At some time later today, in response to a spate of mass shootings across the United States, the Senate will vote on the first major piece of gun control legislation in nearly three decades.
This morning, the Supreme Court sought to make that entire effort close to a moot point.
In a 6-3 decision, authored by Justice Clarence Thomas, the Court not only enshrined a constitutional right to carry guns outside the home for “self-defense,” but has potentially made it far more difficult for states to regulate gun rights. In effect, the Court has placed the Second Amendment in the same rarefied air as the First Amendment. It’s quite likely that many more Americans will die as a result.
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At issue before the Court was a New York state law that requires those seeking to carry a gun in public to show “proper cause.” Before today, New York residents who wanted such a right had to demonstrate that they had a justifiable need to do so. In Thomas’s opinion he argued that this century-old New York law infringes on the constitutional right to keep and bear arms. Or in layman’s terms, he argues that individual Second Amendment rights trump the government’s efforts to protect Americans from gun violence.
Six states (California, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island) have similar laws to New York—and all those are likely to be thrown out by federal courts after today’s decision.
Thomas’s opinion, however, does more than just strike down tough permitting laws regulating the carrying of handguns in public—it establishes an entirely new set of gun rights. Previously, in 2008, the Court ruled in the Heller decision that there is a constitutional right to keep and bear arms in the home.
With today’s ruling, Thomas asserts: “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.” He's essentially saying the right to carry a gun in public is identical to the right to have a gun in one’s home.
What is so striking—and pernicious—about Thomas’s opinion is that it largely removes the ability of state officials to take into account the societal effects and inherent dangers of increased gun ownership. “Instead,” says Thomas, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
As Justice Stephen Breyer noted in his dissent, “Many States have tried to address some of the dangers of gun violence…by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds.” Breyer added: “The Court today severely burdens States’ efforts to do so.”
Even if a state could produce evidence that allowing Americans to carry guns in public increases the dangers to ordinary citizens, it’s irrelevant, says Justice Thomas, if there is no historical tradition establishing the right of a state to enact such regulations. According to Thomas, history and textual interpretation are the only considerations that states can take into effect when passing gun laws—not public safety and not the specific contexts in which Americans live and work.
In a densely packed urban environment, like New York City, an unencumbered right to carry handguns on one’s person will almost certainly lead to more gun violence and more death. As New York City officials have repeatedly warned, a negative ruling by the Court would have the potential to turn minor disagreements into major escalations. As a resident of New York, the thought of arguments over parking spots or subway seats or the better New York sports team being waged by people legally carrying loaded weapons is enough to make me never want to leave my home.
In short, it’s going to be like the Wild West on American streets, and a majority of the Supreme Court is completely fine with that.
Putting aside the Court’s disquieting contempt for public safety, what’s even more disturbing about this decision is its contempt for the views and preferences of the American people.
Courts, of course, must make legal decisions based on the merits of the law, which sometimes means issuing rulings that are opposed by a majority of Americans. But no Court can simply close its eyes to public opinion, particularly if it wants to to maintain its perceived legitimacy in the eyes of the American people. The poll numbers on gun regulation tell a clear and compelling story—Americans want more not less. They support background checks for gun purchases, oppose concealed carry laws, and back red flag laws and banning assault rifles. Thomas’ opinion opens the door to legal challenges on practically all these gun regulations.
For years, conservatives have decried judicial activism. The Court throwing into doubt a broad swathe of gun control regulations, passed by elected state legislators, is practically the definition of judicial activism.
With this decision, the conservative majority on the Court has shown, once again, that it simply doesn’t care about its legitimacy. They have the votes and they will wield them in any manner they want, irrespective of public opinion, public safety, common sense, and the law itself.
As bad as the Court’s decision on guns will be for the country, this is just a preview of what is to come. We may only be days away from the Court’s conservative majority taking away the federally guaranteed right to an abortion. The government’s ability to regulate greenhouse gas emissions could be thrown out as well.
The Supreme Court’s efforts to bend the arc of history back into the past is only just beginning.
