The sun rises behind U.S. Supreme Court building on August 27, 2021 in Washington, DC. (Anna Moneymaker/Getty Images/TNS)
Once again a mass shooting is in the headlines — this time in Nashville, with three children among the six victims. This latest horrific tragedy is prompting renewed calls for gun reform, but what most Americans don’t know is that a different kind of gun revolution is already underway.
Over the past few months, the federal courts have waged an unprecedented attack on U.S. gun safety laws. Spurred by the Supreme Court, judges have declared dozens of mainstream, widely accepted restrictions on firearms unconstitutional.
Even a partial list of the laws struck down or enjoined is startling: bans on possession of firearms by domestic abusers; bans on guns in churches, hospitals and bars; prohibitions on firearms in the hands of people charged with felonies; restrictions on 18-to-20-year-olds carrying weapons; prohibitions on loaded guns in vehicles; and bans on guns with obliterated serial numbers.
This tidal wave of rulings began with a decision by the Supreme Court last year. The justices struck down New York’s 100-year-old restrictions on who could obtain a license to carry a concealed firearm and established a new test for courts to apply in all Second Amendment cases. Many modern gun laws have been unable to survive it.
A high court majority, led by Justice Clarence Thomas, said that gun laws today must be consistent with the gun laws of the 1700s and 1800s. Thomas’ rationale was grounded in originalism: Laws from 100 or 200 years ago reflected the original understanding of the Second Amendment and the 14th Amendment, so they set the boundaries on what is constitutional.
The predictable result has been the demise of 20th century laws for 20th (and 21st) century reality. Take the federal ban on the possession of firearms by domestic abusers, which dated back a few decades. In voiding it, a judge in Texas explained that “glaringly absent from the historical record — from colonial times until 1994 — are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.” The fact that spousal abuse was often permitted by law in the 18th and 19th centuries didn’t matter.
Similar reasoning has been applied in cases from Oklahoma to New York. In striking down the ban on firearms whose serial numbers have been removed, a judge argued that since Congress first mandated serial numbers on firearms in 1968, there was no longstanding historical tradition of such laws. Because we did not ban guns on public transportation in the 1800s, another court said that a ban in airports and on buses was unconstitutional. Bans on guns in bars or hospitals? Again, no such laws existed back in the day, so such laws are impermissible infringements of the Second Amendment now.
Today’s problems of gun violence are vastly different from those of the past. Prior to 1900s, cities were much smaller with much less urban gun crime. We recognize suicide today as a more serious problem than we did in the past. Early Americans didn’t even conceptualize mental illness the way we do, much less bar mentally ill people from possessing weapons.
The court must also make clear that a gun law’s effectiveness — not just its historical pedigree — matters. “Certainly, the usefulness of serial numbers in solving gun crimes makes [such a law] desirable for our society,” explained one judge. “But the Supreme Court no longer permits such an analysis.”
So long as the Supreme Court insists that we combat the current problems with old, outdated tools, we will not be able to reduce gun violence. Indeed, if the justices do not act soon, there may be few gun laws left that even try.
Adam Winkler is a professor at UCLA School of Law and the author of “Gun Fight: The Battle Over the Right to Bear Arms in America.” ©2023 Los Angeles Times. Distributed by Tribune Content Agency.
Originally published at Adam Winkler