In America, returning to “normal” means returning to the constant drumbeat of gun violence and mass shootings. We are the only wealthy country in the world that refuses to protect ourselves or our children from gun violence, and the year of pandemic-induced isolation did not make us any less barbaric.
In the wake of two high-profile mass shootings in a week—and numerous other instances of gun violence that didn’t even make the evening news—all of the typical arguments are back on the table. As usual, Democrats promise to advance overwhelmingly popular if tepid gun regulations. As usual, Republicans promise to obstruct those efforts. As usual, many more Americans will die while Joe Manchin tries to figure out which gun loopholes must be kept open to preserve the right of his constituents to kill each other with minimal hassle.
The debate about what to do in the wake of these mass shootings seems more pointless to me than usual, and not just because I’m desensitized to mass death or cynical about political compromise (though I am those things, as I must be, as I watch numerous politicians shrug off half a million deaths while rushing to reopen the beaches for spring break). The debate is pointless because, regardless of the outcome in Congress, the conservative-controlled Supreme Court will not allow us to have commonsense gun regulation, let alone any ambitious, progressive legislation to get guns off the streets, like they do in other countries that don’t have mass shootings every other day.
Democrats (and Americans who don’t want to be shot to death) lost the gun battle when Mitch McConnell stole a seat on the court in 2016. They lost the war when Ruth Bader Ginsburg, may her memory be a blessing, didn’t live until January 20, 2021. There is no new gun regulation or reform that can survive six bloodthirsty conservatives on the Supreme Court, just like there is no way to “win” a game of Russian roulette when there are six bullets in the revolver.
In fact, far from upholding whatever newly passed law that’s ineffectual enough to survive a filibuster (you know, the same filibuster Democrats refuse to kill), the Supreme Court is poised to go in the other direction and dismantle what gun regulations we already have.
This Friday, the justices will meet to decide whether to take a case called New York State Rifle & Pistol Association Inc. v. Corlett. It’s a test case brought by ammosexuals, argued by former George W. Bush solicitor general and Republican super lawyer Paul Clement, that is designed to create a brand new constitutional right to carry firearms outside the home, whenever a person wants to.
Under current law, whether you can carry a weapon outside the home—and what kind of weapon you can carry, a handgun or a long gun—depends on the state you happen to live in and the permitting process in that state. In Texas, you can walk around packing like Rambo to overcompensate for… not packing like Rambo, no questions asked, no permit required. In California, not so much.
There is a lot of inconsistency between the different states on this issue. For instance, in New York you can carry “long guns” outside without a permit but not “handguns.” In New Jersey, it’s just the opposite: There you can carry handguns but not long guns without a permit. Conservatives want the Supreme Court to resolve part of this conflict in laws by getting rid of the permitting process for handguns (or liberalizing them to the point where functionally anybody can get a permit), effectively inventing a new unequivocal right to bear these weapons outside the home. That’s different from the last gun right they invented in 2008: the right to bear arms for self-defense. The astute reader will remember that the original constitutional right was merely to bear arms to form militias and kill Black people who didn’t want to be held in bondage.
A new carrying right might not seem like a huge change in the already homicidal, conservative interpretation of the Second Amendment. But consider the specifics of the case: New York, like a number of states, has a permitting process through which people who can demonstrate a “proper cause” can get a license to carry their hand cannons outside their homes. What’s at issue in this case are people who were denied a permit because they couldn’t show the state licensing board a good reason to need their guns all the time.
Restricting gun access to those who can show “cause” is the linchpin of every gun regulation. It’s the reason background checks are constitutional: Our society thinks there are some people who should be allowed to have guns, and others who should not. But conservatives are trying to undermine the very theory on which any gun can be restricted for any person, at any time. I shouldn’t have to explain why that’s dangerous. I don’t know how many people have to die before conservatives realize their legal theories are killing us.
But I know the answer to that equation is always “more.” Conservatives always demand that more blood be sacrificed to their pet theories. And the ones on the Supreme Court will demand more here. It only takes four justices to grant certiorari and force the court to take up a case. Clarence Thomas, Samuel Alito, and Neil Gorsuch are locks to want to invent this right. Alleged attempted rapist Brett Kavanaugh asked for a gun case last year, when he was complaining that another case brought by the New York State Rifle & Pistol Association (this one trying to overturn New York’s restrictions on gun transportation) was dismissed because New York changed its laws to avoid a bad Supreme Court ruling.
So that gets us to certiorari. After that, once the case is heard, conservatives only need one more vote to turn the whole country into a crossfire. Enter Amy Coney Barrett, the justice confirmed after the presidential election had already started. Based on her previous cases, Barrett appears to have an expansive view of gun rights. In one case she heard in 2019, while still a circuit court judge, she wrote (in dissent) that “virtue based restrictions” could not be placed on gun rights. Thus she determined that people with felony convictions could not be denied gun rights (though she was open to the possibility of denying them voting rights, because of course conservatives think it should be easier to kill than to vote). It’s the kind of dissent that pleases pissed-off ex-boyfriends everywhere. It’s likely that New York’s requirement that people have a better reason than “nighttime is scary without my 9mm woobie” is too much of a restriction for a judge like Barrett.
Any restriction is likely too much regulation for Barrett and her four new ammosexual friends. That’s the problem with the political and social debate that will follow whatever mass shooting has happened by the time you read this. We can’t have “common sense gun safety” if we don’t have judges willing to apply common sense.
Democrats are always bringing the proverbial “knife to a gunfight” on this issue. Gun reform is no longer merely a question of legislation or even popular will. It’s a question of constitutional law.
As long as conservatives are allowed to control how the Constitution is interpreted, the Constitution will remain a license to kill.