The Supreme Court is Poised to Put Politics Ahead of Gun-Violence Prevention
Not long ago, common-sense gun reform seemed ascendant.
Support for better gun laws was a winning platform for the 2018 midterms, signaling an encouraging “shift on gun control,” and the 2020 election of Joe Biden was hailed by gun-violence prevention (GVP) group Everytown For Gun Safety as a “victory for the gun safety movement and a colossal loss for the NRA.” At long last, it felt like the tide was starting to turn.
But over the past year, even the most basic gun-control agenda has grown impossibly beyond reach. Though Democrats control all three branches of government, Biden’s gun reform efforts have been limited to a series of largely ceremonial executive orders. In a stinging rebuke, the president was forced to withdraw his nomination of David Chipman to lead the Bureau of Alcohol, Tobacco, Firearms, and Explosives after Chipman’s advocacy for gun control led to bipartisan resistance in the Senate. Meanwhile, growing numbers of states have pursued pro-gun legislation that once seemed fringe and radical—for example, a Texas law allowing people to carry handguns without permits, and efforts by Missouri politicians to declare federal gun laws “invalid.”
Things may soon get exponentially worse. A case that goes before the Supreme Court on November 3, New York State Rifle & Pistol Association Inc. v. Bruen (previously New York State Rifle & Pistol Association Inc. v Corlett) challenges a New York law that requires individuals to get a license to carry a concealed firearm outside the home. At stake is whether blue states and cities like New York, Los Angeles, and Boston have the right to enact laws that regulate guns in public spaces, or whether Second Amendment rights are as sacrosanct as First Amendment ones, above being nuanced by local regulations.
I’ve spent much of the past six months interviewing people across the United States in the leadup to the case—part of research for a book I’m writing about the cultural and racial effects of U.S. gun laws. Although I uncovered a wide range of opinions, these interviews have given me a greater appreciation for the ways that high-level political games become grounded in the ostensibly “organic” political instincts of everyday Americans.
Among conservative white gun owners in the South and Midwest, I found there is often reflexive support for the idea that northern and urban gun-control laws should be overturned. This was true even for many interview subjects who had never been to the cities in question—and particularly so when I explained that the case centers around gun laws in New York. “New York—well that says it all right there,” a Tennessee Uber driver in his fifties told me. “Hell yes I would want to carry my guns in New York [should I ever go there],” said a Michigan real estate agent in her forties. For these and other conservative interviewees, gun laws in cities like New York represented symbolic northern affront to their notion of uninfringed liberties (“It’s my constitutional right to carry anywhere I want”)—and in places where they imagine they would need to defend themselves against threats from racial others (“I might get carjacked!”).
But I also found a surprising current of pro-gun sentiment among a not insignificant minority of people who identified as liberal and who lived in the very cities in question—especially among people under forty. “Criminals have guns, so why shouldn’t we?” a thirty-seven-year-old white woman art dealer in Brooklyn told me. “Why should police have all the guns?” asked a twenty-six-year-old Black male programmer from Manhattan. A thirty-three-year-old white woman realtor from Boston explained that “hopefully this will make it easier for my friends and me to take shooting classes.”
These types of replies reflect an almost perfect storm of factors that have hardened, enhanced, or shifted attitudes toward guns in 2020 and 2021. The COVID-19 pandemic ushered in near-apocalyptic levels of anxiety and mistrust. In the early months of the pandemic, guns and bullets flew of the shelves as quickly as Purell and toilet paper—spurred by then President Donald Trump’s alarmist rhetoric that urged supporters to “save your great 2nd Amendment. It is under siege!”
Gun sales then rose by over 300 percent in the aftermath of the May 2020 killing of George Floyd and the protests that followed—both among protesters concerned about police violence and among white people with deep fears of racial protest. Not missing a beat, the NRA ramped up efforts to sell more guns to communities of color. When they stood on their St. Louis lawn waving guns at passing protesters, Mark and Patricia McCloskey became the clown-car villains of the left—but heroes of the castle-doctrine right. All the while, gun manufacturers retained unprecedented immunity from lawsuits, and (thanks to the Trump administration) expressly pro-gun justices provided over ever-more courthouses across the country—including the Supreme Court.
Evidence suggests that even people from groups that have historically been the strongest supporters of gun control began packing heat as a result of these cultural shifts. Ranks of liberal and Democrat gun owners grew exponentially in 2020 and 2021. Washington Post columnist Karen Attiah describes the “allure” of guns and gun groups for Black women “feeling a need to protect ourselves in an anti-Black and misogynistic society.” Armed Black self-defense—the very thought of which was once a rationale for white anxiety, Black oppression, and stricter gun control—has witnessed a revival as a viable movement of people who are “Black and up in arms.”
The confluence of these factors has led even many supporters of gun regulation to question its utility or, worse, to despair that gun control is a “lost cause.” “What are we even doing? America feels like it’s moved on from this issue,” a GVP organizer and activist in Nashville told me, even as shootings and deaths spiked in the city.
There could not be a more inopportune time for such resignation. Supreme Court cases regarding gun rights carry lasting implications for the ways Americans live and die. The last case with such major repercussions, District of Columbia v. Heller (2008), held that the Second Amendment guarantees an individual right to possess firearms independent of service in a state militia (historian Jennifer Tucker argues that the ruling is based on a “false interpretation” of historical precedent, and Justice John Paul Stevens has called Heller “the Supreme Court’s worst decision of my tenure”).
Sanctioning the notion that everyday people had some of the same firearm rights as do soldiers opened the floodgates for our current civilian arms race. U.S. civilians now own 393 million firearms, or about 46 percent of the world’s civilian-owned guns. While such expansion represented a boon for gun sellers and enthusiasts, it came at a dramatic cost in terms of lives lost, particularly in states that support unfettered gun rights. An analysis by the Violence Policy Center of 2016 data from the federal Centers for Disease Control and Prevention’s National Center for Injury Prevention found that the U.S. gun rate jumped 17 percent in the eight years after Heller, and that states with higher rates of gun ownership and weak gun violence prevention laws had the highest overall gun suicides, homicides, and unintentional shootings in the nation. By contrast, states with the lowest overall gun-death rates had lower rates of gun ownership and some of the strongest gun violence prevention laws in the nation.
In spite of the fact that Heller dramatically expanded the right of Americans to own guns, it did still recognize that some forms of “limitation to the right to bear arms are fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” as Justice Antonin Scalia wrote in the majority decision. Scalia opined that, while Americans had rights to keep firearms in their homes, communities could still regulate the gun rights of individuals deemed dangerous, and under certain circumstances restrict the general public from carrying of the kinds of dangerous modern-day weapons that framers of the Constitution could never have imagined (AR-15 semiautomatic rifles, for example, as Andrew Rosenthal argued in the New Yorker).
Heller in other words kept open a potential space between individual gun rights and communal safety, and into that space emerged the modern gun-control movement. Policies and approaches that movement has championed—such as assault-weapon bans, background checks on gun purchases, and permit and storage laws—aim to guard public safety while at the same time respecting constitutionally mandated individual gun ownership.
That space is what’s at stake in this season’s upcoming case, and the effects could be far reaching. New York Rifle & Pistol Association Inc. v. Bruen involves New York State’s handgun licensing law, in place since 1913, that requires someone who wishes to carry a handgun in public to demonstrate “proper cause” in order to obtain a license. The case is brought by the NRA’s New York affiliate on behalf of two New York men who were denied licenses to carry their handguns in public. They are asking the Court to rule that “law-abiding citizens” have a Second Amendment right to carry a gun in public regardless of state or city ordinances.
At present, in order to obtain an unrestricted license to carry a handgun in New York, someone must demonstrate a special need for self-protection based, for instance, on the nature of their job or personal history. Under New York current law, an applicant for a concealed carry license must show a non-speculative need to carry a handgun in public, for self-defense or other purposes, before being issued a license to do so. A business owner who has been robbed or a person with a known stalker would likely qualify, while someone who wants to carry against an imagined threat would not. As Andrew Chung of Reuters describes it:
under New York’s law on carrying concealed handguns, a resident may obtain licenses that are restricted to hunting and target practice, or if they hold certain jobs such as a bank messenger or correctional officer. But to carry a concealed handgun without restriction, an applicant must convince a firearms licensing officer of an actual—rather than merely speculative.
In other words, if the case goes against New York, the state—and, more vitally, New York City—would lose an important mechanism for determining who gets to legally carry a weapon in public. Anyone who merely wants to carry a gun would be allowed to do so.
Social science research on guns has repeatedly shown that the notion of an imagined or speculative threat is often racialized in ways that drive gun markets. For instance, sociologist Angela Stroud found that white gun owners in Texas contrasted what they held as their responsible firearm ownership against a racialized “criminal class” that aimed only to steal and rob if not thwarted by armed “good guys.” In her interviews, white gun owners would repeatedly describe anxieties about dangerous neighborhoods and racial others (“You hear about carjackings . . . let’s just say you pull up to a convenience store and there’s some certain people outside that make you feel a little nervous, then you’ve got your gun there . . . to make yourself feel more comfortable.”) Yet when pressed, every single white gun owner respondent in Stroud’s survey admitted that these encounters were based on imagined anxieties about persons of color—but had never even remotely occurred.
NRA executive vice president and CEO Wayne LaPierre stoked similar sentiments when he famously warned “good guy” gun owners to remain vigilant against “terrorists and home invaders and drug cartels and carjackers and knockout gamers and rapers” and “haters.” Such tribalism is, in short, good for the business of selling guns, and a ruling for the plaintiffs would crack open the markets of Democratic cities that currently allow only a handful of residents to have concealed-carry permits. Undoubtedly a windfall for gun manufacturers and retailers.
But at what cost?
There is no question that the gun laws of blue cities and states are imperfect, and are too often enforced in ways that disproportionately burden people of color. Gun-rights advocate Stephen P. Halbrook casts New York gun laws as vestiges of class struggle, asking whether in New York “‘the people’ have a right to bear arms, or whether ‘the people’ is a code term for a government-approved elite.” Moreover, these laws have not shielded blue cities from the effects of a nationwide upswell in gun murders: shootings of all kinds increased sharply across the United States during the pandemic, including in many blue cities, making 2020 the deadliest year for gun violence in decades. The spread of so-called illegal ghost guns poses a particular and concerning threat to public safety in cities like Los Angeles.
The Bruen case filing invokes the racially inequitable ways that New York’s gun laws have been applied. Siding with gun-rights groups is a coalition of New York–based public defender groups that, in an amicus brief, argues: “virtually all our clients whom New York prosecutes for exercising their Second Amendment right are Black or Hispanic. And that is no accident. New York enacted its firearm licensing requirements to criminalize gun ownership by racial and ethnic minorities.”
In counter-briefs, the New York City Mayor’s Office, the American Civil Liberties Union, Everytown for Gun Safety, and a host of other groups argue that making it easier for people to carry guns in public is precisely the wrong way to rectify policies that have racially inequitable outcomes, and would almost certainly lead to more, not less, policing. “Discriminatory law enforcement, of gun laws, or any other laws, is an Equal Protection [Clause] problem, and warrants serious attention from courts, the police, and our political leaders,” the ACLU brief argues. “The question before the Court in this case, however, is whether the Second Amendment permits the state to regulate concealed carry.”
From the broad perspective of public safety, New York’s gun laws have been remarkably effective by many measures. The year of the pandemic aside, gun-related injuries and deaths have been falling in New York City for the past decade, a period that correlates with when the city got serious about its gun laws. New York has notably low rates of gun trauma for a U.S. city of its size. Vitally, municipal and state laws and regulations have shown effectiveness at curbing gun trafficking—gun-rights supporters often cast stark divides between “legal” and “illegal” guns without acknowledging how these two economies are strongly linked.
Such laws also bolster the social fabric: limiting who gets to carry a concealed weapon in places such as subways, buses, bars, restaurants, stadiums, and parks promotes baseline trust by limiting one’s sense of the perceived threat posed by others. This smooths the way for different groups of people to cohabitate in dense urban areas. In deference to the fact that these concerns do not apply equally to all parts of the state, New York gun laws allow different regulations to apply to NYC than to upstate, for example, where there are long and respected traditions of firearm ownership. A tourist packing heat on New Year’s Eve in Times Square poses different concerns than does a deer hunter in Finger Lakes National Forest, the logic goes.
While direct causation is difficult to prove, New York has seen dramatically fewer mass shootings than states without equivalent gun-control regulations. Research suggests that there is an amplifying effect thanks to the fact that in addition to its own gun laws, New York borders states, notably Connecticut, that also have strong anti-violence legislation.
Conversely, so-called right-to-carry laws in many red states correlate with increases in violent crime and homicides as well as gun trafficking. Such laws also correlate with an increased likelihood that incidents of conflict, like road rage and domestic arguments, will turn fatal. As I’ve shown elsewhere, gun suicide rates are notably higher in these states as well.
Negative results cascade when states overturn gun permit laws in particular. For instance, in 2007, Missouri repealed a seemingly arcane 1921 permit law governing the purchase of firearms. Supporters of the repeal pitched the change as simply easing a tedious and outdated requirement that prospective gun buyers fill out paperwork at purchase—but this modest action was but the first domino to fall. Gun proponents built on the repeal to legalize permitless carry by anyone nineteen or older, nullify local gun-control ordinances, expand “stand your ground” protections, and empower citizens to carry weapons into bars, cars, restaurants, schools, and seemingly everyplace else.
By the start of the pandemic, Missouri had the second-weakest gun laws in the United States. Shootings and deaths skyrocketed, and local authorities lost the ability to do much about it. Predictably, the brunt of the trauma was borne by urban communities who were already at risk. More guns and more shootings led to white flight from cities such as St. Louis and Kansas City. Worse gun laws also led to more aggressive policing of minoritized communities, especially since officers lost the ability to disarm anyone carrying a firearm unless the person was put under arrest. Community leaders pleaded with state lawmakers to help them stem rising rates of gun death. “Let us find a way to try to save the babies who are dying on our streets, each and every day,” Kansas City mayor Quinton Lucas urged. “This isn’t politics, this is life and death.” But such efforts were repeatedly blocked because statewide legislation expressly forbade cities and communities from enacting even the most basic gun safety measures.
This could be the future we are facing as a nation, depending on how the Court decides. A decision against New York would gut many existing gun laws in states and cities across the country—and undermine the modern gun-control movement on which those laws are based.
Nearly a decade of activism, forged in the aftermath of horrific U.S. mass shootings, advocated not for the repeal of individual gun rights, but for laws that would keep schools, workplaces, concerts, and other public locales safer from gunfire. Voices of people fed up with gun death were so powerful following the 2012 Sandy Hook Elementary School massacre that even staunchly pro-gun politicians like Senator Marco Rubio’s called for a “comprehensive study” of gun laws. Public safety again became the rallying cry six years later in nationwide March for Our Lives protests in the weeks and months following the Marjory Stoneman Douglas High School shooting in Parkland, Florida. Those marches were widely described as a potential “tipping point” for gun reform. NRA spokeswoman Dana Loesch was booed when she appeared at a CNN town hall with survivors of the shooting.
And indeed, the United States has a long and vital history of interpreting the Second Amendment in ways that balance gun rights with efforts to reduce violence in public places. The Heller decision’s support of “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” built on bedrock U.S. law, practice, and tradition allowing states to regulate firearm possession and use in public because of the dangers posed to public safety. For instance, during the Founding Era, many states prohibited the use of firearms “on certain occasions and in certain locations.” North Carolina prohibited going armed “in fairs, markets, nor in the presence of the King's Justices, or other ministers, nor in no part elsewhere.” In the nineteenth century, states such as Tennessee banned concealed weapons but made exception for any person who was on a dangerous journey “to any place out of his county or state.”
All of that and more is up for grabs with the current Court case, and past opinions and dissents by Trump’s three expressly pro-gun justices give serious reason for concern. As a lower-court judge, Brett Kavanaugh wrote a scathing dissent in a pivotal 2011 Second Amendment case, when the D.C. Circuit Court upheld a District of Columbia ordinance banning most semiautomatic rifles. He argued that Washington, D.C., could not ban semiautomatic rifles on its streets because the right to bear arms superseded its interest in public safety. Neil Gorsuch’s appointment was buoyed by a $1 million ad campaign by the National Rifle Association. Amy Coney Barrett supports an expansive Second Amendment and has argued against the government’s right to “deprive” gun rights to persons convicted of certain crimes.
A ruling against New York could overturn a decade of Second Amendment precedents in ways that unravel gun regulations in cities and states across the United States by rendering many lower-court rulings and state gun laws unconstitutional. “I wish people would wake up about this,” a state-level Democratic politician in Tennessee told me when we discussed this possibility. “Any gun control law could possibly be at risk, from laws that make it harder to keep guns away from domestic violence offenders to safe storage laws to maybe even background checks.” Vox’s Ian Millhiser puts it succinctly: “The future of gun control in the United States could be quite grim—and Bruen could mark the moment when lawmakers’ power to fight gun violence falls apart.”
The question of who gets to carry a gun in public has a long racial history in the United States, and particularly so in the U.S. South. Carrying a gun in public was a privilege bestowed to white men, and was integral to white male authority. Armed white citizen militias emerged in southern states during the Revolutionary War to such an extent that their rights to bear arms were enshrined in the founding documents of the new country. Article VI of the Articles of Confederation, drafted in 1776 and ratified in 1781, required that “every state shall always keep up a well-regulated and disciplined militia, sufficiently armed.” The Constitution, signed in Philadelphia in 1787, granted Congress the power “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The Second Amendment, adopted in 1791 as part of the Bill of Rights, stipulated that “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.” Like much of the original Bill of Rights, the Second Amendment originally extended privileges to white people but not to slaves and free Blacks.
Courts in southern states followed suit in the years leading up to and during the Civil War by proclaiming that gun rights extended only to white “citizens.” In 1840 the North Carolina Supreme Court ruled in The State v. Elijah Newsom that “if any free negro, mulatto, or free person of colour shall wear or carry about his or her person, or keep in his or her house, any shotgun, musket, rifle, pistol, sword, dagger or bowie-knife . . . he or she shall be guilty of a misdemanour, and may be indicted therefore.” So-called Slave Codes in states such as Georgia, Mississippi, and North Carolina banned gun ownership by slaves and free Blacks because, as the Georgia Supreme Court put it in 1848 in an argument that presaged the infamous Dred Scott v. Sandford (1857) decision, “persons of color have never been recognized here as citizens; they are not entitled to bear arms.” Around this same time, the newly admitted state of Florida passed a law that allowed white citizen patrols to search the homes of “blacks, both free and slave and confiscate arms held therein.”
As legal scholar Adam Winkler details, after losing the Civil War, southern states adopted the Black Codes, laws designed to reestablish white supremacy by dictating what “freedmen” could and could not do. One common provision barred southern Blacks from possessing firearms or carrying them in public. To enforce the gun ban, white men riding in posses began terrorizing Black communities. Ku Klux Klan night riders then terrorized Black communities with the purpose of confiscating firearms that Black people may have obtained during and after the Civil War, or what has been called “Black disarmament.” Black armed self-defense was a not inconsequential part of the civil right movement, yet time and again, efforts by Black Americans to claim Second Amendment rights to own and carry firearms were met with violence.
After Heller, guns became ever-more prevalent and, in most parts of the United States, easier for everyone to purchase and carry. To be sure, ready access to civilian firearms portended the realization of arguments by Robert F. Williams, Malcolm X, and other leaders who once argued that Black Americans deserved the right to arm themselves in defense of myriad forms of white aggression. But as guns flooded southern states at previously unimaginable levels, conservative politicians and gun manufacturers upped the ante, continually reinventing ways to assure white tactical advantage while casting firearms as lethal prosthetics of white identity.
From a public health standpoint, the result of this civilian arms race has been nothing short of disastrous. But from a political perspective, the failed gun policies of red states have served as effective weapons with which to destabilize blue states and cities, and particularly ones with diverse racial compositions. Higher courts here became primary agents. Every Supreme Court discussion of guns after Heller—which undid the handgun ban in Washington, D.C.—has revolved around antiviolence efforts in blue states and cities. A 2010 case, McDonald v. City of Chicago, went after an ordinance in that city banning the possession of handguns as well as other gun regulations affecting rifles and shotguns. A mooted 2019 case, New York State Rifle and Pistol Association v. City of New York, similarly targeted the Big Apple. And now we have Bruen.
This historical review returns us to the question of why the Supreme Court would entertain nationalizing policies that have led to such catastrophic results. Justices have of late gone to laughable lengths to assert that their decisions are not based on politics. But in a broader sense, New York Rifle & Pistol Association Inc. v. Bruen represents but the latest effort by the GOP to use judicial and legislative tools to derail blue-state laws, policies, and programs on a range of matters, from health care to climate change to women’s reproductive rights. It’s hard to read these attacks—which are largely aimed at effective, health-promoting, and widely supported initiatives—as anything other than a federalist agenda of southern aggression.
If New York’s century-old gun law is overturned, it could spur a reckoning across the movements that aim to prevent gun violence. All of the momentous organizing bravely fought over the past decade in support of common-sense gun reform will never have been in vain: the efforts of millions of families, students, activists, volunteers, organizers, politicians whose lives have been shattered by gun violence—and who did something about it—literally put gun control on the map in a serious and sustained way.
Yet at this writing, the Supreme Court appears poised to undercut a central tenet of this anti-violence movement, and indeed of what was heretofore held as the core of republicanism—namely that people who live in towns, cities, and states should have the right to set laws and policies that work best for them.
Absent the important tool of state permit laws, the gun violence prevention movement might need to reimagine itself and its core aims and interventions. In doing so, it might more fully engage important collaborative work done by so-called violence interrupters in minoritized and low-income areas—although the effectiveness of such an approach has of late been called into question in cities unable to regulate the larger flow of guns. It will almost certainly need to look more upstream to address the structural drivers of gun violence in communities, including inadequate housing, disinvestment in neighborhoods, racist criminal justice systems, and limited options for living-wage work.
Or it might look to efforts to stop the violence in other global conflict zones—a group to which the United States tragically belongs when it allows over 40,000 of its inhabitants to die each year by such preventable means.