The Washington PostDemocracy Dies in Darkness

Opinion The Supreme Court’s gun ruling is a serious misfire

Capitol Police stand guard behind the security fence surrounding the Supreme Court in Washington on Thursday. (Nathan Howard/Getty Images)
4 min

“When I make a mistake, it’s a beaut.” — New York Mayor Fiorello La Guardia

The Supreme Court had a La Guardia moment on Thursday. Its mistake was foreshadowed in 2017, when Justice Clarence Thomas, joined in a dissent by Neil M. Gorsuch, wrote this about the constitutional right “to keep and bear arms” (emphasis added): It is “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”

Thomas was right about the framers. However, he and the five justices who joined his opinion (Roberts, Alito, Kavanaugh, Gorsuch and Barrett) were wrong on Thursday in arguing that this improbability was essentially dispositive. The case involved a challenge to New York’s 109-year-old law that required individuals seeking a license to carry firearms outside the home to demonstrate a “proper cause” for doing so.

The Second Amendment is the only one in the Bill of Rights with a preamble: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The amendment was 217 years old before the court held that it protected the gun rights of individuals, irrespective of membership in a militia.

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The 2008 case affirmed the right of individuals to “keep” an operative firearm in the home for self-defense. What, however, about the right to “bear” firearms outside the home? The 2008 court insisted that this right is, like other constitutional rights, “not unlimited,” and is compatible with “longstanding regulatory measures,” such as forbidding firearms in sensitive places.

In November’s oral argument, Chief Justice John G. Roberts Jr. not unreasonably expressed uneasiness about “the idea that you need a license to exercise” a fundamental right. Justice Elena Kagan, who on Thursday sided with New York, in November also was conflicted: It was “completely intuitive” that there should be different gun regimes in New York and Wyoming, but it is difficult to match this “with our notion of constitutional rights.”

Thomas, in his 63-page opinion, was characteristically meticulous and exhaustive in marshaling evidence of an enduring American tradition of permitting public carry of firearms by people with “ordinary” self-defense needs. And he found no “American tradition” that could justify New York’s “proper-cause requirement.”

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But in an amicus brief supporting New York, former federal appellate judge (on the 4th Circuit) J. Michael Luttig demonstrated that, regarding the public carrying of loaded guns, there is an American tradition even older than the nation of striking a “delicate balance between the Second Amendment’s twin concerns for self-defense and public safety.”

The court’s ruling, however, does not treat those as “twin,” meaning equal, concerns.

Indeed, it treats the second, public safety, as irrelevant to the framers: This concern was unnecessary to consider because the first concern, self-defense, was sufficient justification for the amendment. On Thursday, the court effectively removed from public debate the essentially legislative choice of balancing the competing values of self-defense and public safety.

Luttig noted that “democratic judgments and decisions” embodied in founding-era restrictions on public carrying of concealed weapons anticipated something the court acknowledged in its 2008 ruling: “The majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

In 1897, the Supreme Court had said it was “well-recognized” that the right to “bear” arms “is not infringed by laws prohibiting the carrying of concealed weapons.” Today, most states, including almost all that filed briefs supporting New York, have multiple restrictions forbidding concealed carry at schools, government buildings, bars, amusement parks, churches, athletic events, polling places, etc. On Thursday, the court perhaps did not invalidate most such restrictions, but it condemned itself to years of judicial hairsplitting in search of a principle about balancing judgments.

Finally, Luttig wrote: “Many [Jan. 6, 2021] riot defendants” have said they knew the District of Columbia’s restrictions on concealed carry “and accordingly left their guns at home.” This “may well have prevented a massacre that day.”

America the beautiful is today America the irritable, where road rage, unruly airline passengers and political violence — a protective fence surrounds the court — reveal a nation of short fuses and long-simmering resentments. Intelligent people disagree about how, or even whether, the facts of contemporary civic culture should influence how the Constitution, including the first 10 amendments, should be construed. But as a founder (John Adams) insisted, facts are stubborn things.