The Supreme Court majority has just struck down a very sensible gun safety law–just as the often calcified Senate toddled toward a modest, though significant, breakthrough.
Undeterred by my lack of legal credentials, I’m gonna venture that the American people had a say in both developments. Please bear with me…
Fittingly, the 6-3 majority opinion was written by Justice Clarence Thomas, who should be hiding under the bench for his questionable refusal to recuse himself from a case involving his Insurrectionist wife.
When wily ole Mitch McConnell signs on to gun safety legislation—modest though it is—you know the Republicans fear they’re on the wrong side of an issue. In fact, Mitch was forthright. He told reporters:
“It’s no secret that we’ve lost ground in suburban areas. I hope it will be viewed favorably by voters in the suburbs we need to regain to be in the majority next year.”
Throughout the country, tens of thousands of irate and terrified Americans “Marched for Our Lives” and flooded legislative representatives’ offices with demands that Congress—specifically the Senate—do something about our gun violence crisis.
The legislation that passed the Senate with fifteen Republican votes has many gun-safety advocates encouraged. Shannon Watts and Kris Brown, heads of Moms Demand Action and Brady United, respectively, have both praised the provisions concerning domestic partners, red flag warnings, and expanded background checks as life saving.
Fred Guttenberg, who has been a fervent gun safety advocate since the death of his beloved daughter Jaime in the Parkland shooting, said he cried when he heard the bill would likely pass—and he’s prepared to hug Senator John Cornyn (R-TX), who helped shepherd it through. He has expressed his gratitude to President Biden, who promised him there would be gun safety legislation during his administration.
President Biden, though acknowledging he’d have preferred a ban on assault weapons and large-capacity magazines, has said he’ll happily sign such a bill.
Breaking the 30-year deadlock that prevented Republicans from permitting any gun restrictions at all is significant. The public pressure has overwhelmed the gun lobby. At least it seems that way. Since the bill is a compromise, it has a lot of dollars that will go to the states and may do little good. We can only hope that in the hands of some malevolent governors, it will “do no harm.”
Energized gun safety folks say passage of this bill is a step in the right direction. Banning assault weapons and large magazines remain vital tasks ahead to save many more lives.
Then There’s the Supreme Court
Today’s ruling seems like the first of a one-two punch against majority American opinion. The other is the expected decimation of Roe v. Wade.
Both seem guaranteed to result in the deaths of untold numbers of innocent people.
Eliminating the century-old New York State law could lead to the proliferation of concealed weapons in public spaces—such as the subway. Just what we need, right?
There’s one good thing about today’s ruling: it could have been worse.
And this is where I wonder if the people’s will might have had an impact.
The ruling didn’t–as some Court watchers feared it might–discard Scalia’s Heller observation that the Second Amendment permits some restrictions on guns.
Apparently, Justices Roberts and Kavanaugh avoided that disaster with a concurrence stating the decision affects only the six states where the laws permit authorities to “deny concealed-carry licenses even when the applicant satisfies the statutory criteria…Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”
It’s still an awful decision that will worsen an already terrible situation.
Jennifer Rubin, writing in The Washington Post, described the ruling as less broad than some are saying, but “the convoluted reasoning behind the ruling is perhaps more dishonest than even the court’s worst critics imagine.”
The Court continues to do the bidding of the dark money forces that put them there and to thumb their noses at the broad American public, as well as the legislators who appear ready to respond to their constituents.
Many legal scholars say that Justice Scalia’s reasoning in Heller (the 2008 ruling that was the last court decision on guns thirty years ago) was a textualist’s misinterpretation of the Second Amendment, which was speaking of a well-regulated militia and not individual gun ownership.
The Threat to Our National Security
Not incidentally, this Court’s ruling on guns will affect our national security—and not in a good way.
Mary E. McCord, who was Acting Assistant Attorney General for National Security (2016-2017), is now the executive director of the Institute for Constitutional Advocacy at the Georgetown University Law Center.
She was part of a large group of former national security and law enforcement officials who presented a brief to the Supreme Court when they heard the arguments in the New York case, New York State Rifle & Pistol Association v. Bruen. (Bruen is the Superintendent of the New York Police.)
In an essay in The New York Times written right after the mass shootings in Uvalde and Buffalo, she called these crimes what they are:
“terrorism by definition: the use of violence to intimidate or coerce a civilian population or influence government policy. In the United States, it is often accomplished using semiautomatic weapons.”
Since FBI Director Christopher Wray cited domestic terrorism as our main threat, it seems we’re in the midst of two kinds of domestic terrorism: the unorganized, rampant acts we witness with these mass shootings; and the organized ones we’re learning more about from the January 6th Committee hearings.
But that’s not all. The brief McCord and her fellow national security folks filed to try to talk sense to the Supreme Court majority said the following:
“Indeed, foreign terrorist organizations themselves have repeatedly made clear that they seek to take advantage of the ubiquity of firearms in the United States to recruit new members and plan terror attacks. As one prominent American al-Qaeda member told potential recruits:
‘America is absolutely awash with easily obtainable firearms. . . . You can go down to a gun show at the local convention center, and come away with a fully automatic assault rifle without a background check and most likely without having to show an identification card. So what are you waiting for?’
“Similarly, a 2017 Islamic State propaganda video featured an American fighter, wearing fatigues and a holstered pistol, urging sympathizers in the United States to ‘[t]ake advantage of the fact that you can easily obtain a rifle or a pistol in America’ and ‘[s]pray the kuffar [infidels] with bullets.’”
In her essay, McCord writes that “the arguments advanced by the challengers, if accepted, could call other gun-safety restrictions into question.”
She and her fellow signatories “were united in urging the court to consider the national-security and public-safety threats posed by easy access to firearms.”
And she concluded:
“National security and public safety require far more than a good guy with a gun. They require effective regulation over access to these weapons.”
I’m not writing all this just to scare everybody. I think it’s obscene that we have a Supreme Court majority that in this instance and others is increasing the likelihood not only of misery, but of actual death and devastation.
This group, assembled over years by Republicans paid by dark money donors, is turning back established rights one after another.
But We’re Not Powerless.
Josh Marshall, a journalist whose Talking Points Memo is a highly respected online publication, wrote a New York Times essay that was focused on advising Democrats how to win in November.
The approach: make the elections a referendum on Roe v. Wade. I would add gun safety as a parallel imperative. And throw in voting rights to protect our democracy for good measure.
“Here’s one way to do that: get clear public commitments from every Senate Democrat (and candidate for Senate) not only to vote for the Roe bill in January 2023 but also to change the filibuster rules to ensure that a majority vote would actually pass the bill and send it to the White House for the president’s signature.”
“If my math is right and there are 48 Senate Democrats ready to make that pledge, they need two additional Democratic senators in the next Congress. And that is the party’s message that makes the 2022 midterms a referendum on Roe: “Give us the House and two more senators, and we will make Roe law in January 2023.”
The point is that we must all call our Senators and make sure they understand these are the issues animating our votes. Shannon Watts of Moms Demand Action, who’s said her organization spurred a million calls to legislative offices in just a few weeks has said “Gun safety voters are the new swing voters.”
The voices of the American people have been heard.
Though Marshall acknowledges that the Court may strike down such a law, he calls that threat “real but overstated. And in any case, refusing to act because of what opponents might do is the definition of political paralysis.”
So I hope you’re with me in the determination to persuade our Senators we need this commitment: Promise us you’ll support further gun safety legislation, codify Roe, and protect voting rights–and you’ll vote to overcome the filibuster to accomplish these life-saving efforts.
With a more solid Senate Democratic majority–and a Democratic House–we can then take on this Supreme Court.
But that’s a topic worthy of its own blog post.