America is in the midst of a gun violence crisis. In 2020, 77 percent of homicides were committed with a firearm—a record high, and up from 67 percent a decade earlier. A Washington Post headline put it concisely earlier this year: “2020 was the deadliest gun violence year in decades. So far, 2021 is worse.”
The Supreme Court could be preparing to exacerbate this crisis. On Wednesday, it will hear oral argument in a challenge to a New York state law that puts strict limits on carrying guns outside of the home. With its recently-expanded 6-3 conservative supermajority, the Court likely now has five votes to strike down New York’s law as an unconstitutional infringement on Second Amendment rights—and by extension, perhaps similar laws in several other states, too.
If the Court invalidates the New York law, it will open the floodgates to more people carrying more guns in public—a result that could, social science research suggests, fuel an increase in the number of gun deaths across the country. It will also prove the Court’s critics right, by showing that the supposedly apolitical justices are happy to deliver long-sought culture-war victories for the Republican Party and the conservative legal movement. The conservative majority seems poised to adopt new Wild West gun policies that Americans emphatically do not want, simply because they now have the votes to do it.
New York, California, Massachusetts, and several other states have enacted laws against carrying guns in public. In New York, an applicant for a license to do so must show “proper cause,” which courts have interpreted to mean a specific, “articulable” need to carry a gun for self-defense. In practice, officials decide that few people meet that standard beyond a handful of celebrities, private security guards, and former police officers. Evidence also shows that New Yorkers of color are disproportionately subject to criminal prosecution for gun possession—part of this country’s long history of restricting the supposedly sacrosanct right to self-defense to only the privileged and powerful.
The case, New York State Rifle and Pistol Association v. Bruen, was brought by a New York gun group and two rejected applicants who argue that this requirement violates their Second Amendment rights. The case sets the stage for what could be the Court’s first major gun ruling in a decade—and possibly a radical change in the place of guns in American society. In 2008, in District of Columbia v. Heller, the Court dramatically expanded Second Amendment rights and struck down Washington D.C.’s restrictions on possessing guns in the home, egged on by conservatives who wanted to manufacture a strong constitutional right to gun possession. The Heller majority badly misinterpreted the Second Amendment, a provision that many scholars insist was intended to protect only the right to establish militias, not an individual right. As bad as Heller was, things will be much worse if conservatives succeed in extending it from a right to possess guns at home to a right to carry them in public.
Since 2008, the Court has had little to say about gun rights. That is likely because the pro-gun justices could not be sure they had five votes for their next big expansion of the Second Amendment. But the Court’s recent dramatic shift to the right changed that calculus. With Justice Amy Coney Barrett now in the seat vacated by the the late Justice Ruth Bader Ginsburg, pro-gun forces could prevail in Bruen even if Chief Justice John Roberts breaks ranks with his fellow conservatives, as he occasionally does, and votes to uphold the law. They seem to have decided, in accepting this case, that the moment is right.
A ruling that strikes down the law could create a robust new market for guns for self-defense in densely populated cities that previously restricted their availability. Capitalism would soon work its magic. It is not hard to imagine that gun manufacturers would advertise the availability of guns, stores in big cities would stock them, and at least some people who do not currently own guns—because the law prohibits them from carrying—would buy them.
More guns would lead to more violence and more deaths—or, at the very least, make it harder for lawmakers to stop it. That’s clear from the social science detailed in the many amicus briefs in Bruen. The NAACP Legal Defense Fund and the Urban League cite a study showing that in states with more permissive concealed carry laws, violent crime rates were 13 to 15 percent higher than they might have been if stricter regulations were in place. This burden falls more heavily on some communities than others: The brief points out that Black Americans are ten times more likely than white Americans to die from gun violence, and firearm homicide is the leading cause of death for young Black men.
Another brief, filed on behalf of social science researchers and public health experts, explains that studies have consistently shown that right-to-carry laws are linked to increases in violent crime after their adoption. Depending on how the Court rules for the pro-gun forces in Bruen, it could effectively adopt a right-to-carry regime for the entire nation.
The petitioners’ position here is significantly out of touch with popular opinion. Americans support gun safety laws. In a Politico poll conducted earlier this year, 64 percent of registered voters said they support stricter gun control laws, while only 28 percent oppose them. In a recent Pew poll, just 14 percent of Americans said gun laws already in place should be less strict.
Conservatives have long charged—since the Warren Court of the 1950s and 1960s—that liberals are “judicial activists” who use the courts to do what elected branches cannot. That is precisely what the Court is poised to do in Bruen: Gun-rights activists would have no chance of getting Congress, or the Democratic-controlled legislatures of New York, California, and Massachusetts, the sort of access to guns that the petitioners in Bruen are seeking. Control of the Court, though, makes this result possible.
The conservative justices have been on a charm offensive of late, trying to persuade the public that they are not, to use Barrett’s decorous phrase, “a bunch of partisan hacks.” But when it comes to guns, the Court is very likely to act in the hackiest of ways. There are few issues with a sharper partisan divide than whether it should be easier to carry guns in public. In a Pew poll, 72 percent of Republicans and Republican-leaning voters said yes, while just 20 percent of Democrats and Democratic-leaning voters said no.
The Court’s drive to expand gun rights is an ideological crusade divorced from social science and common sense—and the justices know it. That is evident just by paying a visit to the Supreme Court building. Visitors are required to pass through metal detectors, and members of the public are not allowed to enter with guns. Is it too much to ask that the justices allow others to enjoy the kind of safety they enjoy at work every day?
