early and often

The Future of Gun Control Is in Danger

Any law that wasn’t around in the 1700s is probably unconstitutional, according to Clarence Thomas.

Photo: Adam Powell
Photo: Adam Powell

As expected, the Supreme Court voted 6-3 to strike down New York’s handgun regulations. Those regulations required New Yorkers to get a permit for carrying a handgun in public and show why they had a special self-defense need for doing so, subject to the review of state licensing officials. It was widely assumed that the Court would find those rules unconstitutional under the Second Amendment, and so it did.

But what was not expected was how Justice Clarence Thomas, writing for the six conservatives, went much further, totally transforming how the Court reviews gun laws in general. In the aftermath of Buffalo, Uvalde, and other mass shootings, the Court just made it much harder to enact future gun-control laws of all kinds. Because as of today, in order to be constitutional, any such law must have a specific historical precedent from the 18th or early-19th century. (New York’s law dates back to the early-20th century.) That is a terrifying new limitation, because it’s not at all clear if measures such as an assault-weapons ban or age limits have such precedents. And his own opinion shows how subjective and selective history can be read, depending on one’s ideological point of view.

For most of our history, hardly any judges or legal authorities thought that the Second Amendment contained any individual right at all. The reason is obvious: the language of the amendment itself, which reads “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.” For most of our history, legal scholars and judges agreed that the second phrase depended on the first. The right to bear arms existed so that people could be part of a militia. It was not an individual right; it was dependent on one’s participation in a militia. That changed in the 1970s with the transformation of the National Rifle Association into an extremist organization that propagated the cultural and legal view that the Second Amendment guaranteed an individual right to bear arms. Warren Burger, the conservative chief justice appointed by Richard Nixon, would go on to describe this as “a fraud on the Amer­ican public.”

In 2008, that “fraud” became the law of the land, when the Court adopted it in the case of D.C. v. Heller. Since then, courts have reviewed gun laws in a two-step approach. First, they would determine if a particular law falls within the scope of this new reading of the Second Amendment. If the law did, then laws would be upheld if they are “substantially related to the achievement of an important governmental interest” — a standard known as “intermediate scrutiny.” Justice Thomas explicitly rejected this approach. “Despite the popularity of this two-step approach,” he wrote, “it is one step too many.” Instead, “to justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

Now, Justice Thomas did not have to do any of this. He could have struck down the law narrowly, and part of his opinion seemed ready to do so. New York’s law, like those of six other states, is a “may carry” rule: If a person meets certain criteria, they may be entitled to a permit. That’s very different from the “shall carry” rules of 43 other states, which provide that if a person meets the criteria, they shall get the permit. It would have been enough to state that a constitutional right cannot be subject to this much discretion. But he did not do that. He vastly expanded the scope of the Second Amendment by making it almost impossible for many gun-control laws to survive judicial review. And that will affect laws being discussed now.

For example, many have advocated raising the minimum age to buy a gun to 21, noting that many recent mass shootings were carried out by young men. However, under Justice Thomas, such a law would have to be “consistent with this Nation’s historical tradition of firearm regulation” to be constitutional. Were there age limits for firearm possession in the 18th-century colonies? If so, what were they? That’s far from clear.

To take a second example, consider a ban on assault weapons. In Heller, the Court said it was fairly supported by the historical tradition” to prohibit “the carrying of ‘dangerous and unusual weapons.’” But who’s to say what those are? To me, an AR-15 is extremely dangerous and unusual and obviously not what the Founders had in mind when they permitted the carrying of muskets. But to Representative Lauren Boebert, who regularly poses with one, they may not be so unusual and should be covered by the Second Amendment. Ultimately, that will be up to a court to decide with the veneer of historical analysis covering what is obviously a subjective interpretation.

This is especially true because Justice Thomas’s own reading of history is so subjective and selective. New York, for example, has banned the carrying of firearms without a permit since 1911. But that hundred years of history is not what he requires, because the actual question is about “how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century.” Elsewhere, he writes, quoting Heller, that because “post–Civil War discussions of the right to keep and bear arms ‘took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.’”

And yet, on the other side, Justice Thomas waves away any English common law in existence prior to the 18th century. So the only laws that matter to him are from around 1700 to 1860. And even then, he dismisses two colonial statutes criminalizing “all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively,” saying that “offensively” only meant using “‘dangerous or unusual weapons.” Meanwhile, he deemed two other laws, from colonial New Jersey and Virginia, to be too limited to base any decision upon. So the only laws that are part of “our Nation’s historical tradition” are those that unambiguously govern specific conduct between 1700 and 1860 and that a skilled advocate cannot interpret away.

Concurring in the judgment, Justice Brett Kavanaugh, joined by Chief Justice John Roberts, was at pains to note that this case, New York State Rifle & Pistol Association v. Bruen is only deciding the limited question in front of it: the “may carry” license regime in New York and five other states. The laws of 43 other states remain constitutional, and Justice Kavanaugh quotes Heller as allowing “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

That is, of course, true as a matter of law, and it’s an important signal that Justices Kavanaugh and Roberts (as well as the three liberals) will not go along with a wholesale rollback of the nation’s gun laws. But Justice Kavanaugh’s opinion is his own, not the Court’s, and crucially, it does not dissent from Justice Thomas’s new standard of review. And that’s what’s most important: not the striking down of this particular law, which was clearly going to happen, but Justice Thomas’s announcement of an entirely new standard for reviewing gun laws, which will render a host of present and future laws unconstitutional.

We don’t know which gun-control laws will be struck down just yet, but we will soon enough.

The Supreme Court Has Endangered the Future of Gun Control