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Opinion The Supreme Court is ready to gut every blue state’s gun laws

(Jessica Tezak for the Washington Post)

Gun advocates like to say that an armed society is a polite society — in other words, if everyone is carrying guns all the time and we’re all terrified that even the slightest disagreement or misunderstanding could turn into deadly violence, we’ll be nicer to each other. This view is utterly at odds with reality and evidence of an almost psychotic morality. But on Thursday, the Supreme Court took us one giant step toward making it our future.

In a 6-to-3 decision written by Justice Clarence Thomas, the court struck down a New York state regulation that required people to show a special need before carrying their guns in public. The opinion also invalidated similar laws in a half-dozen other states.

While not taking us quite to the unfettered firearm free-for-all some conservatives would like, the decision is extremely significant, both in its immediate effects and in what it portends. This court isn’t done expanding gun rights, not by a mile.

The Supreme Court on June 23 said New York's gun law was too restrictive and violated the right to carry firearms outside the home for self-defense. (Video: The Washington Post, Photo: Erik S Lesser/EPA-EFE/REX/Shutterstock/The Washington Post)

The best place to start may be with a brief concurrence written by Justice Brett M. Kavanaugh, who insisted that the decision was narrow in scope. “Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations,” he wrote, stressing that the decision didn’t affect the 43 states that have some form of “shall issue” concealed-carry regimes, in which people are presumed to have a right to carry a gun.

But reading through Thomas’s opinion, that’s hardly the impression one gets. Thomas explicitly nullifies the approach many appeals courts have taken, in which the practical impact of gun regulations is considered.

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In effect, he rules that the Constitution doesn’t care how many Americans are slaughtered with guns every day. The only consideration courts should employ, he suggests, is whether a contemporary gun regulation has a very similar historical analogue from the time of the nation’s founding.

Thomas presents a parody of “originalism,” an interpretive dance through history in which events, regulations, judicial rulings and the comments of historical figures are embraced as gospel or rejected as irrelevant, depending on whether they support the conclusion that people must be allowed to carry guns wherever they please. Here’s how he sums it up:

[W]hen a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.

In other words: If I decide a gun regulation in place today isn’t precisely the same as a regulation from the 18th century, that means today’s regulation is unconstitutional. Ta-da!

Thomas then calls this “straightforward historical inquiry.” You can almost hear him giggling.

Despite Kavanaugh’s caveats, it isn’t hard to see the implication of this line of reasoning. While Republican states have been frantically passing “permitless carry” laws — allowing almost anyone to carry a gun almost anywhere, with no license or training or background check required — many Democratic states still have licensing requirements. Some would like to make them even stricter. So what will happen to those requirements in light of this ruling?

Nothing directly, since the decision strikes down only state laws that require someone to show a reason they need to carry a gun. In the short term, although your state won’t be able to ask you why you want to carry, it can still impose other requirements on you before you do.

But it’s all but certain that gun advocates will very quickly prepare lawsuits challenging all those requirements, based on Thomas’s ruling and its demand that today’s gun regulations mirror those in place in the 18th century. Your state says you have to complete a gun-safety course before getting your license? But there weren’t gun-safety courses in 1787! Strike it down! There were no background checks in 1787, either, or limits on large-capacity magazines, or age minimums for who could have a gun.

All those rules are now in jeopardy. As Slate’s Mark Joseph Stern said, this decision “has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.”

We can’t say how many of those challenges will succeed. But the conditions have been set for more and more regulations to be struck down. Kavanaugh once insisted in a dissent as an appeals court judge that “there is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles," as he said a ban on assault weapons should be struck down. This suggests Kavanaugh’s claim that the current ruling will leave many regulations intact might not survive what appears to be his real hostility to such regulations.

To understand what this will mean for the lives we live, focus on two words that appear many times in the decision: “fear” and “terror.” A 1795 Massachusetts law discussed in the decision provided for the arrest of those “as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth,” and there were similar laws elsewhere. But the court’s conservatives hold that because today America is drowning in guns, their appearance in public is now so common that no one should feel terrorized by them.

Today’s gun advocates, on the other hand, know that’s not true. In fact, many of them enjoy carrying their guns in public precisely because they get a thrill from seeing their fellow citizens terrorized. Recently a man walked into an AT&T store in Tulsa wearing a tactical vest and carrying a military-style rifle, causing a panic — but he was within his rights as established by the state. (He ended up being arrested for carrying brass knuckles, which are illegal there.)

The people who were terrorized, and who don’t want to go to their grocery store to find some young man with an AR-15 strapped to his back, have few rights the Supreme Court finds worthy of protecting, unless they want to arm themselves.

To most of us, that scenario sounds terrifying. But it’s the future this court appears poised to impose on the country.