Tuesday’s massacre at Robb Elementary School in Uvalde, Texas, would seem like a powerful argument for passing new legislation to regulate firearms.
But the most likely source of immediate federal action on guns isn’t Congress. It’s the Supreme Court, which is about to issue a potential landmark ruling that could expand the reach of the Second Amendment, putting some existing state and local gun safety laws into serious legal jeopardy.
That’s right: America’s notoriously weak gun laws may soon get even weaker.
The case before the court is called New York State Rifle and Pistol Association v. Bruen. Its 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 needs to present a reasonable, tangible argument for why they need a gun for self-defense.
A basic premise of the law is that having lots of people carrying around firearms dramatically increases the likelihood of impulsive or accidental shootings. But a few years ago, two New Yorkers challenged the law, claiming it violates the Second Amendment’s guarantee of a right “to keep 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 next few weeks, and any outcome is possible, including an opinion that lets the New York law remain in place. But given the Court’s six-member conservative majority and the tenor of questions the justices asked during oral arguments, most experts expect a decision that strikes down the statute.
At that point, the big question would involve the underlying rationale of the ruling and its implications for other gun restrictions, including similar permit systems that exist in California, Massachusetts and other states that together account for about a quarter of the U.S. population.
A decision striking down the New York law would create a pretext for challenges to the other state laws too. Those challenges would have a high likelihood of success, given the federal judges who would hear their cases, and the once-radical perspective that many of those judges have brought to the bench.
Rewriting The Second Amendment
As recently as the late 20th century, the prevailing view among judges and legal scholars held that the Second Amendment was actually a guarantee to states about the right to maintain militias. The idea that the amendment recognized an individual right to gun ownership, let alone the right to carry a gun around, struck much of the legal establishment as preposterous. In 1990, former Chief Justice Warren Burger famously called the notion a “fraud on the American public.”
But by that point, aggressive gun rights advocates were well on their way to destroying that consensus, thanks to a patient, determined campaign that scholars Reva Siegel and Michael Waldman have since documented in detail.
One major element of that campaign was underwriting the research of conservative scholars who supported more expansive readings of the Second Amendment. Another was support for Republican presidential candidates who promised to appoint sympathetic judges ― and Senate candidates, mostly though not entirely Republican, who would vote to confirm them.
In 2008, that effort paid off when a conservative, Republican-appointed majority on the Supreme Court struck down a handgun ban in Washington, D.C., and in the process cited a right to individual firearm ownership that the court had never previously recognized.
Justice Antonin Scalia, who wrote the decision, said the guarantee was right there in the plain text of the Second Amendment, and that it was consistent with the nation’s history. Critics noted that Scalia seemed conspicuously less interested in the parts of the amendment talking about militias ― and called his reading of history highly tendentious. But Scalia had the votes, and his view prevailed.
The one caveat in that ruling was an allowance for the regulation of firearms, as long as the limits were reasonable and grounded in tradition. And that’s the central issue in the New York case.
The law’s challengers say it doesn’t satisfy those criteria, citing the discretion the system leaves state officials, as well as what the challengers claim were the views of the nation’s founders. Defenders of the New York law disagree sharply, noting that restrictions on the right to carry firearms have a long history, stretching back hundreds of years to the old English laws that even today remain a foundation of American legal philosophy.
But what ultimately happens in the case may have less to do with the merits of the case and more to do with who’s deciding it. The challengers need five justices to vote their way. And with six conservatives on the court ― one more than the five who first recognized a right to gun ownership ― their chances of success seem high.
Rewriting America’s Gun Laws
If a majority decides to strike down the New York law, challenges to the other, similar state laws will likely fill the federal courts, which are now packed with conservative justices highly receptive to broad interpretations of the Second Amendment. Lawsuits against other gun regulations will likely start to pile up too, quite possibly challenging even well-known, widely accepted schemes like the federal background system.
Given how aggressive some of the recent Republican judicial appointees have been about ignoring precedent and embracing once-fringe conservative theories, it’s safe to assume some of those lawsuits would succeed as well ― teeing up new cases for the Supreme Court to consider, and new opportunities to expand the Second Amendment’s reach.
By then, the U.S. will surely have experienced many more shootings, in an epidemic of firearm violence that among peer nations is uniquely American. It’s a function of the fact that it’s so easy to get a gun here ― and, perhaps soon, that it’s so easy to carry one around as well.