How a US Supreme Court ruling is transforming gun control
It was the 199th mass shooting of the year so far in the United States: On Saturday in Allen, Texas, a gunman opened fire on an outdoor mall, killing eight people, including three children.
But even as the carnage has led to another attempt to increase restrictions on guns, a concurrent string of lawsuits grapples with where the constitutional right to “bear guns” ends – and where the government’s right to impose controls on laying begins.
That debate has gained momentum following a Supreme Court decision last June that limited lawmakers’ ability to publicly restrict gun ownership, offering a broad interpretation of the Second Amendment to the Constitution, the basis for gun rights in the US.
The ruling has sparked an “explosion in lawsuits,” said Nick Suplina, a senior vice president of law and policy at Everytown for Gun Safety, a nonprofit organization that supports stricter gun laws.
Suplina explained that June’s decision has “really encouraged the furthest corners of the world [pro-gun] movement to say that anything you can think of in terms of gun safety is unconstitutional.”
How those lawsuits play out could shape the gun control landscape for generations and ultimately shape the ability of state and federal lawmakers to enact lasting gun laws, advocates like Suplina told Al Jazeera.
“This moment is really important because extended, unprecedented readings of the Second Amendment could lead to challenges of lifesaving gun laws,” he said.
The current era of legal change began with the June ruling in New York State Rifle & Pistol Association v Bruen, which was based on the 2008 District of Columbia v Heller. That precedent established that a citizen’s right to bear arms is not connected to service in a militia—two concepts linked in the Second Amendment.
The Bruen case directly challenged a New York law that required gun owners to prove they had a special need to carry a firearm in public. The ruling deemed New York law unconstitutional and said the constitutional right to bear a gun extends beyond the home.
Conservative Supreme Court Justice Clarence Thomas wrote the majority opinion calling for new gun restrictions to pass two tests. First, the gun in question must fall under the auspices of the Second Amendment. Second, the government must justify any restrictions on the right to bear arms “by demonstrating that it is consistent with the country’s historical tradition of firearms regulation”.
That second item has proven particularly disruptive to gun control measures.
Thomas defined “historical tradition” as being rooted in measures in effect when the Second Amendment was ratified in 1791, or even when the 14th Amendment was ratified in 1868. That amendment states that state laws cannot override federal laws.
While modern gun restrictions don’t need an exact historical “twin,” they must be proven analogous to a past restriction, Thomas wrote, though he did not clearly specify the time period from which that analogy should be found.
Nevertheless, the ruling has led lawyers to sift through centuries of US and UK law to find similar measures that restricted guns.
In some cases, gun control advocates have pointed out ban on billy clubs or other atypical weapons. In other cases, they are forced to refer to racist laws showing that the U.S. has historically withheld gun ownership from groups considered dangerous, including free black people, indigenous groups, and Catholics.
The problem is that “we’re not even talking about historical regulation from a century ago,” says Eric Ruben, an assistant professor at Southern Methodist University’s Dedman School of Law.
“They are too recent. The Supreme Court said the historical rules that must now be brought forward to justify the constitutionality of a modern gun law date back to the late 18th or perhaps the 19th century,” he told Al Jazeera.
“The government and litigants and courts are struggling to analogize those historical prescriptions from a very different time with very different problems and very different technology than the modern day.”
‘Unfortunately and terribly dangerous’
In the eight months immediately after the verdict, an analysis Jacob Charles, an associate professor at the Pepperdine Caruso School of Law, found that 212 claims had been heard by U.S. courts challenging pre-existing gun restrictions based on Bruen.
In at least 31 of the claims, the court ruled in favor of the challenger. Those cases include successful claims against requirements for permits to carry guns, assault weapons bans and bans on so-called untraceable “ghost weapons,” the report found.
Most recently, pro-gun groups quoted the Bruen ruling in an urgent appeal to the Supreme Court, seeking to block Illinois’ recently enacted ban on assault-style firearms and large-capacity magazines. They argued that there is “no historical analogue to such a ban”. However, a lower court previously ruled that the ban fits “with the history of firearms regulation”.
If the conservative-dominated Supreme Court takes the case, its ruling could have far-reaching implications for the future of such bans.
Meanwhile, there was particular controversy surrounding a February ruling by the Fifth Circuit District Court, which struck down a federal law that prevented individuals accused of domestic violence and subject to protective orders from carrying a weapon.
President Joe Biden’s administration has petitioned the Supreme Court to hear the case, contradicting several other rulings, though the top courts have yet to announce whether they will.
But the prevailing ambiguity puts survivors of domestic violence at risk, according to Marium Durrani, vice president of policy at the National Domestic Violence Hotline.
In Mississippi, for example, she noted that even in domestic violence cases where a protection order has been issued, the “person who harmed you no longer has to surrender their firearm. It is no longer illegal for them to possess their firearm.” .
“What’s really unfortunate and terribly dangerous is when survivors end their abusive relationship or take steps to end the abusive relationship to protect themselves, that’s the most dangerous time and one of the highest times for murder,” Durrani explained.
Hotline data showed a 56.6 percent increase in calls citing firearms in the states subject to the Fifth Circuit Court – Mississippi, Louisiana and Texas – between February 2 and March 9, compared to the same period last year.
“While we recognize that correlation is not causation, these numbers are certainly suggestive and downright alarming,” Durrani said.
Domestic violence has also been shown to play a disproportionate role in mass shootings. One study from 2021 found that nearly 60 percent of shootings that killed four or more between 2014 and 2019 were related to domestic violence.
‘Downstream consequences’
Legal strife has raged since the Supreme Court ruling in Bruen, said Ruben, a professor of law at Southern Methodist University.
As with domestic violence restrictions, other gun control measures are subject to conflicting rulings from federal courts across the country, Ruben explains. They include age limits for carrying guns, a ban that would prevent people under federal indictment from acquiring a gun, restrictions on high-capacity magazines, and a measure that would prohibit the possession of firearms with altered serial numbers.
Ruben said more clarity is needed from the Supreme Court to clarify the full implications of the Bruen ruling. But meanwhile he warned of possible “downstream consequences”. For example, legislators may be discouraged from pursuing restrictions they fear will soon be lifted.
Everytown’s Suplina, for his part, said lawmakers have largely not “cold into inaction” and are pushing ahead with ambitious reforms in many states. He added that he believes many gun restrictions will remain after the Bruen ruling.
“We are convinced that the Supreme Court did not intend to give a limitless interpretation of the Second Amendment in the Bruen case. We hope it takes the opportunity to make that clear to lower court judges across the country,” he said.
Doug Letter, chief legal officer at the gun control organization Brady, also said he was optimistic about the prospect of proving that gun regulations are part of a historic American tradition.
In an email, he said that “the current moment is an opportunity for governments to pass constitutional, lifesaving gun laws consistent with Supreme Court decisions in Heller and Bruen.”
“It is imperative that governments do this. Many lives depend on it.”