The Washington PostDemocracy Dies in Darkness

Opinion A bold new push shows how blue states can resist the Supreme Court

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5 min

To many Americans, the idea that you might encounter numerous armed people on a routine trip to the supermarket seems like a dystopian nightmare of threatened violence and unceasing fear. To others — including a majority of the Supreme Court — it sounds like “freedom.”

The court’s recent ruling in New York State Rifle & Pistol Association v. Bruen, which invalidated state laws requiring people to show a special need to carry guns outside their homes, essentially said that every state must have a gun regime of the kind that red states favor.

Already, New York state is out of the gate with a response: Legislators there are poised to pass a new system governing concealed carry that tries to restore some semblance of sanity after the court struck down the law that had previously been in place.

Hopefully, this is a sign that liberal states will now create regulations that allow their citizens to live in something resembling the kind of society they want. What we don’t know is what new regulations the court’s conservative majority will tolerate.

The central problem the Supreme Court had with New York’s century-old law was that it rendered only certain people eligible to carry guns; setting aside a few narrow categories, such as former felons, the court insisted that just about everyone has that right. Even so, it left a few cracks through which meaningful regulations can pass.

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Within that new reality, liberal legislators need to be as aggressive and comprehensive as possible, even knowing there’s a good chance the court will come back and strike down some of the new laws.

They have their work cut out for them. Justice Clarence Thomas’s decision in Bruen set out a positively deranged legal standard — that if any contemporary gun regulation doesn’t have “a distinctly similar historical regulation” from the 18th century, then it is presumptively unconstitutional.

This is the “heads I win, tails you lose” gun logic of the court’s conservative majority: History binds those of us who want regulations but liberates the gun fetishists.

If you asserted that the Constitution only guarantees the right to bear a flintlock musket, they’d laugh and say that “arms” means not what was available at the time the Second Amendment was written but whatever guns are popular today. Yet they also insist that only those regulations nearly identical to what was in place 250 years ago may be permitted.

Nevertheless, Thomas’s opinion acknowledged that ancient gun laws included restrictions on carrying weapons in “sensitive places.” He said it would be acceptable to keep guns from locations such as schools, government buildings and courthouses.

So New York Gov. Kathy Hochul (D) plans to create an expansive list of sensitive places where guns could be banned, including “government buildings, parks, mass transit, health and medical facilities, places where children gather, day-care centers, schools, zoos, playgrounds, polling places and educational institutions.”

She also wants an enhanced licensing system, which would include comprehensive background checks and the completion of a safety course. The state will also consider new rules on safe gun storage and requiring a permit to purchase ammunition.

Meanwhile, in California, Democrats are planning a new slate of requirements, as the Associated Press reports:

They aim to restrict concealed carry to those 21 and older; require applicants to disclose all prior arrests, criminal convictions and restraining or protective orders; require in-person interviews with the applicant and at least three character references; and allow sheriffs and police chiefs to consider applicants’ public statements as they weigh if the individual is dangerous.

Gun advocates will no doubt howl at all this. They believe not just that they should have the right to own and carry weapons but also that they shouldn’t have to endure the most minor of inconveniences to do so.

But if you say, ‘The Supreme Court says I have the right to carry around this lethal instrument giving me the ability to murder anyone I encounter in an instant,” the rest of us are more than justified in responding: “Yes, that’s what the Supreme Court says. But we will take steps to protect ourselves from the danger you and other gun owners pose.”

This is what a compromise looks like: You’ll be able to get your guns, but just as you have to show you can operate a motor vehicle safely before getting a driver’s license, you’ll have to satisfy some requirements before getting a gun permit.

No doubt the gun industry and its partners will seek to have each and every new licensing requirement struck down, and the Supreme Court will likely oblige some of them. So liberal states should pass as many restrictions as possible that might potentially be allowable under Bruen and D.C. v. Heller. That’s the 2008 decision that drew a black line through the “well-regulated militia” part of the Second Amendment and declared for the first time that Americans have an individual right to own guns.

Both those decisions said some requirements and restrictions would still be allowed. If the rest of this court’s jurisprudence is any guide, that could just as easily be a feint as a promise; the court’s pro-gun majority may well slice and dice its way through new gun laws liberal states pass.

But some of those laws will survive, and in any case, the process could take years. Over time, there’s no telling how politics — or the court itself, if Democrats find the will and means to reform it — might change. Most important of all, a strict and comprehensive licensing system will save lives. So every blue state should get on it.