The Most Dangerous Gun Ruling In History, At The Worst Possible Time

century-old law that was struck down in New York State Rifle & Pistol Assoc. v. Bruen, which required those seek­ing “concealed
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The Supreme Court’s ruling on Thursday strik­ing down a New York gun law isn’t just the most signi­fic­ant ruling on the Second Amend­ment in a dozen years — it may be the most signi­fic­ant, and most danger­ous, such ruling in the nation’s history. At a time when the United States contin­ues to reel from mass shoot­ings and every­day gun viol­ence, this decision will make it far harder to ensure public safety.

Part of that has to do with the century-old law that was struck down in New York State Rifle & Pistol Assoc. v. Bruen, which required those seek­ing “concealed carry” hand­gun licenses to show “proper cause” for such approval. But the even more danger­ous part of the decision comes from the court’s reas­on­ing, which dramat­ic­ally changes how judges decide what is consti­tu­tional when it comes to gun safety.

Back in 2008, in District of Columbia v. Heller, the court for the first time recog­nized an indi­vidu­al’s right to own a gun for self-defense. The cent­ral right, Justice Antonin Scalia wrote then, was to protect “hearth and home.” The court never said how that newly discovered right applied to carry­ing a weapon outside the home — or what test should be applied.

In strik­ing down the New York law, Justice Clar­ence Thomas’s six-justice major­ity purpor­ted to rely on history, albeit a very select­ive read­ing of history. The opin­ion rather fren­et­ic­ally plucks examples out of the often contra­dict­ory morass of history to make its point, all while claim­ing to be simply rely­ing on the original public mean­ing of the amend­ment.

At the same time, the court offers surpris­ingly little guid­ance about what kinds of limits on carry­ing weapons New York can enact. It concedes that restric­tions may be allowed in “sens­it­ive places.” Based on the ques­tions asked during the oral argu­ment, it seemed the justices would specify what those places might be, with guns still prohib­ited in subways, schools, churches, perhaps Times Square, but there was no such guid­ance. The state legis­lature will try to pass such rules, courts will rule — and the issue will no doubt be back before the Supreme Court soon enough.

In 1791, when the Second Amend­ment was rati­fied, New York City had 33,000 resid­ents. Today it has more than 8 million. To me, as a resid­ent of New York City, the notion that thou­sands or hundreds of thou­sands of people might be walk­ing around armed, think­ing them­selves a “good guy with a gun,” is, frankly, terri­fy­ing. Yet Thomas made clear that Manhat­tan, despite its dens­ity, is not a sens­it­ive place. Exempt­ing "cities from the Second Amend­ment … would evis­cer­ate the general right to publicly carry arms for self-defense,” he wrote.

But the implic­a­tions of the decision are far broader than the New York law. They stretch across the whole coun­try. The bigger impact will prob­ably be felt in hundreds of other gun laws in all 50 states.

Since Heller and a compan­ion case in 2010, the Supreme Court turned away chances to rule on this ques­tion, while hundreds of lower courts developed an approach. Yes, they ruled, there is an indi­vidual right — but soci­ety has rights, too. Borrow­ing from First Amend­ment law, they first asked whether a Second Amend­ment right was involved, and then applied “inter­me­di­ate scru­tiny”: Gun rights can be limited by concerns over public safety. This consensus view was propounded by Repub­lican-appoin­ted judges and Demo­cratic-appoin­ted judges, and adop­ted by every federal appeals court that considered the issue.

The ruling Thursday says that all these judges got it wrong. Instead, the major­ity said, courts must assess gun rules espe­cially focus­ing solely on “history and tradi­tion.” Don’t look at public safety; search for analo­gies to past laws from a very differ­ent time.

That means the National Rifle Asso­ci­ation and other gun-rights lawyers get a do-over. They will go to court to chal­lenge dozens of laws that have been upheld in recent years, to say, no, you must apply “history and tradi­tion.” The NRA is a husk of its former self, but its views live on in the life­time-appoin­ted justices who have now ruled.

Not only courts but also state and local govern­ments will have to parse this fuzzy stand­ard, at a moment when gun viol­ence is rising, and fears of gun crime have shaken famil­ies every­where. It will make it harder for govern­ment at all levels to restrict gun viol­ence, and surely harder for offi­cials to know what they can lawfully do.

The United States has nearly 400 million guns — more than we have people. Ours is the only coun­try in the world with so many guns. And gun viol­ence is higher here, too.

The implic­a­tions of this decision will play out in courtrooms and legis­latures across the coun­try in months and years to come. Where they will really play out, though, is on the streets, where there will be more guns, more armed confront­a­tions and more crime.

By Michael Waldman\Brennan Center

This article was origin­ally published by the Wash­ing­ton Post.

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