Portside

The Supreme Court is poised to issue a ruling in a New York gun rights case that will likely expand the scope of protec­tions the Second Amend­ment affords indi­vidual gun owners who want to carry a gun outside of their resid­ences. The biggest ques­tion in New York State Rifle & Pistol Asso­ci­ation v. Bruen may not be whether a major­ity of justices strike down the state’s century-old hand­gun licens­ing require­ment but how far that major­ity goes in signal­ing that other licens­ing meas­ures created by govern­ment offi­cials are now consti­tu­tion­ally suspect.

Can offi­cials prohibit hand­guns in courtrooms and schools? What about college campuses or hospit­als? When the Court heard oral argu­ment in Novem­ber, the six-member conser­vat­ive major­ity seemed far more inter­ested in explor­ing the contours of an expan­ded Second Amend­ment than in whether it ought to be expan­ded. This approach to gun regu­la­tion is a sea change from the Court’s histor­ical approach to the amend­ment, but it should come as no surprise to anyone who has followed the arc of the Court’s juris­pru­dence in this area over the past 15 years.

The current Supreme Court is far more conser­vat­ive and far more friendly to gun rights than the one that first recog­nized a personal right to bear arms under the Second Amend­ment in District Columbia v. Heller in 2008. Or the Supreme Court that acknow­ledged two years later in McDon­ald v. Chicago that such protec­tions apply to state laws and regu­la­tions as well. Gone since then is Justice Ruth Bader Gins­burg, a foe of expan­ded gun rights. In her place is Justice Amy Coney Barrett, whose view of the Second Amend­ment is viewed by many as even more expans­ive than that of the late Justice Antonin Scalia, the author of Heller. 

For many years after the Heller and McDon­ald decisions, Justice Clar­ence Thomas, an extreme gun rights supporter, urged his colleagues on the Court over and over again to accept more Second Amend­ment chal­lenges to exist­ing gun laws. He wanted the Supreme Court to use the newly recog­nized “personal” right under the Second Amend­ment to sweep away regu­la­tions restrict­ing the posses­sion and use of fire­arms. And for many years, until the arrival of the three justices nomin­ated by Pres­id­ent Donald Trump, Thomas’s colleagues rejec­ted those attempts.

That was then. This is now. Now we all are wait­ing for the Supreme Court’s ruling in Bruen, an opin­ion that some court watch­ers say won’t come until some­time in late June. This case is the chal­lenge to New York’s 108-year-old concealed hand­gun law. The chal­lengers claim they should­n’t have to show a special need to get a license to carry a gun that way. A major­ity of justices seemed skep­tical of New York’s rationale for the law when they asked about it during oral argu­ment last fall. But Bruen is just the start of what some lawyers and advoc­ates say will be a relent­less effort by the Court to trans­form gun regu­la­tion around the United States.

The Bruen decision will come weeks after another mass shoot­ing, another spasm of gun viol­ence, this time in Buffalo, New York, where Gov. Kathy Hochul and state legis­lat­ors are prom­ising to expand the scope of gun regu­la­tions. Will the Buffalo massacre change anyone’s mind on the Court? Not likely. Nor will the massacre of 19 chil­dren and 2 teach­ers at Robb Element­ary School in Uvalde, Texas. They were reportedly gunned down by an 18 year old who had just purchased his weapons in a state that has dramat­ic­ally loosened gun laws in the past decade. It is harder for an 18 year old to get a driver’s license than a gun in Texas.

To get a sense of where we are now on the Second Amend­ment and where we are likely headed given the Court’s current makeup, I reached out to Darrell Miller, a professor at Duke Law School who is an expert on the Second Amend­ment and gun rights and regu­la­tions. 

COHEN: Three days after the Capitol riot and insur­rec­tion, you gave a fascin­at­ing inter­view to Olivia Li at The Trace in which you talked about an insur­rec­tion­ist theory of the Second Amend­ment. “There is always someone who thinks that tyranny is in the present” is the quote you once used to help describe the concept. It’s now been 15 months since Janu­ary 6, 2021. What have you seen between now and then, among the hundreds of federal cases to arise involving the alleged rioters and insur­rec­tion­ists, to support or under­mine your old theory? 

MILLER: If anything, the past 15 months have only rein­forced my convic­tion that the normal­iz­a­tion of threats of polit­ical viol­ence in Amer­ican soci­ety is under­min­ing the found­a­tion of Amer­ican demo­cracy. We’re learn­ing through these prosec­u­tions just how wide­spread and coordin­ated the attack on the Capitol actu­ally was. We’re learn­ing through the Janu­ary 6 Commit­tee how compli­cit a signi­fic­ant segment of the polit­ical, legal, and profes­sional class was in support­ing a multi-pronged attack on the peace­ful trans­fer of power. Yet instead of seeing bipar­tisan condem­na­tion of polit­ical viol­ence, we’re witness­ing ever more trans­par­ent appeals to it. I remain alarmed. 

COHEN: What’s your view of the Protec­tion of Lawful Commerce in Arms Act, the Bush-era federal law that offers a special shield to gun manu­fac­tur­ers to protect them from liab­il­ity for the damage caused by gun viol­ence? Would a legis­lat­ive repeal of it viol­ate the Second Amend­ment? And do you get a sense from recent litig­a­tion against gun manu­fac­tur­ers — I am think­ing of the Sandy Hook case, for example — that this avenue might repres­ent the best chance now to reduce gun viol­ence by hold­ing gunmakers account­able for some of it?

MILLER: I do not think a legis­lat­ive repeal of PLCAA would viol­ate the Second Amend­ment. I do think the Second Amend­ment presumes that there will be some kind of commer­cial market in weapons, but noth­ing about the Second Amend­ment says that market must be unreg­u­lated. Indeed, in District of Columbia v. Heller, the Court itself said “noth­ing in our opin­ion should be taken to cast doubt on … laws impos­ing condi­tions and qual­i­fic­a­tions on the commer­cial sale of arms.” Right now, under PLCAA, fire­arms are among a hand­ful of commer­cial products that are essen­tially immun­ized from tort rules that could force manu­fac­tur­ers and distrib­ut­ors to make them safer and less prone to misuse. 

It’s possible that, if PLCAA were repealed, the Court would hold — as it has in the First Amend­ment context with defam­a­tion of public figures — that the Second Amend­ment sets the lower bound­ary for tort rules involving weapons. It’s possible, but that would give Second Amend­ment rights a kind of pree­m­in­ence claimed by few other consti­tu­tional guar­an­tees. The Sandy Hook case provides a very small crack to penet­rate the PLCAA immunity shield, and perhaps that will be enough to make gun manu­fac­tur­ers change their sales prac­tices. However, I’m not certain that it will provide the full set of incent­ives — already present with other kinds of commer­cial products: from batter­ies, to cars, to prescrip­tion medic­a­tion — to make a poten­tially bene­fi­cial product less prone to misuse.

COHEN: Five years after he retired, former Supreme Court Chief Justice Warren Burger, a Nixon appointee, said the idea that there was a personal right to bear arms embed­ded in the Second Amend­ment was a fraud. The Second Amend­ment, he told an inter­viewer in 1991, “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the Amer­ican public by special interest groups that I have ever seen in my life­time.” That was 31 years ago. Since then, a conser­vat­ive Supreme Court has ruled there is such an indi­vidual right to bear arms, a ruling that has spawned roll­backs of gun regu­la­tions across the coun­try. To a lot of people, Burger’s comments are a sort of Rorschach test about the Second Amend­ment in general and gun regu­la­tion in partic­u­lar. Where do you stand on it?

MILLER: This is not a simple ques­tion. To call the personal right inter­pret­a­tion of the Second Amend­ment a “fraud” presumes a certain kind of origin­al­ist consti­tu­tional meth­od­o­logy. It presumes that the Second Amend­ment means what the Founders inten­ded or, altern­at­ively, what the Found­ing gener­a­tion under­stood the words to mean around 1791. Few, if any, of the Founders are talk­ing about fire­arms for personal self-defense against crim­in­als during the time the Second Amend­ment was rati­fied — the debate was focused on fear of a stand­ing army and how to organ­ize the mili­tia. Recent research by linguists, using big data sets of 18th-century docu­ments unavail­able when the Court decided District of Columbia v. Heller, has pretty convin­cingly shown that the term “bear arms” was over­whelm­ingly used in a collect­ive or milit­ary sense and almost never used in the modern sense of “carry weapons.”

So, by that metric, Burger is right. But assum­ing the Consti­tu­tion means what the Founders inten­ded or under­stood is a huge assump­tion. There’s a more flex­ible, evolving theory of the Consti­tu­tion — typic­ally endorsed by people on the left — that says the mean­ing of the Consti­tu­tion gradu­ally changes over time or is impacted by major public events or social move­ments. On that theory of consti­tu­tional inter­pret­a­tion, call­ing the personal right a “fraud” is a non-sequitur. This is the great irony of the Heller opin­ion — it’s a decision by an arch-origin­al­ist, celeb­rated by conser­vat­ives, that only makes sense if the Consti­tu­tion is a living docu­ment.

COHEN: We all are wait­ing for the Supreme Court’s ruling in New York State Rifle & Pistol Asso­ci­ation, Inc. v Bruen. Of course, I haven’t read every essay or analysis on the case or the oral argu­ment that took place on it last fall, but I have yet to come across a Second Amend­ment scholar or gun policy expert who says the Court’s conser­vat­ive major­ity will side with New York and against the interests of gun owners. What’s your sense of the scope of the decision we are most likely to see here? What’s your predic­tion? 

MILLER: Other than feel­ing very confid­ent that the exist­ing New York State pistol licens­ing law will be struck down, I have very little sense of the scope of the decision we’re likely to see in the next month or two. The justices at oral argu­ment seemed genu­inely concerned that a broad ruling on public carry would embroil them in all kinds of minu­tiae about where guns can be prohib­ited — campuses, subway cars, Times Square on New Year’s Eve, etc. I cannot believe that they have much appet­ite for trans­form­ing every federal district court judge in the coun­try into a gun zoning czar. That said, there’s a conser­vat­ive super­ma­jor­ity on the Court that is clearly ready to flex its muscles on issues that conser­vat­ives have long cared about — from abor­tion restric­tions, to free exer­cise, to gun rights — so I can’t rule out a broad and broadly disrupt­ive ruling that would upend not only New York’s regu­la­tions but would call into ques­tion the consti­tu­tion­al­ity of nearly every gun regu­la­tion, in every state, at every level of govern­ment.

COHEN: You have writ­ten a great deal on the Second Amend­ment and how poli­cy­makers can and should approach the tension between gun rights and gun regu­la­tions. One article that caught my eye, posted last year, advoc­ated for an “equi­lib­rium adjust­ment” approach to Second Amend­ment law, a sort of slid­ing scale of reas­on­able­ness that would presum­ably protect some exist­ing gun laws while strik­ing down others. Sounds optim­istic to me, given what we know of the Court’s ideo­lo­gical makeup. Are you look­ing for anything in Bruen that would help you eval­u­ate whether the Court is recept­ive to this “equi­lib­ria” approach? 

MILLER: The primary point I wanted to make in that article is that if the Court ends up lean­ing heav­ily or exclus­ively on text, history, and tradi­tion to decide Second Amend­ment cases, the process of reas­on­ing from analogy from those sources has to apply equally on both sides of the rights/regu­la­tion equa­tion. The Court has firmly rejec­ted argu­ments that only 18th-century weapons are protec­ted by the Second Amend­ment. But that argu­ment should apply to regu­la­tions too — more than just those regu­la­tions that exis­ted in the 18th century are consti­tu­tional. So, if the Court holds that new kinds of weapons — like 9-milli­meter pistols — are “similar” enough to histor­ical weapons to count as an “arm” under the Second Amend­ment, the Court should say new kinds of regu­la­tions — like prohib­it­ing guns on the subway — are “similar” enough to histor­ical regu­la­tions to be consti­tu­tional.

COHEN: Consti­tu­tional experts who follow the courts always seem to have an eye on three or four cases that are begin­ning to wend their way through state court systems or the federal system. What three or four Second Amend­ment cases are you watch­ing as they begin their jour­neys to the higher courts? Are we likely to see a chal­lenge to these new open carry laws that so many states have adop­ted over the past few years? Are there other cases you see out there that could give this Court the oppor­tun­ity to expand gun rights and limit gun regu­la­tion? What should we be watch­ing for?

MILLER: There’s a host of unsettled ques­tions that I’m keep­ing my eye on. The lower federal courts right now are wrest­ling with the issue of what counts as an “arm” for purposes of the Second Amend­ment: Does it include large capa­city magazines? Does it include AR-15s and other rifles modeled on milit­ary weapons? In Michigan, the state supreme court is set to decide whether the Univer­sity of Michigan and other state univer­sit­ies can keep fire­arms off their campuses or whether that viol­ates federal or state consti­tu­tional law. Then there’s the flood of litig­a­tion that will follow the Bruen case. I guar­an­tee that gun rights advoc­ates have already got plaintiffs engaged and complaints draf­ted and that there will be multiple lawsuits filed as soon as the Court hands down Bruen.

But what I’m really focused on is the sleeper issue in Bruen that will determ­ine just how radical a change we’re in for. Right now, the lower courts are using a two-step frame­work for decid­ing Second Amend­ment cases. The first step is a histor­ical approach; the second step allows the govern­ment to justify its regu­la­tion through social science data or other kinds of empir­ical tools. But one issue in Bruen is whether that second step is permiss­ible or whether all Second Amend­ment ques­tions may be answered only by refer­ence to what is permit­ted by “text, history, and tradi­tion.”

If the Court adopts a “text, history, and tradi­tion”-only approach to Second Amend­ment ques­tions, then suddenly everything we thought we knew about gun regu­la­tion — that you can keep those convicted of domestic viol­ence from possess­ing fire­arms; that you can keep loaded guns out of the cabins of commer­cial airliners — all that is up for grabs.

Disclos­ure: Miller was among a group of attor­neys who filed a friend-of-the-court brief on behalf of neither party in the Bruen case, urging the Supreme Court not to apply a text, history, and tradi­tion-only approach. He also filed a friend-of-the-court brief in the pending Michigan Supreme Court case.

This inter­view has been edited for length and clar­ity.

Andrew Cohen is a fellow at the Brennan Center for Justice. He is also senior editor at the Marshall Project, the nonprofit criminal justice news organization. For 22 years he was a legal analyst for CBS News and was the first-ever legal analyst for 60 Minutes. He has won two Edward R. Murrow Awards as one of the nation’s leading legal analysts and commentators and two Silver Gavel Awards from the American Bar Association for his coverage of prisons and the death penalty in America. @JustADCohen

This discus­sion is one of several in a Bren­nan Center series on the Bill of Rights. The inter­view with Orin Kerr about the Fourth Amend­ment is here, the inter­view with David Carroll about the Sixth Amend­ment is here, and the inter­view with Carol Steiker on the Eighth Amend­ment is here.