We got excited this week about this reasonable speculation that Justices Barrett and/or Thomas are in the majority on Bruen:
Here’s why that’s likely the case:
Tempting to start celebrating. But there are levels to this.
Level 1: 😢 five people in Washington aren’t saving gun rights
Level 2: 🥳 five people in Washington are saving gun rights
Level 3: 🤔 why should it matter what five people in Washington think?
In 2008, Heller moved things from Level 1 to Level 2. Yay, the Supreme Court was here to save the day. Systems thinkers might have contemplated Level 3 just as a fun intellectual exercise. But the 14 years since then have highlighted something else:
Level 4: 🙃 wait, does it matter what five people in Washington think?
Heller stopped Washington, D.C. from imposing an outright ban on handguns. Two years later, in 2010, McDonald v. Chicago did the same in Chicago. Those two landmark Second Amendment rulings drove the repeal of two handgun bans and then went on to achieve … pretty much nothing else.
(D.C. got shall-issue carry because of a D.C. Circuit ruling based on Heller, and in a roundabout way the Seventh Circuit did the same in Illinois. But that’s it.)
It’s easy to point to moments where the Supreme Court spectacularly discarded people’s rights — Plessy v. Ferguson, Buck v. Bell, Wickard v. Filburn, Korematsu v. U.S., etc. etc. — as the thing that allowed a terrible chain of events. But did they allow the events, or were they caused by those same events? In the case of, say, Korematsu, you had a country that was willing to force everyone on the west coast with Japanese ancestry into camps. Would that country have been stopped by a Supreme Court that in the midst of it all piped up to say, “Hey everyone, you can’t imprison people for being Japanese, ok?” And more to the point, would such an environment produce a Supreme Court that would say that?
Conversely, and less famously, it’s also easy to find examples where the Supreme Court did stand up for people’s rights … and was ignored. Re Worcester v. Georgia, there’s the Andrew Jackson apocrypha that “John Marshall has made his decision, now let him enforce it.” In the 1950s and ‘60s, the Court’s school desegregation rulings would have been dead letters without the years of hands-on enforcement effort they were followed up with. And apart from the residents of D.C. and Chicago being able to own and carry handguns, Heller changed nothing on the ground for anybody’s gun rights.
And yet, gun rights have gotten stronger. In most of the country, they’re in much better shape today than they were in 2008. There’s a real possibility that Bruen makes shall-issue the law of the land in the next two months. But that’s on the back of a successful multi-decade effort to liberalize carry laws state by state. If 42 states were still may-issue, as they were in the ‘80s, Bruen would be a pipe dream.
But the cultural groundwork still matters more than the law. Think ahead. Suppose in a few weeks, Clarence Thomas writes a barnburner majority opinion in Bruen. Shall-issue is the law of the land. Yay.
But is it the law in practice? Some states will just go with it. But others are going to Rube Goldberg their way out of this. “Sure, you can get a carry permit. The application costs $340, plus another $88.25 for fingerprints [1]. You have to interview in person. Appointments are available from 9-9:30am on the third Monday of every month. You also can’t carry in bars, restaurants, event venues, or on public transport.”
What really keeps gun rights healthy isn’t a court coming in to save the day at the last second. It’s people liking gun rights to the point that the question never needs to go to court.
The Supreme Court can help around the edges. But it has never demonstrated an ability to turn a popular tide. It ratifies what’s coming anyway. Either the Court gets on board, or people keep trying until it agrees with them.
And in a sense, good. If you were worried about what five people in Washington think, don’t be. The good news is that in practice, they can’t tell people what to do. They can just say what people were going to do anyway.
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[1] This is the actual current cost of a license to possess a handgun in your home in New York City.
This week’s links
Surgeon reacts to Garand Thumb’s “.22 vs human head” video
Breakdown from Dr. Chris Raynor.
Anti-violence program based around cognitive behavioral therapy showing promising results in Chicago
The recently completed trial tracked some 2,500 men in Chicago’s most violent neighborhoods and found that men who participated in an intensive, 18-month program called READI Chicago were nearly two-thirds less likely to be arrested for a shooting or homicide and nearly 20% less likely to be shot or killed themselves than a similar group of men that weren’t in the program. Those are all significant declines considering a third of participants had been shot at least once before enrolling, and had an average of 17 arrests on their rap sheet.
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