Supreme Court ignores nation’s gun nightmare

Ever since the U.S. Supreme Court ruled in 2008 that the Second Amendment guarantees Americans’ right to own firearms, lower-court judges have been wrestling with the decision’s explicit caveat that that right is subject to “reasonable” regulations.

On Thursday, the court’s new super-majority ruled 6-3 that those regulations are only valid if they are similar to gun laws on the books when the Second Amendment was adopted in 1791, or when they were applied against the states when the 14th Amendment was ratified following the Civil War.

Writing for the majority, Justice Clarence Thomas ruled that New York’s requirement that licenses to carry handguns in public be granted only with good cause is at odds with American history, and therefore with the Second Amendment.

Gun violence, the court reasoned, is an old problem. If the Founders had wanted to limit handguns to those who could show special need for them, they would have adopted such laws in the 18th century. They didn’t, and neither may New York, Thomas writes.

That reasoning ignores the ravening nature of gun violence across the nation, including in New York.

Nowhere in the majority opinion is there any direct mention of the mass shootings that have become increasingly common, other than in a footnote waving off those concerns.

Thomas acknowledges that Justice Stephen Breyer chronicles “in painstaking detail” examples of gun violence that have rocked communities large and small across the country. But the court, he says offhandedly, long ago acknowledged the right to own guns is not the only constitutional right with “controversial public safely implications.”

Controversial public safety implications?

That’s one way to describe the hellscape of modern gun violence. Parents in Uvalde, whose children were so disfigured by AR-15 rounds used to kill them they had to be identified by DNA samples, may have other words to use. Communities in Tulsa, Buffalo and others are also still reeling from recent mass shootings. But mass shootings are hardly the only ways that America’s extraordinarily permissive gun culture has turned deadly. More than 45,000 Americans were killed by firearms in 2020.

Across the country, state and federal lawmakers are being asked to find ways to slow the dismal tide of violence. Even in a closely divided Senate, progress on a modest set of new rules is underway. Fifteen Republicans voted for a modest set of reforms Wednesday in a test vote on legislation expected to clear the Senate as soon as Thursday night.

But Thomas waves off gun violence in America as nothing more than a present day example of a very old problem. Even in the 18th century, he writes, New York was concerned about gun violence in the city. So what could possibly be so new about violence today that it would justify tougher restrictions on gun ownership?

That kind of reasoning is proof of an extraordinary ignorance of the current moment.

In his dissent, Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, warned that just when governments are seeking ways to make gun ownership safer, the new ruling will make their efforts more difficult.

“Many states have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds,” Breyer writes. “The Court today severely burdens states’ efforts to do so.”

Refining Heller

In the years since the 2008 Heller decision, which permits “reasonable restrictions” on gun ownership, lower courts have developed a two-part test for determining when such restrictions go too far. As with many constitutional tests adopted by the courts over the years, it included as its second step a balancing test. How important was the interest the government was trying to protect with the regulation compared to how much the law burdened gun rights?

The court on Thursday struck down any such balancing act as too restrictive.

“Despite the popularity of this twostep approach, it is one step too many,” Thomas writes.

The Second Amendment is clear, he writes, that the right to bear arms is guaranteed. If a state or city wants to limit those rights, its rules must find an analogous example of restrictions in our history, he continues.

Majority opinion does not mention recent mass shootings.

What it means for Texas

In states such as Texas where gun restrictions are few, the implications may well be more political than legal. Since Heller, the right to own a gun has been unquestionably rooted in the Second Amendment. But many gun advocates here have argued that the right to carry a gun in public is similarly supported, even though that was not part of the Heller opinion. Texas lawmakers embraced the idea of “constitutional carry” in 2021, when they passed a bill that allows gun owners to carry their weapons without a permit.

The court’s ruling Thursday that the Second Amendment specifically protects the right to carry weapons in public will surely embolden that interpretation, Texas Southern University law professor Martin Levy told us.

“When you get into states like Texas, it will even further arm them if you will,” he said.

What other gun laws are at risk?

Just how much the new opinion will limit future attempts to regulate guns is unclear. How will the court handle questions about red-flag laws? Would the court’s previous findings permitting restrictions on unusual weapons, such as machine guns, be respected? What about challenges to an assault rifle ban, should Congress reimpose one? What about age restrictions, such as a federal law that denies handguns to anyone under 21?

Since Heller, these kinds of restrictions, while politically contentious, have largely been understood as legal. But will the court’s newly singular focus on the law of gun ownership in the 18th century change that thinking? Could states, or Congress, argue that mass shootings conducted by those armed by AR-15s represent a new problem that was unknown to the Founders?

Or will the court simply, as it did in the case of handgun violence in New York, say that gun violence, writ large, is nothing new, and let lawmakers from the 18th century have the final word?

In two concurring opinions, justices stressed the limited impact of Thursday’s opinion.

Many states’ laws requiring permits that are easier to acquire than New York’s were not challenged in the current case, they noted.

And Justice Samuel Alito writes separately to argue that the majority’s opinion “decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kind of weapons that people may possess.”

That’s true, but the sweeping nature of Thomas’ opinion, which drew six votes, puts on notice that any gun restriction not in place centuries ago is suspect.

Given the tragedies unfolding all across the land, where roughly 400 million firearms are registered, that’s frightening.