March 31, 2023

America’s Gun Problem Is a Legal Problem

Russ Feingold President

This past Monday, our country was devastated by yet another mass shooting, again at a school. Six more people, including three children, were violently and needlessly killed by assault weapons.

Gun violence has become the leading cause of death for young people in America – and only in America. This gun violence epidemic is uniquely American. It is unique to our laws as interpreted by our courts. It is unique to our 2nd Amendment and how that has been and continues to be used by our packed Supreme Court to prevent states from enforcing common sense gun safety regulations.

For the first two centuries after its enactment, there was broad, almost universal consensus that the 2nd Amendment provides only a collective right to bear arms in service of the state. Courts took into consideration the 2nd Amendment’s full 26 words: “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.” In one of the few cases in which the Supreme Court considered the 2nd Amendment prior to 2008, the Court noted that its “obvious purpose” was to “assure the continuation and render possible the effectiveness of” state militias.

Beginning in the mid-twentieth century, however, with the financial backing of gun manufacturers largely funneled through the National Rifle Association, a small group of conservative legal scholars and public commentators began arguing a fringe theory of an individual right to carry firearms. Through repetition and persistence, this group became the dominant voice in 2nd Amendment scholarship. In 2008, their persistence paid off when five justices on the U.S. Supreme Court bucked long-established precedent and history to rule in DC v. Heller that the 2nd Amendment provides an individual right to possess handguns in one’s home for the purpose of self-defense. As was feared in the wake of the decision, gun violence rose in the decade following Heller.

After Heller became the law of the land, lower courts still upheld many gun safety regulations enacted by states. For more than a decade, the Supreme Court allowed this case law to develop as lower courts established a two-part test that included as its second prong a means-end analysis. In most federal circuits, under this prong, challenges to gun regulations would fail if the regulation was substantially related to the government’s important interest in preventing gun violence and maintaining public safety. Heller was interpreted narrowly by most courts and as a result, it did not prove to be a death knell to gun safety regulations.

But, in 2022, the U.S. Supreme Court, now with a 6-3 conservative supermajority, struck down a century-old New York state law regarding gun licensure and ruled that the 2nd Amendment provides an individual right to carry firearms in public.

Bruen v. New York Pistol & Rifle Association was a devastating decision, not only because it struck down a long-standing and common-sense gun safety law, but because the Court eliminated the means-end analysis that allowed for consideration of public safety, with Justice Thomas’ pithy dismissal that “[d]espite the popularity of this two-step approach, it is one step too many.” In its place, the Court declared that the only proper analysis in determining the constitutionality of a gun regulation is a “text, history and tradition” test.

To be clear, the “text” the majority referenced includes an explicit reference to a “well-regulated militia,” which the conservatives justices have studiously ignored since Heller. And the "history and tradition” that the conservative supermajority relied on to overturn New York’s century-old law was cherry-picked at best and flat-out wrong at worst, proving all too painfully the adage that history is written by the victors. As a result of Bruen, litigation about gun safety regulations in this modern era of AR-15s and assault weapons is consumed by analysis and debates about 18th century gun laws and customs.

The Supreme Court’s rewriting of the 2nd Amendment may be poised for yet another lurch to the right. Recently, the Biden administration appealed a decision by the arch-conservative Fifth Circuit, which overturned a nearly 30-year-old federal law that prohibits people who are subject to domestic violence restraining orders from possessing guns. The Fifth Circuit acknowledged the public safety “goals meant to protect vulnerable people in our society,” but dismissed those goals as irrelevant under Bruen’s “text, history and tradition” analysis. The court claimed to be applying the holding from Bruen in its decision, using its own preferred version of history to overturn the federal law.

This case could be an opportunity for the Supreme Court to correct the Fifth Circuit and affirm  that Bruen does not, in fact, invalidate any number of long-standing and vital gun violence prevention measures. Or the Court could endorse the Fifth Circuit’s interpretation and risk adding fuel to the fire that is gun violence in America.

Following the shooting in Nashville, President Biden again called for a federal ban on assault weapons. Looming large, however, is the reality that even if gun safety legislation could get through this divided Congress, it would almost certainly be immediately litigated and destined for the U.S. Supreme Court. Our country’s ability to respond to the gun violence epidemic and to enforce common sense gun safety regulations is subject to the whims of six justices with life-tenure.

This is another area where we are suffering the consequences of the Right’s packing of the Court. Bruen almost certainly would have come down differently if the Right had not stolen Justice Scalia’s seat in 2016 and had not jammed Amy Coney Barrett’s confirmation through while votes were being cast in the 2020 presidential election.

Gun violence is an American problem. To resolve it will take more than new laws and regulations. It will require solving the Supreme Court’s legitimacy crisis by redressing the Right’s packing of it. ACS affirms its commitment to an interpretation of the 2nd Amendment that allows for common sense measures to address America’s unique gun violence epidemic and to reforming the U.S. Supreme Court.

Constitutional Interpretation, Gun Violence Prevention and Second Amendment, Supreme Court