Skip to main content
The Latest /
Supreme Court

Far-Right Justices Threaten Us All with Latest Gun Violence Ruling

Clarence Thomas
News & Analysis

In New York State Rifle & Pistol Association Inc. v. Bruen, the far-right majority struck down a New York law dating back to 1911 that requires a permit to carry a concealed firearm. The ruling weakens the ability of states and cities to have reasonable restrictions on firearms. In so doing, it also threatens the lives of people throughout the country.

How did New York try to limit gun violence?

New York requires an individual to show “proper cause” in order to get a license to carry a concealed firearm. Proper causes include a specific, individualized, non-speculative belief that a firearm is needed for self-defense. A general desire to defend oneself from crime in high-population cities is not sufficient.

New York state residents Robert Nash and Brandon Koch applied for licenses to carry arms. The state issued them licenses to carry concealed handguns outside the home for hunting and target practice. However, they did not get licenses to carry concealed firearms for self-defense in areas frequented by the general public. Joined by the New York affiliate of the NRA, they sued, claiming their Second Amendment rights were violated.

How did the Court rule?

In a 6-3 opinion written by Justice Clarence Thomas and joined by his fellow ultra-conservatives, the Supreme Court ruled that the state had violated the two men’s Second Amendment right to carry firearms for self-defense. The majority ruled that the amendment gives “law-abiding citizens with ordinary self-defense needs [the] right to keep and bear arms in public for self-defense.”

This goes even farther astray from the actual meaning of the Second Amendment than the Court’s 2008 decision in Heller. That was when the majority first crossed out the first half of the amendment and ruled that it wasn’t limited to bearing arms for authorized military use. But even Justice Scalia’s opinion in that case did not open the door to today’s ruling. While Heller found a right to self-defense in the home, Scalia stressed that the Court was not undermining longstanding gun safety measures. That 2008 majority looked at American history in making its interpretation and noted with approval that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

But with three Trump justices, today’s majority has become far more extreme.

The six-justice bloc held that when assessing firearms restrictions, judges should not engage in the type of scrutiny that they do in other cases. Instead, they should just analyze history. (Of course, real historians actually are trained to do historical research, unlike justices, whose academic and professional training is completely different. In addition, real historians do their own research and develop expertise over a lifetime. They do not rely exclusively on material and arguments presented to them by parties with a vested interest in their historical conclusions.)

Under the new approach, a limitation on firearms is constitutional if its burden on the right to self-defense is comparable to those in historical laws that existed in 1791 (when the Second Amendment was adopted) and 1868 (when it became applicable to the states via the Fourteenth Amendment). Even if the “burden” is comparable, judges still must strike the modern law down unless that “burden” is “comparably justified.”

The majority notes that historical laws prohibited firearms in “sensitive places,” but they claim to know of only three such places: legislative assemblies, polling places, and courthouses. It is up to modern judges to determine if “new” sensitive places are analogous, so that gun restrictions in those places can be upheld.

What did the dissent say?

Justice Stephen Breyer wrote the dissent, joined by Justices Sonia Sotomayor and Elena Kagan. The dissent sharply criticized the majority's “history-only” approach to Second Amendment cases. As Breyer acknowledged. “I am not a historian, and neither is the Court.”

He contends that the majority got its historical analysis wrong: He cites numerous public-carry restrictions in the founding era, as well as the era right after the Civil War. Thomas and the other far-right justices reached their factual conclusions about previous laws “[o]nly by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms.”

In addition, Breyer wrote, the majority “refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be.” He noted “the potentially deadly consequences” of that refusal. The dissent lists a long series of mass shootings that have killed innocent people, destroyed families, and horrified the nation – the recent mass shootings in Buffalo, New York and Uvalde, Texas are just a small part of a frighteningly long list. Breyer noted that with 277 reported mass shootings so far this year, there has been an average of more than one per day.

The dissent also explained that mass shootings are only part of the problem. Breyer discusses the violent and often fatal impact of easy access to firearms in situations of road rage, domestic abuse, interactions with police, political protests, and suicidal depression.

Who is affected by the majority’s decision?

New York is one of six states plus the District of Columbia requiring good cause for a public-carry license. Those states contain a quarter of the nation’s population, and they will be immediately affected by the decision.

But the outcome of this case will affect people in every part of the country. Even though only a few states have licensing procedures similar to New York’s, all firearms safety laws are now subject to the new type of analysis that Bruen orders. So even laws that have been upheld since Heller can be challenged again, with lower court judges directed not to engage in the type of scrutiny and balancing of interests that previously led to upholding those laws.

Breyer wrote:

The primary difference between the Court’s view and mine is that I believe the [Second] Amendment allows States to take account of the serious problems posed by gun violence that I have just described. I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them.

The emboldened far-right 6-3 majority is the result of many years of organizing around the courts by the Far Right. As the majority they created wreaks havoc on our rights and our lives, the movement to engage in the long-term work to repair our courts grows stronger.