn that history as inequality and injustice borne of ignorance, the Court instead voted to perpetuate it as if chiseled in stone, with no flexibility despite evolving knowledge and societal recognition of basic human rights applicable to all people. 

This, in reality, is the grim fallacy of originalism, the technique of interpreting the Constitution through the lens of its long dead, white male, slaveholding drafters and the traditions of their era.

It sentences today’s populace and legislators to bear the chains of yesterday’s limited knowledge and even prejudice. A fair analogy would be a Supreme Court ruling that modern medicine is constitutionally limited to those remedies for disease known to doctors in the 18th century. 

Dobbs is one example of jurisprudence lagging far behind society. To peg a judicial ruling in the 21st century on archaic views about women centuries ago is not only irrational, it carries on the despicable tradition of misogyny in past cultures.

Thus the Fifth Circuit Court of Appeals applied the originalist formula using the lens of dead white 18thcentury males to legislation prohibiting possession of firearms by those with domestic violence restraining orders, to rule that such violates the 2nd Amendment rights of the abuser (United States v Zackey Rahimi).

This case illustrates the folly of the originalist approach to today’s issues and attempts to fashion legislative solutions. First, the firearms of 200 years ago are not the firearms of today. A single shot musket is not the firearm of a high velocity semi-automatic with large capacity magazines and high velocity bullets that pierce body armor. Second, domestic violence committed by the firearms of yesteryear does not appear to have been an issue addressed back then, so it is not surprising to find no guidance from analogies in that era. We live in different times with exponentially greater dangers from the weaponry on the market now, not then. Yet the courts are supposedly bound by a dearth of guidance from a non-existent and even ignored problem in past history. In colonial times, for example, the “rule of thumb” test permitted the husband to beat his wife and children with a stick so long as the stick was not thicker than the width of his thumb. How’s that bit of enlightenment worthy of modeling today? 

The facts of the Rahimi case are disturbing and, if anything, demonstrate the need to prohibit possession of firearms by those presenting a threat of domestic violence. Rahimi had a history of gun violence—he had fired multiple shots into a person’s residence, followed the next day by shooting at a driver of a vehicle that he had an accident with, returned in a different car and shot again at the other car, subsequently shot at a constable’s vehicle, and continued his spree by firing multiple shots in the air after an acquaintance’s credit card was declined at a burger restaurant. A restraining order was filed against him after he allegedly assaulted his girlfriend which prohibited him from stalking her or possessing a firearm. He nonetheless continued to possess firearms despite the order and was charged with a felony under federal firearms law. The Fifth Circuit overturned his conviction, holding that, notwithstanding his history of gun violence, the Court’s search of history of 18th century and even prior common law heritage did not reflect any analogies which would indicate that our forefathers would have taken away his right to possess guns under the 2ndAmendment. Translated—back in those days, the victim was fair game for retribution rather than forfeit the abuser’s right to a gun.

That’s originalism in a graphic nutshell. It is beyond stupid. It confronts modern problems with ancient views about other things far off the mark. If the reader has the appetite, I invite him/her to digest the Court’s fare about Charles I, Charles II, Oliver Cromwell, the English Militia Act of 1662, etc. on a trip down the rabbit hole.  Bottom line—all this is a nonsensical distraction to keep our country marooned in a time warp of white male supremacy governance.

I apologize in advance, but here is a link to what domestic violence with modern weaponry results in all too often. This is the outcome that absolutist 2nd Amendment jurisprudence wreaks on its victims. Incidents like these are what drive meaningful gun regulation and my personal mission to call attention to the urgent need to protect the people, not the absolutist gun rights advocates or the profit margins of the gun industry. This is the true cost, paid every day throughout our country, because of our clueless unhinged judiciary that wants to be guided forever by dead white guys. This is even insulting to the memories of the deceased Founders, who placed the interests of the people in life, liberty, and the pursuit of happiness as the supreme goal of government.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020 and at Politics and Pie in October, 2022.  He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.  The Blackberry Pie Society is pleased to include a collection of his essays on our website.  We will post them as they become available.

posted 2.9.2023