Two and a half months into 2023, there have been more than 110 mass shootings in the United States and more than 8,700 overall gun deaths, according to the Gun Violence Archive. Rather than that creating a sense of emergency in our nation’s legislatures and courts, we’re seeing quite the opposite: the most extraordinary court-driven rollback of laws meant to reduce gun violence we’ve seen.
Last year, the Supreme Court handed down its ruling in New York State Rifle & Pistol Association v. Bruen, in which Justice Clarence Thomas declared that for any contemporary gun regulation to be constitutional, the government would have to identify a “historical analogue” to it from the nation’s founding. The result has been a transformation in U.S. gun laws that is producing far more chaos than expected, and leading to outcomes far more divorced from the public will than anyone predicted.
Let’s look at just a few of the many gun cases that have been decided in recent months following the Bruen decision:
- In West Virginia, a judge struck down a law prohibiting the possession of guns whose serial numbers have been removed.
- In Texas, a judge struck down a law barring those under 21 from carrying handguns.
- Another judge in Texas struck down a law barring those under felony indictments from buying guns.
- A judge in New Jersey struck down a law preventing people from taking guns to libraries and bars.
- An appeals court ruled that the federal law barring those under domestic violence restraining orders from possessing guns is unconstitutional.
“There’s a revolution happening in the courts right now,” Adam Winkler, a UCLA law professor and author of “Gunfight: The Battle Over the Right to Bear Arms in America,” told me. “The lower courts are striking down gun laws left and right.”
This isn’t to say the gun rights forces are winning every last case. Notably, a recent appeals court decision upheld another state law, this time in Florida, barring people under 21 from buying a gun.
But the gun rights movement is winning a lot more these days, and as Winkler says, “The gun laws that are being struck down are really surprising.”
While courts look to history on many questions, law professors I spoke to agreed that in no other area does the Supreme Court say the evaluation of a regulation’s constitutionality almost begins and ends with asking whether it’s sufficiently similar to what was in place in 1791.
Bruen doesn’t offer a formula for how to apply history, leaving judges to do almost whatever they please. Which for conservatives may be precisely the point. If all you need to do is find a quote from a member of the Virginia House of Burgesses or a 1750 code in a tiny village in New York to support your position, you can rule just about any way you like.
But as Joseph Blocher of Duke Law School told me, “You can stare at the historical record for as long as you want,” and never find a precise answer to whether, say, the government can stop you from bringing a gun on an airplane. Blocher added: “That can’t mean the government is precluded from passing those laws.”
In the broadest terms, says Blocher, “the pre-Bruen settlements actually did reflect where most Americans are on guns.” Clear majorities support universal background checks, “red flag” laws that allow guns to be taken from people who pose a danger to others, and licensing requirements to own a handgun.
But any or all such measures could now potentially be declared unconstitutional. The Supreme Court has effectively rewritten the Second Amendment in ways that the vast majority of Americans, even gun owners, disagree with.
But if we’re going to rewrite the Second Amendment, we should do it through the normal constitutional process, and establish one that works for the contemporary world.
After all, even the Bruen justices will find that their test takes them to places they don’t want to go, Winkler predicts. For instance, he argues, the fact that “we didn’t ban felons from possessing firearms in the 1700s and 1800s” won’t lead these conservatives to strike down current laws banning this. Instead, Winkler says, the court will likely “uphold those laws” while struggling to “maintain some charade of historical analysis.”
The National Constitution Center made an attempt to rewrite the Constitution some time ago. Their conservative, liberal and libertarian experts came up with dramatically different answers on what a new Second Amendment would look like. Yet only the libertarians wanted virtually unlimited gun rights of the kind the courts are now creating; even the conservatives’ version made room for restrictions.
A new Second Amendment would have to include two ideas: that there is an individual right to own guns for self-defense as conservatives believe, and that the right is subject to reasonable restrictions to protect public safety, as liberals emphasize. In practice, there would be some limits on who can have guns, where you can bring them and what kinds of guns you can own.
As much as we might disagree about how it would work in practice — which, after all, is what we do on every constitutional right — if we could agree on both those ideas, no matter how reluctantly, we could begin to imagine an eventual consensus on the foundation for a saner gun regime. To a degree, this was the situation introduced by the court’s decision in District of Columbia v. Heller that established an individual right to bear arms under the Constitution while leaving room for substantial regulation. Bruen wiped away that framework entirely.
At the moment, we live under a radical new version of the Second Amendment, one driven by a vision of almost unlimited gun proliferation. The results will be profound and tragic. We shouldn’t stop imagining something better.