Portside

Another Supreme Court decision may soon send shock waves. It’s the first time the justices will rule on what the Second Amend­ment means since 2010.  

For centur­ies, the Second Amend­ment was construed as refer­ring to service in the mili­tia. It wasn’t until 2008 in District of Columbia v. Heller that the Court estab­lished an indi­vidual right to gun owner­ship. The decision was the culmin­a­tion of a decades-long campaign by the National Rifle Asso­ci­ation and other gun rights allies, as I wrote in my book The Second Amend­ment: A Biography. (Two years after Heller, in McDon­ald v. City of Chicago, the Court forbade states, not just the federal govern­ments, from infringing on the gun owner­ship rights recog­nized in Heller.)

The Supreme Court has not made a major Second Amend­ment ruling since 2010. Mean­while, hundreds of judges around the coun­try developed a robust approach to the Second Amend­ment, as my Bren­nan Center colleague Eric Ruben has docu­mented. Yes, they have ruled, it is an indi­vidual right, but like other indi­vidual rights, there can be restric­tions based on soci­ety’s needs, such as public safety. The judges borrowed an approach from the First Amend­ment known as “tiered scru­tiny.” The vast major­ity of gun laws were upheld.  

Now there’s a new Supreme Court super­ma­jor­ity of six justices. The NRA is bank­rupt and discred­ited, but its polit­ical power lives on in the life­time-tenured justices, many of whom the organ­iz­a­tion pushed into power. This case is the result.  

New York State Rifle & Pistol Asso­ci­ation Inc. v. Bruen chal­lenges a 1913 New York law limit­ing who can carry a concealed weapon in public places. In order to get a concealed carry license, New York­ers must show that they have “proper cause” — basic­ally a greater need for self-protec­tion than others in the community. The law’s chal­lengers contend that the Second Amend­ment guar­an­tees them the right to carry a concealed weapon without the permis­sion of a licensor. 

At the oral argu­ment, Justice Samuel Alito asked New York State’s lawyer a start­ling ques­tion: “There are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?” Alito added, “All these people with illegal guns: they’re on the subway, walk­ing around the streets, but ordin­ary, hard­work­ing, law-abid­ing people, no. They can’t be armed.” 

The sugges­tion that anyone would want subway riders to be carry­ing guns is absurd. Perhaps the justice is spend­ing too much time in his base­ment watch­ing 1970s Betamax tapes of The Warri­ors or Death Wish. That dysto­pian depic­tion of the transit system hasn’t been the real­ity in decades, if ever. Indeed, in Essex County, New Jersey — where Alito grew up, popu­la­tion approx­im­ately 800,000 — there were more than 150 shoot­ings last year. Compar­at­ively, the subway system recor­ded just three in the same time frame, while moving hundreds of millions of passen­gers.

The idea that “ordin­ary, hard­work­ing, law-abid­ing people” should show up armed on a subway, or a college campus, or for that matter a city street, is utterly at odds with the real world and real life as real people actu­ally live it. But this Court, drenched in dogma and origin­al­ist faux-history, may force that on cities all across the coun­try.  

Perhaps they will rule that cities can bar guns from unusu­ally danger­ous places. (The argu­ment spent a surpris­ing amount of time on the ques­tion of whether the campus of the NYU School of Law was, in fact, a campus, or was too groovily urban to be seen that way.)  

Some observ­ers expect Justice Clar­ence Thomas to write this opin­ion. He has repeatedly decried the Court’s unwill­ing­ness to blow up gun laws. He thinks that there should not be First Amend­ment-style scru­tiny but rather a sole focus on “text, history, and tradi­tion.”  

Fortu­nately, there is much “history” and “tradi­tion” that supports restric­tions on carry­ing weapons. We may hear Holly­wood-infused ideas of “law-abid­ing people” pack­ing heat. In fact there’s a strik­ing photo from Dodge City, the legendary fron­tier town. It shows a sign planted in the middle of its main street: “The Carry­ing of Fire Arms Strictly Prohib­ited.”  

Bruen may be a bigger case than Heller. Only a hand­ful of Amer­ican cities had DC-style bans on hand­guns inside the owner’s home, so the Heller decision didn’t touch most of the coun­try. In contrast, eight heav­ily popu­lated states have concealed carry laws similar to the one at issue in Bruen. If the Court strikes down New York’s law, roughly one-quarter of Amer­ic­ans can expect to inter­act with people carry­ing deadly weapons.  

The Supreme Court could issue a more limited ruling in Bruen, for example rescind­ing the “proper cause” require­ment of the New York law without declar­ing an abso­lute consti­tu­tional right to concealed carry. But recent history suggests these justices aren’t inter­ested in limited rulings. Watch out for fall­ing preced­ents. 

Remem­ber what Justice Antonin Scalia, who wrote Heller, said of his colleague Clar­ence Thomas. When asked about the differ­ence between their juris­pru­dence, Scalia replied, “I am a textu­al­ist. I am an origin­al­ist. I am not a nut.”   

Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. A nonpartisan law and policy institute that focuses on improving systems of democracy and justice, the Brennan Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. Waldman, a constitutional lawyer and writer who is an expert on the presidency and American democracy, has led the Center since 2005.