The Lever - “The Guns Are Here To Stay”

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The Supreme Court on Thursday struck down a New York state law limiting who can carry concealed handguns in public, a ruling that could invalidate most gun control laws throughout the country.

Critics say the court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen will likely increase gun violence, and comes one month after a mass shooting in Buffalo, New York, in which a white supremacist drove 200 miles to specifically kill Black people in a grocery store.

Authored by Justice Clarence Thomas, the ruling creates an onerous new standard for whether gun control measures are constitutional.

“To justify its regulation, the government may not simply posit that the regulation promotes an important interest,” Thomas wrote. “Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

According to UCLA law professor Adam Winkler, one of the country’s top experts on gun laws, the ruling could affect a new bipartisan gun safety bill that the Senate passed on Thursday. That bill would encourage states to implement so-called “red flag” laws, which allow firearms to be temporarily confiscated from those who are deemed to be a risk to themselves or others. It would also close the so-called “boyfriend loophole,” a gap in federal law that allows some domestic abusers to keep their weapons.

“The Court’s Second Amendment ruling calls into question key parts of the Senate gun bill,” Winkler tweeted after the decision came down. “Thomas says only gun regulations consistent with historical regulation of guns are permissible. Red flag laws, however, are a modern invention. So too bans on domestic abusers.”

Earlier this week, The Lever’s David Sirota spoke with Winkler, author of Gunfight: The Battle Over the Right to Bear Arms in America, about the New York State Rifle case and the state of U.S. gun laws. Below is an abridged Q&A from their discussion; stay tuned for next week’s Lever Time podcast episode to hear the entire conversation.

David Sirota: Before we get to the current Supreme Court case, just lay out for us where we are at this moment when it comes to how the current Supreme Court looks at gun laws in America.

Adam Winkler: Well, it’s significant that the Second Amendment had never been authoritatively interpreted by the Supreme Court to protect an individual’s right to have a firearm until 2008. In fact, for most of that time, when the court did rule on Second Amendment cases, the Court said it was only about protecting a well-regulated militia from federal interference.

But in 2008, in a case called D.C. v. Heller, the Supreme Court said that the Second Amendment does protect an individual right to bear arms, and struck down a law banning handguns in Washington, D.C. But the court didn’t provide much other guidance as to the scope of the right to bear arms, such as whether it allowed people to have military-style assault rifles or whether states could restrict concealed carry.

In the 14 years since Heller, there’s been just a tidal wave of litigation in the federal courts challenging any number of federal gun laws and the court seemed to stay out of it, until Trump had his three appointees to the Supreme Court. And that changed everything.

The court now has a big case out of New York [New York State Rifle] on concealed carry. And we’re expecting a ruling any day now. In that case, most people predict that the court is going to broadly interpret the Second Amendment to say you have a right to carry guns in public, and I think it may make it harder to defend almost any kind of gun law.

What’s the explanation for how much the court itself has shifted? Is it just individual appointees, or was there a movement specifically to put judges on the court that had a different view of guns?

The truth is, the Second Amendment is like every other constitutional provision we have, which means it is a reflection of an evolving and living society and the impact of social movements. And there’s been a real movement to change how the Second Amendment is interpreted in the courts and elsewhere. Donald Trump got elected in part by promising to elect judges that were going to broadly read the Second Amendment. That worked for him, he got elected, and then he appointed those justices. And now they’re going to do that work.

So constitutional law does not exist in a vacuum. It exists in a political environment. And we the people in America have decided we want gun rights. The Supreme Court’s reflecting that, I think.

Can you talk about how gun politics have shifted, and why and how it changed into a partisan issue?

Well, I think gun politics in America were transformed overnight. And I don’t say that to be hyperbolic.

There was a rising movement for gun owners who wanted to have guns for personal protection in the late 1960s and early 1970s. It was, like our own era, a time of social disruption and the feeling that maybe people were insecure. And there were very high crime rates at the time as well.

The leadership of the NRA [National Rifle Association] at the time was pretty moderate. They were opposed to a lot of gun control laws, but the leadership hatched a plan to move to Colorado Springs to refocus the organization away from political activity and towards recreational sports, hunting, and conservation.

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This really angered a group of hardliners in the membership. And at the annual membership meeting in 1977 in Cincinnati, these hardliners staged a coup of the NRA, where they used the rules of order to elect a whole new board of directors.

Literally when the sun rose the next day, the NRA had been transformed. And the new directors were all committed to political advocacy, fighting gun control, and being much more politically assertive. And that group became an active part of the coalition that led to Ronald Reagan being elected president in 1980, and has since become an even stronger part of the Republican conservative coalition.

Tell us what the New York State Rifle case really is about, and explain how the Supreme Court gets to deregulate guns under the banner of a Second Amendment that says that arms effectively are supposed to be well regulated.

Most states allow you to carry a concealed firearm if you have a permit — and a growing number of states don’t even require a permit. New York is one of eight states that say you can only carry a gun with a permit. And to get a permit, you have to show that you have some unusual and particularly strong reasons to carry a gun, like you’re being stalked, you’ve been threatened, or you carry a tremendous amount of cash or jewelry with you.

What this case does is question whether that’s a violation of the Second Amendment to so heavily restrict access to concealed carry permits. And the Supreme Court seems almost certain, based on the oral arguments, to say that, yes, the Second Amendment is violated by New York’s rule. The court is probably going to say you can have some training and objective requirements before you let people carry a gun on the street, but you have to provide some mechanism for people to be able to defend themselves.

This will be a great expansion of the Second Amendment. In over 200 years of history, the Supreme Court has never said that. We’ve had restrictions on concealed carry, like New York’s, for well over 100 years. In fact, up until the 1980s, most states had exactly the law that New York has today.

But again, that political movement to change America’s gun laws has been affected by the NRA, since they have led a nationwide effort, going state by state, to loosen gun laws. And now they’re going to go after the few remaining holdouts with this Supreme Court case.

I think that spells trouble for the gun safety movement’s agenda on a lot of issues. I think bans on military-style rifles and on high-capacity magazines will likely be called into question in the coming years.

Are we going to get to a place where the court is basically going to say that there is no line, that you can’t regulate weapons guns based on how powerful they are? I mean, is that a legitimate thing that may actually happen?

I think what the court is going to say is that only those arms that are in common use for lawful purposes by the citizenry already are constitutionally protected. I think the court would easily say that things like shoulder-launch missiles or nuclear weapons or hand grenades, or even machine guns, are not in common use, they’re not commonly owned by law-abiding people.

The difficulty about this test is it means that if there is a political stalemate, and you can’t get regulation for some amount of years, gun owners can just go out and buy all those weapons, and then all of a sudden they become in common use. That’s basically what’s happening with military-style assault rifles. The gun owners have just gone out and bought tens of millions of these firearms since the end of the federal assault weapons ban in 2004, and now they’re in common use.

And we might see this with 3D-printed guns. It may be that if 3D-printed guns are something that Congress were to regulate or prohibit today, then they wouldn’t be in common use. But if we wait 20 years, then maybe they are in common use, and then they’re constitutionally protected.

As somebody who’s studied this so much, do you really legitimately think that there is a future in America being as heavily armed a country as we are? Can we be this heavily armed, and also have a “normal” rate of gun deaths, as it relates to other countries?

I don’t think we can get down to the levels of gun violence that they have in England or Japan or other countries that don’t have such ready access to guns. That’s just not realistic. But we can reduce our numbers. And that should be our goal in the meantime.

The guns are here to stay. There’s just too many of them, the political movement in favor of them is too strong. The NRA is always talking about people coming in and confiscating your guns. We could never get all the guns if we wanted to. So I think we have to focus on reducing gun violence and doing what we can in a bad situation.

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