SCOTUS's Latest Gun Ruling Hides the Bodies
When video of the police response to the Uvalde shooting was released recently, news outlets who showed it told viewers, horrifically and hauntingly, that “the sound of children screaming has been removed.” The same tagline could be stamped on the majority and concurring opinions in NY State Rifle & Pistol v. Bruen, the Supreme Court’s most recent gun case extending 2nd Amendment rights to cover the carrying of firearms in public. Viewed properly in their full context, these opinions are soaked in blood, yet death is omitted from their pages. There are no bullet wounds. No dead children. No husbands standing over their dead wives with a hot gun in their hands. No mass shooters taunting their hunted victims. There are, in short, no bodies. Like an efficient mob hit, the court’s majority opinion has hidden them.
Here are the basic facts of the case: New York requires a permit to carry a gun outside the home, and most permits only allow people to transport their guns from one allowable place to another, like from their home to a firing range in a locked box in their car. Two men, Brandon Koch and Robert Nash, applied for unrestricted permits. They were told they could carry concealed firearms for outdoor activities like camping and hunting, but not in places “typically open to and frequented by the general public” (Breyer 11). Rather than appeal the decision, as is typical, Koch and Nash sued the deciding judge, claiming their 2nd Amendment rights had been violated. The court dismissed their case “follow[ing] Second District precedent holding that New York’s licensing regime was constitutional” (Breyer 11). The case then proceeded to the Supreme Court, which overturned the District Court’s ruling, declaring New York in violation of the 2nd Amendment for its licensing practices.
For anyone who values pragmatic problem-solving, reading Clarence Thomas’s majority opinion and the concurrences by Samuel Alito, Brett Kavanaugh and Amy Coney Barrett can be a maddening experience for many reasons. But the biggest reason, and the one I want to examine first, is this: While bodies pile up in the present, these justices’ minds dwell almost entirely in the past. This is because the Bruen decision aims to make another major change to U.S. gun law beyond enshrining the right to carry a gun in public: it also states that judges must decide 2nd Amendment cases solely on the basis of whether gun laws stick to established tradition and stay consistent with the constitutional framers’ intent, and that judges must not look at current gun-violence statistics and whether and how a given law reduces gun-related problems.
Thomas closes the door on judges consulting modern data in their decision-making when he says they have no business applying “means-end scrutiny” to gun cases. He notes that “Courts of Appeals have developed a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny” (2). The “history” step involves comparing a given law with the 2nd Amendment, state laws around the time of the framing, and other related documents that help us understand what people meant by words like “arms” and “bear,” and then deciding whether the law in question upholds or violates 2A rights and the tradition they are part of. The second step – the “means-end” step – looks at the intent and effectiveness of the given law, weighing a state’s interest in reducing gun-violence against any burden the law might place on a citizen’s gun-related rights. “The Court,” says Thomas, “rejects that two-part approach as having one step too many” (2). Explaining further, Thomas says it isn’t practical to “ask[] judges to make difficult empirical judgments about the costs and benefits of firearms restriction, especially given their lack of expertise in the field” (2). To be clear, Thomas is not saying that a law’s ability to reduce gun deaths and injuries should be weighed less than its faithfulness to the 2nd Amendment. He’s saying a law’s ability to save lives is fully irrelevant and should be left entirely out of judges’ decision-making processes. This is the new standard of judicial reasoning in gun cases that Bruen enshrines.
This philosophy results in reasoning so disconnected from the realities of the United States of America circa 2022, where more guns reside than people, that simply taking it seriously is, at certain moments, quite difficult. Yet we must take it seriously, because this reasoning now comprises the reigning legal doctrine in 2nd Amendment law.
One example is from Thomas’s review of historical laws banning public carry of “unusual” weapons, meaning weapons not “in common use.” Thomas says that it’s fine to regulate such weapons because that’s what laws in the past have done. But it’s not fine to regulate common, widely used weapons, because past laws single out “unusual” weapons. Semiautomatic handguns and AR-15s? Those aren’t unusual. Lots of people own them, so they can’t be heavily regulated. And of course, Thomas’s history-only approach allows him to ignore questions about what causes guns to become common, like industrialized production and mass marketing. Playing out Thomas’s approach just a little, an unusual weapon not in common use could be judged too dangerous for public carry but legal for home defense. Then once enough people have bought one so that it becomes common, or not unusual, it is then eligible for public carry and ineligible for strict regulation. What started as a statute motivated by public safety becomes a popularity contest solved by marketing. In his dissent, Breyer responds to Thomas’s reasoning by noting that popularity cuts both ways: “[H]andguns are also the most popular weapon chosen by perpetrators of violent crimes. In 2018, 64.4% of firearm homicides and 91.8% of nonfatal firearm assaults were committed with a handgun” (8). Thomas is silent on this side of the “in common use” coin.
Another example of reasoning disastrously disconnected from the present occurs when Thomas points out that historical gun laws, especially those in effect around the time of the constitutional framing, “prohibit bearing arms in a way that spreads ‘fear’ or ‘terror’ among the people,” and that the spreading of terror “require[s] something more than merely carrying a firearm in public.” The point is that it is only permissible to forbid public carrying of firearms done in a terrifying way, and that simply carrying is not enough to be terrifying. Importantly, the judgment that “merely carrying a firearm in public” is not terrifying enough to permit regulation comes from 1686. So for Thomas and the majority, what’s relevant is not whether people are scared now, in the age of mass shootings, but whether a carried gun frightened people more than 300 years ago. Since the majority’s historical study decides it did not, the very reasonable fear of carried guns in the 21st century is not germaine.
In addition to these specific examples, some of the overall assumptions and consequences of the history-only approach to regulation fly so baldly in the face of pragmatic governance that they are offensive to common sense. If the test of a new law is, “Does it comply with tradition?” then we can’t simply say, “We tried all these things in the past, and they didn’t work, so we’re going to try something new.” Trying something new is what is expressly forbidden. Even though the old approach is precisely what landed us in our present jam, we must stick to it. Imagine applying this line of reasoning to nearly anything else, like losing weight, or improving your relationships. It’s doomed from the start because it forbids precisely what is necessary. The method that the majority insists on reverses the simple idea that those who don’t know history are doomed to repeat it, and is foisted upon us in the name of history by people who claim to know it. Our only choice is repetition of things we’ve already done.
In light of these absurdities, Stephen Breyer’s dissent brings a dose of pragmatism. Breyer seems to have noticed that the majority goes out of its way to hide the bodies piled up by gun violence, bringing them into his very first sentence – “In 2020, 45,222 Americans were killed by firearms.” – and devoting most of his first nine pages to gun-violence data. The dead have a prominent place in Breyer’s dissent but not in the majority opinion in part because of the different ways the two sides have framed the central question of Bruen. In his concurrence, Alito is especially concise: “[T]oday’s decision … holds that a State may not enforce a law, like New York’s Sullivan Law, that effectively prevents its law-abiding residents from carrying a gun for [self-defense]. That is all we decide” (2). But Breyer says, “The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence” (2-3). For Alito and the majority, the central problem is whether someone who has not disqualified themselves from owning a gun can carry it in public. For Breyer, the central problem is gun violence and whether states can address it by passing laws.
One way of understanding the difference between these two versions of Bruen’s central question is that Breyer is focused on the public problem of gun violence and legislatures’ ability to confront it, while the majority is focused on the private or individual desire for self-defense and legislatures’ tendency to interfere in their ability to fulfill that desire. In Breyer’s public-centered framing, the real-world effects of gun violence on individuals and society are paramount. In the private framing of the majority, the desires and feelings of individual people – specifically the desire to carry a gun – are paramount. This public-private split is shown especially clearly in a bit of back-and-forth between Alito’s concurrence and Breyer’s dissent. One of Breyer’s chief complaints against the majority is that the Bruen case never made it to the fact-finding stage, in which data supporting the two sides would be gathered and presented at trial. This would show, for example, exactly how often New York rejects requests for unlimited public carry licenses. Breyer, focused on gun violence as a public issue, wants more data about how the New York law works in practice, and faults the majority for not allowing it. Alito responds to this criticism: “[T]he dissent … chastises the Court for deciding this case without a trial and factual findings about just how hard it is for a law-abiding New Yorker to get a carry permit. The record before us, however, tells us everything we need on this score” (6). “[E]verything we need to know” is this: New York’s Solicitor General was asked if someone could get a carry permit “if she pleaded, ‘[T]here have been a lot of muggings in this area, and I am scared to death” (6). The Solicitor General replied that, generally, no, she would need to show more. For Alito, all that matters is that a New York resident feels frightened and has been prohibited from acting on that fear, whereas Breyer seeks to balance people’s individual feelings against the state’s interest in reducing the presence of guns in public life. In his response to Breyer’s statistics showing the sheer volume of guns in this country and the death and injury they cause, Alito says that Breyer “appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun” (4, emphasis added).
It’s not surprising that Alito thinks of guns as a matter of individual preferences and feelings, especially since he signed the majority opinion in the court’s 2008 Heller decision, which found for the first time that gun ownership is an individual right held by private citizens rather than one connected to militias or public service, as had been previously held. What is striking, however, is just how fully privatized he considers gun ownership and carrying to be. Data about mass shootings, suicides, and children injured and killed by firearms are, for Alito, irrelevant in Bruen, and he takes particular aim at Breyer’s use of these data in his dissent, in a tone that is almost mocking:
Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? … What is the relevance of statistics about the use of guns to commit suicide? … The dissent cites statistics on children and adolescents killed by guns, but what does this have to do with the question [of] whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home?
It’s hard to believe that Alito does not understand that Breyer’s dissent is attempting:
1) to show the depths of gun-related problems that states try to confront with laws the majority has now declared unconstitutional;
2) to show why a history-only approach to judging gun regulations is inappropriate for a time profoundly more ravaged by gun-violence than the time to which the majority insists we turn our attention;
3) to show exactly what is omitted by a judicial philosophy that takes the causes and effects of gun violence off the table. That is, to show us the bodies the majority wishes to hide.
All in all, the majority opinion and concurrences in Bruen are callous and impractical. And on a deeper level, they reveal the court as an institution actively opposed to government using law as a tool for problem-solving. To them, law is instead a tool for upholding tradition, even if those traditions are the literal driver of mass death. I realize these pronouncements sound extreme, and make me sound extreme. But the evidence seems clear, and the consequences of the majority’s decisions are likely to be disastrous - but not for these justices, who are so isolated from consequences that they can simply choose to ignore them, and use objectively irresponsible arguments to do so, without losing one bit of their cloistered power.