Following yet another horrific school massacre—in which the lives of numerous children, teachers, and their families in Uvalde, Texas were destroyed by an 18-year-old wielding a pair of AR-15s—legal experts are warning that the U.S. Supreme Court’s right-wing majority is likely to soon make the nation’s gun violence crisis even worse.
At issue is the high court’s looming decision in New York State Rifle & Pistol Association v. Bruen.
The court’s reactionary justices, most of whom were appointed by Republican presidents who lost the popular vote, are “potentially poised to take down one of the nation’s oldest and most restrictive gun-control laws this summer,” the Washington Post reported last week. That could “unravel laws across the nation restricting who can carry guns in public,” further increasing the presence of firearms in a country that has more guns—now the leading cause of death among children in the U.S.—than people.
“The Supreme Court’s conservative supermajority is about to dramatically expand the scope of the Second Amendment and prohibit us from protecting our communities by enacting gun safety laws through the democratic process,” journalist Mark Joseph Stern warned soon after Tuesday’s killing spree at Robb Elementary School.
That atrocity was one of more than 3,500 mass shootings in the U.S. since 26 people, including 20 kids under the age of seven, were slaughtered at Sandy Hook Elementary School in Newtown, Connecticut in late 2012. Less than a week ago, an 18-year-old white supremacist murdered 10 Black people at a Buffalo supermarket.
As journalist Joe Patrice noted earlier this week when writing about New York State Rifle & Pistol Association v. Bruen, “Oral argument made clear that the majority of the Supreme Court will yet again obliterate even the mildest of gun regulations in service of its gun lobby masters.”
“Despite knowing exactly how this is going to turn out, the Supreme Court is likely to sit on this opinion now,” wrote Patrice. “We could have seen it as early as Tuesday, but the conservative majority that brands itself as ‘just calling balls and strikes’ is sufficiently cowardly that it won’t risk declaring a concealed carry free-for-all one week after a school massacre.”
The Post-Standard, a Syracuse-based newspaper, recently explained how the most consequential Second Amendment case in over a decade started after a pair of applications for concealed carry permits were denied in upstate New York:
A lawsuit filed by two Rensselaer County men challenges the state’s requirement that gun owners must have a justifiable reason—referred to as “proper cause”—to get a concealed carry permit. Permit applicants must now state why they have a need to carry a gun in public. For example, it could be because they have been threatened or their job places them in danger.
The Rensselaer County men are making the case that applicants should not have to give a reason for why they want to carry a concealed gun in public. They argue they have that right under the Second Amendment.
In a brief for the court, the U.S. Justice Department wrote that “the Second Amendment protects an individual right to keep and bear arms, but that right is not absolute.”
Contrary to what you may have been led to believe, until 2008, no federal court had held that the Second Amendment conveyed a right to own a gun. On the contrary, the Supreme Court clearly said that it didn’t.
And what had once been a fringe view rejected by the Supreme Court—that the Second Amendment gave individuals a right to own guns—gradually became Republican Party gospel when the fringe took over the party. Former Chief Justice Warren Burger (a conservative appointed by Richard Nixon) described it as “a fraud on the American public.”
When the high court hands down its decision in New York State Rifle & Pistol Association v. Bruen, the right-wing majority will pretend that “it is applying neutral historical and factual principles, when it will in truth be distorting the history and original meaning of constitutional language to achieve a partisan political outcome that is disfavored by vast majorities of Americans,” Stern and Dahlia Lithwick wrote this week in Slate. “That is because what majorities of Americans actually want doesn’t matter to them.”
The high court’s decision will reverberate far beyond New York. Seven other states—including California, Connecticut, Deleware, Hawaii, Maryland, Massachusetts, and New Jersey—plus Washington, D.C. and several big cities have similar laws restricting concealed carry permits. The eight states have a combined population of 80 million people, roughly one-fourth of the national total.
The Post-Standard noted that the court’s decision comes in the wake of “40 years of state-level legislative rollbacks of concealed carry regulation in the United States. Since 1981, the number of states with a law similar to New York has decreased by more than two-thirds, according to a review of state-level gun laws by SUNY Cortland professor Robert J. Spitzer.”
Eric Ruben, a Second Amendment expert and assistant law professor at Southern Methodist University, told the newspaper that “the next-day ramifications of striking down this gun law would be greater than the next-day ramifications for any other Second Amendment case that the Supreme Court has decided.”
Highlighting the broad implications of the case for gun regulations in general, Susan Liebell, a professor at St. Joseph’s University, predicted that “we will see more states’ laws struck down.”
According to The Post-Standard:
She and Ruben said striking down the law could invite legal challenges to New York’s SAFE Act, which broadened the definition of assault weapons, required background checks for ammunition sales, forced gun owners to report when their guns were lost or stolen within a day, and required mental health professionals to report patients to police if they believe the patient is likely to harm others.
Ruben said other laws that could come under attack place restrictions on magazine capacity, impose zoning requirements for shooting ranges, and limit the possession of firearms by those who have been deemed mentally ill or have past convictions.
As Lithwick and Stern pointed out, “The court may not actually be able to find a politically convenient moment to hand down this opinion; between a Buffalo gun massacre, Orange County church murders, and a massacre of Texas schoolchildren on Tuesday, it’s clear that there will always be another mass shooting immediately before, or on, Supreme Court opinion days.”
“The justices themselves won’t face the lethal consequences of their own Second Amendment rulings,” Lithwick and Stern wrote. “Justice Antonin Scalia’s reasoning from D.C. v. Heller preemptively upholding ‘laws forbidding the carrying of firearms’ in ‘government buildings’ will stand, although it represented dicta and not official doctrine. And Republican senators won’t face the lethal consequences of their failures to act after Columbine, after Sandy Hook, after Parkland, and after today.”
The pair continued: “The judiciary will uphold the prohibition on guns in the halls of the Congress and the Supreme Court. Indeed, the NRA just announced that guns will be banned during Donald Trump’s speech at Friday’s NRA conference.”
“We know what is required to fix this mess,” wrote Lithwick and Stern. “End the filibuster. Expand the Supreme Court. Admit new states. Shift political power away from the rural whites who hold a disproportionate amount of it and toward the multiracial urban centers that make up a majority of the country. Create the truly representative democracy that people have been denied for far too long.”
“Until then, we will be at the mercy of conservative jurists and lawmakers making choices that kill us and our families,” they added. “That they can still exempt themselves from these ravages isn’t a coincidence. It’s both evidence of the crime and proof that, as long as they’re in charge, the killing will never stop.”
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