Opinion: Federal courts are waging an unprecedented attack on U.S. gun safety laws

A mass shooting is making headlines once again – this time in Nashville, with three children among the six victims. This recent terrible 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.

In recent months, the federal courts have launched an unprecedented assault on US gun safety laws. Spurred on by the Supreme Court, judges have declared dozens of commonly accepted gun restrictions unconstitutional.

Even a partial list of the laws that have been struck down or mandated is chilling: bans on domestic violence firearm ownership; gun bans in churches, hospitals and bars; bans on firearms in the hands of persons charged with crimes; restrictions on 18-20 year olds carrying guns; bans on loaded weapons in vehicles; and bans on guns with defaced serial numbers.

This tidal wave of judgments began with a Supreme Court decision last year. The judges lifted 100-year-old New York City restrictions on who could get a license to carry a concealed firearm and introduced a new test for courts to request all 2. Change Cases. Many modern gun laws have not survived.

A Supreme Court majority, led by Justice Clarence Thomas, said gun laws today must be consistent with gun laws of the 17th and 18th centuries. Thomas’ reasoning was based on originalism: Laws from 100 or 200 years ago reflected the original understanding of the 2nd Amendment (passed in 1791) and the 14th Amendment (which extended gun rights to the states in 1868), so they set the boundaries what is constitutional.

The predictable result was the demise of 20th-century law to 20th (and 21st) century reality. Take the federal ban on firearm possession by domestic abusers, which dates back a few decades. In the overturning, a Texas judge stated that “the historical record — from the colonial era to 1994 — lacks consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.” The fact that spousal abuse was often permitted played no role by law in the 18th and 19th centuries.

Similar considerations have been made in cases from Oklahoma to New York. In overturning the ban on firearms that had serial numbers removed, a judge argued that there had not been a long historical tradition of such laws since Congress first mandated serial numbers on firearms in 1968. Since we hadn’t banned guns on public transportation in the 19th century, another court ruled that banning them in airports and on buses was unconstitutional. Gun bans in pubs or hospitals? Again, there were no such laws at the time, so such laws are now illegal violations of the 2nd Amendment.

Even when attorneys in court present evidence of previous gun laws that are similar to those being challenged, judges have knotted themselves to deny the similarity.

Although Texas has historically banned guns in “educational, literary, and scientific” institutions, today that cannot justify a law banning guns in libraries and museums. Texas, a court said, was an outlier in restricting guns in this way. In a case involving guns in churches, a judge overturned several early American laws banning guns in places of worship because, despite existing laws, there was no evidence that they had been consistently enforced in practice.

Some of these decisions could be seen as reflecting the extremism of a handful of lower court judges appointed by Donald Trump. In fact, many of the cases in which gun laws have been declared unconstitutional have been decided by federal district judges appointed by the former president.

Still, the attack on gun safety laws is better understood as the result of another group of Trump-appointed justices: Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all of whom were known to previously have had strong pro-gun views You have been nominated. As a lower court judge, Kavanaugh said bans on assault weapons were unconstitutional, and Barrett voted to lift the lifetime ban on felons owning firearms.

Barrett’s arrival as the last of Trump’s nominees was crucial. By then, the Supreme Court had allowed reasonable restrictions that improved public safety, despite finding in 2008 that there is an individual right to bear arms.

But just six months after Barrett took the oath of office, the court decided to hear the New York tote. All of Trump’s nominees, plus John Roberts and Samuel Alito, echoed Thomas’s belief in establishing the new history-based test for Second Amendment cases.

It is possible that some of the recent gun decisions will be overturned on appeal. But the lower court decisions we’ve seen are, by and large, not fancy applications of the Supreme Court test. In the dismissal of a charge of illegal gun possession by a defendant accused of a felony, a US District Court judge in Indiana, a Reagan-appointed representative, expressed dismay at the outcome.

“This Opinion was written in the earnest hope that its draftsman misunderstood the Supreme Court decision. “If not,” the judge frankly warned, “most of the laws that Congress has developed to protect both public safety and the right to bear arms could be unconstitutional.”

What gun laws are next? In fact, many of the most important and effective gun laws we have have no precedent from the 18th or 19th centuries. For example, laws banning convicted felons from owning guns, requiring background checks when purchasing guns, and restricting access to firearms for people with mental illness are all modern innovations. Not surprisingly, before there were easily portable machine guns, first introduced in the 1910s, there were no laws banning people from owning such weapons.

The Supreme Court must soon take another 2nd Amendment case — abandoning or significantly revising its stupid history-based test. Today’s gun violence problems differ significantly from those of the past. Before 1900, cities were much smaller with much less urban gun crime. We now recognize suicide as a more serious problem than in the past. Early Americans didn’t even conceptualize mental illness the way we do, let alone allow the mentally ill to own guns.

The court must also make it clear that the effectiveness of a gun law—not just its historical origin—is important. “Sure accounts for the usefulness of serial numbers in solving gun crimes [such a law] desirable for our society,” declared one judge. “But the Supreme Court no longer allows such an analysis.”

Meanwhile, gun violence in America is on the rise. According to the Centers for Disease Control and Prevention, more Americans died from gun injuries in 2020 than any other year on record. Firearm homicides increased by 35% in the same year and have continued to increase since then. And the scourge of mass shootings continues; According to the Gun Violence Archive, Nashville was 129th since January (the archive has since added two more to its list).

As long as the Supreme Court insists that we fight these current problems with old, outdated tools, we will not be able to reduce gun violence. In fact, if justice doesn’t act soon, there may be few gun laws left that will even try.

Adam Winkler is a UCLA School of Law professor and author of Gun Fight: The Battle Over the Right to Bear Arms in America.