On the same day the United States Senate prepares to pass the first bipartisan gun law reforms in nearly three decades, the Supreme Court thumbed its nose at the legislative branch and the American people.
In a 6-3 ruling in New York State Rifle & Pistol Association Inc v Bruen announced on Thursday morning, the court’s conservatives struck down the Sullivan Act, a 1911 state law that required New Yorkers to hold permits issued by local police to carry concealed weapons. The law applied not only to handguns, but to any weapon small enough to be secreted on a person, including knives, clubs, brass knuckles and bombs.
The Sullivan Act required applicants to meet statutory criteria, including safety training and a background check, and “demonstrate a special need for self-protection”. Police had discretion in deciding whether applicants satisfied the standards. The law survived multiple legal challenges, and guided gun safety legislation in many states.
The court’s majority ruled that the imposition of a special need standard for a constitutionally guaranteed right violated the constitution. This built upon the court’s 2008 decision in District of Columbia v Heller, that decreed the Second Amendment guarantees Americans’ right to own guns for self-defence in their homes.
Yesterday the court extended that right to self-protection beyond the threshold of home and hearth. The judgment did allow that restrictions could be imposed in “sensitive places”, but offered no guidance as to what venues might qualify. Notably the Supreme Court prohibits the carrying of firearms within its premises.
With this decision, the court has made a radical power grab and opened a Pandora’s box for future litigation to repeal gun safety laws nationwide.
Few people know that the Second Amendment has never granted unfettered gun rights to Americans. For most of the country’s history, laws regulating the ownership and use of firearms have been the prerogative of the states. This harkens to the originalist ideal of federalism as codified in the Tenth Amendment, whereby powers not delegated to the federal government were reserved for the states. This is why the Sullivan Act remained in force for more than a century, permitted by successive Supreme Court jurists.
However, starting with Heller, and expanding now with New York State Rifle & Pistol Association Inc v Bruen, the Federalist Society’s hired guns now sitting on the nation’s highest bench have upended 230 years of jurisprudence. This caps a half-century effort by right-wing activists and gun manufacturers to declare open season on America.
There is nothing originalist about cherry-picking the Second Amendment to serve an ideological agenda, while trampling the Tenth in the process. So it’s one baby step forward in Congress, and one giant leap backwards across the street.
If only the court’s conservatives showed the same deference to the authority of state legislatures on gun safety as they will sanctimoniously proclaim when they scrap women’s right to autonomy over their own bodies.
