The Supreme Court Is Set to Make America’s Gun Death Epidemic Worse

David S. Cohen
·5 min read

Since January 1st, there have been 160 shootings in which four or more people were injured or killed. In the same period to start 2020, there were just 90. This rate is almost double the beginning-of-the-year average since 2014. The stretch from March 16th to April 15th was especially gruesome, seeing 45 mass shootings, starting with the eight people killed at three Atlanta-area spas and ending with the eight people killed (and several others injured) at an Indianapolis FedEx facility. The epidemic of gun violence in this country continues unabated.

While President Biden has taken modest steps to address what he calls the “international embarrassment” of gun violence in this country, and Congress does nothing because of Republican intransigence and the Senate filibuster, this week the Supreme Court stepped into the fray. But rather than do anything to limit further gun violence, the conservative court took a major step in the opposite direction — one that will lead to increased gun violence in the future.

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It’s been a long time since the Supreme Court has ruled on gun rights. In 2008 and 2010, the Court issued two rulings that radically changed the Second Amendment in this country. In those two cases, the court held that the Constitution protects an individual’s right to own a gun for self-defense at home. For decades prior to those rulings, the Second Amendment was largely seen as allowing for reasonable restrictions on gun ownership. With these two cases, the Court signaled that it was ushering in a new era of striking down gun control laws.

However, that new era never really came. Since 2010, the Supreme Court has completely dodged cases that raise issues of just how far the Second Amendment goes. For instance, can states restrict people from owning assault weapons, ban 18- to 20-year olds from owning guns, limit concealed carry permits for weapons outside of the home, and forbid high-capacity magazines? Lower courts have, for the most part, answered these questions in the affirmative and upheld these state regulations, distinguishing them from the Supreme Court’s two most recent decisions by saying that these restrictions present different issues than bans on personal-use handguns. These cases are almost always appealed to the Supreme Court, but time and time again, it has refused to weigh in on the issues, frustrating conservatives who want the court to clearly protect a near-absolute Second Amendment right.

That is, until Monday. Earlier this week, the Supreme Court announced that it was going to take up the case of a New York law that severely restricts concealed-carry permits. The case won’t be argued until the fall with a likely decision not until June 2022. But most people think that it’s pretty clear what the court is going to do — announce a broad right to carry guns for self-defense outside the home and concealed from others.

The reason most people are confident in the outcome of the case is because of Justice Amy Coney Barrett’s presence on the Court. Barrett just replaced Justice Ruth Bader Ginsburg in the fall, but it hasn’t taken long for her to have an impact on the country. In a series of rulings, she has provided the pivotal fifth vote to strike down Covid-19 restrictions because they failed to have exemptions for religious practice. These rulings seem to be the beginning of a revolution in freedom of religion law, one that will likely allow religious people to opt out of many generally-applicable laws just by saying “but I’m religious, so I don’t have to.”

The court’s decision to hear the concealed-carry case is a sign that the next major area Barrett will make her mark is the Second Amendment. Supreme Court math explains this. It takes five votes to decide a case on the nine-Justice court, but only four votes for the court to agree to hear a case. Thus, sometimes when Justices cast votes on whether to take a case, they think about whether they can get a fifth vote in their favor. After all, four Justices voting to hear a case without a fifth to go along with how they ultimately want to decide the case will mean a win for the other side.

The votes to take a case are not public, so what follows is merely informed speculation, but most people believe that the court avoided Second Amendment cases for the past decade because the court’s four most conservative members (before Justice Barrett joined the Court, that would be Justices Thomas, Alito, Kavanaugh, and Gorsuch) did not have a fifth vote to rule in favor of a Second Amendment right in these new cases. However, now that Justice Barrett is on the Court, it has taken the first gun case to come its way. Presumably, the change is because the Court’s conservatives now believe (or even know) that she will provide the fifth vote to find that the Constitution protects the right to have a concealed-carry permit.

Of course, the future is ultimately unknowable, so it’s certainly theoretically possible something happens that changes this prediction. However, there’s no reason at this time to believe anything other than that, come next summer, the Supreme Court is going to strike down all restrictions on concealed-carry gun permits and give its blessing to more and more people carrying guns in public.

In other words, while the country weeps over the ongoing escalation of gun violence, the Supreme Court is on the verge of making it worse. Gun violence crisis? What gun violence crisis?!

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