Historic cherry picking at heart of Supreme Court gun rights expansion

In a 6-3 decision, the Supreme Court ruled Thursday that a New York law restricting the ability to carry a gun in public violates the Second Amendment. The majority opinion, which the three liberal justices disagreed with, raises questions about how cities and states can regulate guns in the future. It also casts doubt on the constitutional viability of the bipartisan gun bill that passed by procedural vote in the Senate hours after the decision was announced. (This bill, which sprung up largely in response to the recent mass shootings in Buffalo and Uvalde, would, if enacted, become the most significant federal gun safety law in over two decades.) To talk about the decision and what it might be for future gun control efforts, I spoke by phone with UCLA Law School professor Adam Winkler and author of “Gunfight: The Battle Over the Right to Bear Arms in America.” During our conversation, which has been edited for length and clarity, we discussed how Justice Clarence Thomas’ majority opinion selects history, how states might try to comply with the decision while regulating firearms and the significance of a concurring opinion from Justices John Roberts and Brett Kavanaugh.

What is your biggest lesson from this decision?

The decision challenges a wide variety of gun laws, including several key provisions of the Senate gun bill.

What was the law in New York and what kinds of gun laws do you think are most at risk?

New York’s gun law limited concealed carry permits to those who could show a particular need for a firearm in public, which the Court found was too onerous a restriction given the second amendment. And, as far as what this will call into question, I believe the Court’s decision will result in the reversal of laws in a number of other states, including California, Massachusetts, Connecticut, and Hawaii, which have also what is called allowing. Any state that has a permit may have to rewrite its laws and allow people to carry guns on the street.

Can you describe the differences between an authorized issue permit and another type, which is always authorized, called an issue permit?

May issue permits limiting concealed carry permits to persons who can demonstrate a particular, individualized need to have a firearm. A general fear of being the victim of a crime is not enough. But if your life has been threatened, you may be harassed, or you are carrying a large amount of cash or jewelry as part of your job, you may be eligible for a concealed carry permit. Thus, a May-Issue regime gives the state a great deal of discretion over who gets the permit.

A licensing rule is a rule where, as the name suggests, the state issues a license to any law-abiding citizen who meets basic training or education requirements, and you don’t. you do not have to demonstrate an individualized need.

As for the decision itself, what was notable about the way the Court presented the history of the Second Amendment and guns?

Most notable is that the Court says it will look to history and tradition, but then ignore history and tradition. The Court says that only gun laws that have historical precedent are constitutionally authorized, then the Court dismisses all historical precedents for heavy restrictions on concealed carry laws as outliers. The Court says it will look to history, but rejects early English common law as too old. The Court says it will look to history, but dismisses any laws that were passed after the mid-1800s as too young. The Court says it looks to history, but also says that the license to issue is constitutional, even though the license to issue is a 20th century invention. So, the Court says she does an analysis of history and lore, but conveniently ignores any history she doesn’t like.

In terms of the selection and choice of historical precedents, is this out of the norm or a common feature of Court decisions?

It is singular. The Court says that the analysis of history and tradition is how constitutional rights should be analyzed. But it is enough to reconsider the decision of Tuesday on the financing of the religious schools. The Court did not do any analysis of history and tradition to show that there is a First Amendment requirement that states fund religious schools. [In the gun case,] the Court rejects the kind of balancing of interests that is common in constitutional law more generally.

How significant is John Roberts and Brett Kavanaugh’s agreement, which seems to suggest that there are at least five votes for certain types of regulations, even if it’s not the official majority? Does this send a signal to lower courts about what regulations might be allowed in the future?

I do not think so. I think the Kavanaugh-Roberts deal suggests there are at least two justices in the Conservative majority who could vote to enforce future gun laws, but the deal doesn’t really back down from the majority opinion. The agreement makes two points. The first is that you can have a license to issue. But the majority opinion says the same thing. And the accord says that long-standing gun laws are constitutionally permissible, but that’s also what the majority says. I don’t think it adds much substance. This is perhaps a sign that there are judges who are a little uncomfortable with the scope of the Court’s decision. But, crucially, they don’t backtrack on the broader parts of the decision, including the idea that only laws with historical precedents — only gun laws that conform to historical models of gun regulation — are constitutionally permitted.

If it goes no further than the majority opinion, what is the purpose of assent? What is its strength?

I’ll be honest with you—I don’t think it has much strength or impact.

What is the bill that just passed the Senate and how could it be threatened now?

The move calls into question several key provisions of the Senate gun bill. For example, the Senate bill provides funding for states to roll out red flag laws. Red flag laws are not steeped in history and tradition. In the 1700s and 1800s, there were no laws similar to red flag laws that allowed for the temporary confiscation of guns when someone is in crisis. Senate gun bill closes loophole on boyfriend of domestic abusers. In the 1700s and 1800s, there were no laws preventing domestic abusers from owning firearms.

These provisions in fact have no precedent or historical basis, and therefore you say that the Court could invalidate them. But it seems you were saying earlier that the Court just picks and chooses what it wants from history anyway, so are we giving them too much credit by analyzing these provisions historically?

I think that’s fair. The Court seems to choose the story it likes. But, if we take the law seriously, we must pass the test that the Court sets out as a serious test. And lower courts will certainly look to the Court’s test and use that test and apply it to many gun laws. Lower courts aren’t going to say, “Well, the Supreme Court picks and chooses what it wants, so we’re just going to pick what we want.” The lower courts are going to say they have to look to the historical tradition, and if there is no historical tradition, they have to invalidate the law.

How confident are you that states, primarily blue states, can still find ways to regulate guns? You can tax guns or ammunition…

Can you? Were there gun and ammunition taxes in the 1700s and 1800s?

I meant we can at least try it.

Look, this decision is going to have its biggest impact on blue states, like California and New York, which have relatively restrictive gun regulations. These states will always try to regulate guns. The political movement in these states is still very strong. I think this decision will not only lead to a lot of litigation, but will lead to a lot of litigation on the issue of concealed carry in particular. This is not the last word but the beginning of a long battle on this subject. States like New York are going to pass laws that broadly define “sensitive locations,” to make it very difficult to carry a gun in New York. These laws will be the subject of a constitutional challenge. States could impose charges on licensing requirements.

In California, if you want to get a cosmetology license that gives you the ability to put chemicals in someone’s hair, you have to go through a thousand hours of training. You might imagine California saying that if you want to carry a gun, you have to go through extensive training and take some type of course before you can carry a gun. So I think we’re going to see states continue to try to regulate guns, but this notice will make it easier for Second Amendment supporters to go to court and strike down those laws.

Is there a specific case you think of next?

There are cases that are already going all the way to the Supreme Court on restrictions on large capacity magazines and military style rifles. I think these might be the next ones the Supreme Court will take. I also believe that once New York passes a new set of concealed carry restrictions, these laws will be immediately challenged. It will take them a few more years to get to the Supreme Court, but I think we’ll likely see the restrictions on high capacity magazines and assault weapons come before the Court before too long. ♦

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