Tuesday’s massacre at Robb Elementary School in Uvalde, Texas, would appear to be a powerful argument for passing new legislation to regulate guns.
But the most likely source of immediate federal action on guns is not Congress. It’s the Supreme Court, which is set to issue a potentially landmark decision that could expand the reach of the Second Amendment, putting some existing state and local gun safety laws in serious legal jeopardy.
It’s true: America’s notoriously weak gun laws may soon become even weaker.
The case before the court is called New York State Rifles and Pistols Association vs. Bruen. Its subject is a State Law which requires people to get a license if they want to carry a gun in public. To obtain the license, a person must present a reasonable and tangible argument explaining why he needs a firearm to defend himself.
A basic premise of the law is that having many people carrying guns greatly increases the likelihood of impulsive or accidental shootings. But a few years ago, two New Yorkers challenged the law, saying it violated the Second Amendment guarantee of a right “to own and bear arms.” Their case made its way through the federal court system to the Supreme Court, which heard it in November.
A decision is expected in the coming weeks, and all outcomes are possible, including an advisory that leaves New York law in place. But given the conservative majority of six members of the Court and the content of the questions asked by the judges during pleadingsmost experts expect a decision overturning the law.
At this point, the big question would be the underlying rationale for the decision and its implications for other gun restrictions, including similar permit systems that exist in California, Massachusetts, and other states that together make up about a quarter of the U.S. population.
A decision striking down the New York law would also create a pretext to challenge other state laws. These challenges would have a high probability of success, given the federal judges who would hear their cases and the once-radical perspective that many of those judges brought to the bench.
Rewrite the Second Amendment
As late as the late 20th century, the prevailing opinion among judges and jurists held that the Second Amendment was in fact a guarantee for states as to the right to maintain militias. The idea that the amendment would recognize an individual right to gun ownership, let alone the right to carry a gun, struck much of the legal establishment as absurd. In 1990, former Chief Justice Warren Burger called the notion a “fraud on the American public.”
But by this point, aggressive gun rights advocates were well on their way to destroying that consensus, thanks to a patient and determined campaign that academics Reva Siegel and Michael Waldman have since documented in detail.
One of the main elements of this campaign was to support the research of conservative scholars who supported broader readings of the Second Amendment. Another was support for Republican presidential candidates who promised to appoint sympathetic judges — and Senate candidates, mostly but not entirely Republicans, who would vote to confirm them.
In 2008, that effort paid off when a Republican-appointed conservative majority on the Supreme Court struck down a handgun ban in Washington, D.C., and in the process cited a right to individual gun ownership. fire that the court had never previously recognized.
Judge Antonin Scalia, who wrote the ruling, said the safeguard was there in the plain text of the Second Amendment and was consistent with the nation’s history. Critics noted that Scalia seemed obviously less interested in the parts of the amendment dealing with militias – and called his reading of history highly biased. But Scalia had the votes and his point of view prevailed.
The only caveat in that decision was a license for gun regulation, as long as the limits were reasonable and based on tradition. And that is the central question in the New York case.
The law’s challengers say it fails those criteria, citing the discretion the system leaves to state officials, as well as what the challengers claim are the opinions of the nation’s founders. Defenders of the New York law strongly disagree, noting that restrictions on the right to carry firearms have a long history, dating back hundreds of years to ancient English laws that still remain a basis of American legal philosophy.
But what ultimately happens in the case may have less to do with the merits of the case and more to do with who decides it. Challengers need five judges to vote. And with six conservatives in the field ― one more than the five who first recognized a right to gun ownership ― their chances of success seem high.
Rewrite US gun laws
If a majority decides to strike down the New York law, the other’s challenges to similar state laws will likely fill the federal courts, which are now filled with conservative judges highly receptive to broad interpretations of the Second Amendment. Lawsuits against other gun regulations will likely start to pile up as well, most likely challenging well-known and widely accepted systems like the federal background system.
Given how aggressive some of the recent Republican judicial appointees have been in ignoring precedent and adopting once fringe conservative theories, it’s safe to assume that some of these lawsuits would also be successful – creating new cases for the Supreme Court to consider and new opportunities. to expand the scope of the Second Amendment.
By then, the United States will surely have seen many more shootings, in an epidemic of gun violence that, among peer countries, is uniquely American. It’s a function of the fact that it’s so easy to get a weapon here – and, maybe soon, it’s so easy to carry one too.
The Huffington Gt