Tuesday’s massacre at Robb Elementary School in Uvalde, Texas, seems a strong case for passing new legislation to regulate firearms.
But the most likely source of immediate federal action on guns is not Congress. It is the Supreme Court, which is about to make a potentially groundbreaking ruling that could expand the reach of the Second Amendment, putting some existing state and local gun safety laws in serious legal jeopardy.
That’s right: America’s notoriously weak gun laws may soon become even weaker.
The case before the court is called New York State Rifle and Pistol Association v. Bruen† The subject is a state law that requires people to get a permit if they want to carry a gun in public. To get the permit, a person must present a reasonable, tangible argument as to why he needs a gun for self-defense.
One premise of the law is that having lots of people carrying firearms dramatically increases the chances of impulsive or accidental shootings. But a few years ago, two New Yorkers challenged the law, claiming it violated the Second Amendment’s guarantee of the right “to have and bear arms.” Their case made its way through the federal judiciary to the Supreme Court, which heard it in November†
A decision is likely to come in the coming weeks and any outcome is possible, including advice that keeps New York law in effect. But given the Court’s six-member conservative majority and the thrust of the questions asked by the judges during… oral argumentsmost experts expect a decision to remove the statute.
At that point, the big question would be the underlying rationale of the ruling and its implications for other gun restrictions, including: comparable permit systems that exist in California, Massachusetts, and other states that make up about a quarter of the U.S. population.
A decision to repeal the New York law would also provide a pretext to challenge the other state laws. Those challenges would stand a good chance of succeeding, given the federal judges who would hear their cases, and the once-radical perspective many of those judges brought to the bench.
Rewriting the Second Amendment
It was not until the late 20th century that the prevailing view among judges and jurists was that the Second Amendment was in fact a guarantee to states of the right to maintain militias. The idea that the amendment recognized an individual right to gun ownership, let alone the right to bear a gun, found ludicrous among much of the legal establishment. In 1990, former Chief Justice Warren Burger called the term a “fraud of the American public.”
But at the time, aggressive gun rights advocates were well on their way to destroying that consensus, thanks to a patient, determined campaign that scholars Reva Seal and Michael Waldman have since been documented in detail.
An important part of that campaign was endorsing the research of conservative scholars who supported expanded readings of the Second Amendment. Another example was support for Republican presidential candidates who promised to appoint sympathetic judges—and Senate candidates, mostly but not entirely Republicans, who would vote to confirm them.
In 2008, that effort paid off when a conservative, Republican-nominated majority on the Supreme Court overturned a small arms ban in Washington, DC, citing a right to individual firearms ownership that the court had never recognized before.
Justice Antonin Scalia, who wrote the decision, said the guarantee was right in the plain text of the Second Amendment and that it was consistent with the country’s history. Critics noted that Scalia seemed noticeably less interested in the parts of the amendment that dealt with militias — calling his reading of history highly tendentious. But Scalia had the votes and his opinion prevailed.
The only caveat in that ruling was compensation for the regulation of firearms, so long as the limits were reasonable and based on tradition. And that is the central issue in the New York case.
The law’s challengers say it doesn’t meet those criteria, citing the discretion the system leaves to state officials, as well as what the challengers claim were the views of the nation’s founders. Defenders of New York law strongly disagree, noting that restrictions on the right to carry firearms have a long history, stretching back hundreds of years to the old English laws that remain a foundation of the law even today. American legal philosophy.
But what ultimately happens in the case may have less to do with the substance of the case and more with who decides. The challengers need five judges to cast their votes. And with six conservatives on the court—one more than the five who first recognized gun ownership—their chances of success seem high.
Rewrite America’s gun laws
If a majority votes to repeal New York’s law, the other similar state laws will likely fill the federal courts, which are now full of conservative judges who are very receptive to broad interpretations of the Second Amendment. Lawsuits against other gun regulations are also likely to start piling up, challenging even well-known, widely accepted regulations like the federal background system.
Given how aggressive some of the recent Republican court appointees have been in ignoring precedents and embracing conservative theories that were once on the fringe, it’s safe to assume some of those lawsuits would succeed as well — raising new cases that the Supreme Court should consider, and new opportunities to extend the reach of the Second Amendment.
By then, the US will surely have seen many more shootings, in an epidemic of gun violence that is uniquely American among similar countries. It’s a function of the fact that it’s so easy to get a gun here and, maybe soon, that it’s so easy to take one with you too.
