The recent election results that brought both houses of the Michigan state legislature into alignment with the governor are generating expectations about the prospects for common sense gun safety laws after years of blockades against such laws. When projecting likely legislative action early in 2023, a Detroit Free Press writer included such gun safety proposals as requirements for safe storage of firearms, expanded background checks, and a law to permit temporary removal of firearms from people who pose a risk of harm to themselves or others (Boucher, 2022). Certainly, there is good reason to hope that gun safety proposals will receive serious discussion and consideration rather than face the persistent blockade that prevented any committee hearings on such proposals in recent years.
There are ominous developments elsewhere concerning gun safety about which Michiganders should be aware, and I don’t just mean the continuous perpetration of horrific events, such as the mass shooting on November 19th that apparently targeted members of the LGBTQ community in Colorado Springs (Levenson and Rose, 2022). I am talking about the expanding consequences of the U.S. Supreme Court’s June 2022 decision in New York Rifle & Pistol Association v. Bruen.
In the Bruen decision, a 6-to-3 majority, comprised of three dedicated conservatives (Chief Justice John Roberts and Justice Clarence Thomas and Samuel Alito) and the three deeply conservative justices appointed during the Trump administration (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) invalidated a New York statute that required applicants for gun-carry permits to provide a reason for their need to carry a gun. This is the same majority that overturned Roe v. Wade (Dobbs v. Jackson Women’s Health Organization, 2022), declared that violations of Miranda rights will no longer be considered as violations of the Constitution (Vega v. Tekoh, 2022), and limited the authority of the Environmental Protection Agency to address air pollution and climate change (West Virginia v. EPA, 2022).
On its face, the Bruen decision merely required a half dozen restrictive states to issue gun-carry permits in the same way as other states like Michigan. Most states issue permits to people who meet the state requirements, such as training and background checks, without an additional requirement of giving any reason for wanting to carry a gun. In separate concurring opinions, Justices Alito and Kavanaugh (joined by Chief Justice Roberts) disingenuously feigned anticipatory surprise that anyone could object to the decision’s very modest expansion of Second Amendment rights. They claimed the decision merely involved requiring a small number of states to join the rest of the states in issuing gun-carry permits to otherwise qualified individuals. However, within Justice Thomas’s majority opinion, joined by all three of the foregoing justices, lurked an instruction to lower courts that potentially invites the elimination of many—and perhaps most–kinds of gun safety laws (Marcus, 2022a; Marcus, 2022b).
According to the reasoning of Justice Thomas’s majority opinion, when examining gun laws that have been challenged as violating the Second Amendment, lower court judges should no longer consider the state and federal governments’ justifications for such laws, which usually concern public safety. Instead, without regard for considerations of public safety, lower court judges should look solely at whether the challenged gun safety laws are “consistent with the Nation’s historical tradition.” In other words, if the judges cannot identify an analogous gun regulation in existence around 1868 (at the time of the 14th Amendment’s enactment and application of rights against the states) or around 1791 (at the time of ratification of the Second Amendment), then the law is impermissible. As noted in the immediate aftermath of the decision in an analysis published by the League of Women Voters, the Supreme Court’s approach does not in any way take account of the fact that modern weapons are significantly more lethal than those in civilian hands in 1868 and 1791:
This test seemingly only applies to the actual regulation itself, while not considering that the weapons being regulated have evolved from muskets to semi-automatic weapons since the days of the historical backdrop the Court uses in its analysis. Under this reasoning, the guns being regulated continue to evolve, but the regulations on those guns cannot. (League of Women Voters, 2022).
The types of laws that the Supreme Court majority used as examples of permissible laws justified by historical analogy are laws that prohibit civilian-carried firearms in “sensitive places,” specifically government buildings, schools, and polling places. At the risk of seeming cynical, it is hard to avoid noting that it is quite predictable that the justices would make sure that no guns are allowed in their government building even as their new test will likely expose their fellow citizens to guns in many more places.
In a dissenting opinion, Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, questioned this reliance on long ago history in a very different society to dictate current law and noted that history is not clear on all of these matters anyway. Indeed, Breyer observed that judges who claim to rely on history tend to select the version of history that supports their policy preferences. More than forty years ago, the late Justice William Brennan argued that “arrogance cloaked as humility” is evident among those who claim that judges can avoid using their own values and policy preferences by faithfully following the historical intentions of those who wrote the Constitution (Brennan, 1985). It is arrogant for any contemporary individual to claim to know just what specific officials in prior centuries intended, especially when that claim is applied to purported eighteenth- and nineteenth-century intentions about technology, such as semi-automatic weapons, that those in prior centuries never could have imagined. Brennan accurately noted that contemporary judges cannot know with certainty the intentions of those who wrote constitutional words centuries ago. In the Bruen case, Justice Breyer’s dissent also noted that few gun safety laws can survive if evaluated solely on whether analogous laws existed at specific points in time in prior centuries. Background checks? Safe storage law? Waiting periods on gun purchases? What can survive this historical analysis?
- Blocking New York’s efforts to prohibit civilian-carried firearms in subways, summer camps, Times Square, sports and concert venues, and mental health facilities
- Striking down a prohibition on a Texas man buying a gun while under indictment and facing felony charges
- Blocking enforcement of Delaware’s ban on homemade, untraceable “ghost guns” that do not have serial numbers
- Striking down a West Virginia law that prohibited removing serial numbers from guns.
Two opinionated observations: First, I think some of the justices in the majority in the Bruen case did not fully consider the implications of the reasoning that they endorsed. For example, Justice Barrett, during oral arguments, voiced the view that it would be a bad idea to permit people to carry guns in Times Square when a million people gather there on New Year’s Eve (Fung, 2021). Yet, it was only a few short months after she signed on to this decision that a lower court judge in New York blocked the prohibition on civilian-carried firearms in Times Square because no such law existed in 1868. Will some of these six justices realize that they have opened a Pandora’s box that poses danger to the public? While these six justices in the Bruen majority never show much inclination to admit to making errors, perhaps there is a faint hope that two of them will join with the three dissenters to form a new majority in a future case to “clarify” the law in a manner that may provide better protection for public safety. We’ll have to wait and see. Second, Michigan’s legislators need to move forward with gun safety laws that they see as beneficial to the public. The legal battles over gun laws have intensified but our legislators should not be deterred from acting while these issues are worked out over the next few years in lawsuits around the country.
If we finally see the enactment of gun safety laws in 2023, that will be a tribute to the numerous Michiganders who have worked so hard for so many years to reduce the needless risks and harms of our state’s weak gun laws. Yet, in our contemporary political moment, we must be aware that those interests determined to spread unregulated firearms to as many places as possible now have an especially powerful—and misguided—ally in the Supreme Court’s new six-member conservative super majority.
Christopher E. Smith, J.D., Ph.D.
MCPGV Board President
Dave Boucher, “Gov. Whitmer, State Democratic Lawmakers to Push for these Policies Next Session,” Detroit Free Press, November 13, 2022 (freep.com)
William J. Brennan, Jr., “The Constitution of the United States: Contemporary Ratification,” speech delivered at Georgetown University, October 12, 1985, reprinted in David M. O’Brien (ed.), Judges on Judging, Chatham, NJ: Chatham House Publishing (1997), pp. 200-210.
Katherine Fung, “Kagan, Barrett Question Whether Times Square, Colleges in New York Could Allow Gun Bans,” Newsweek, November 3, 2021 (newsweek.com)
League of Women Voters, “Understanding the Supreme Court’s Gun Control Decision in NYSRPA v. Bruen, LWV blog, July 12, 2022 (lwv.org/blog)
Eric Levenson and Andy Rose, “Mass Shooting at LGBTQ Nightclub in Colorado Springs Leaves at Least 5 Dead, 18 Wounded,” CNN, November 20, 2022 (cnn.com).
Ruth Marcus, “Conservative Judges’ New Gun-Law Rulings Show ‘Originalism’ Beyond Parody,” Washington Post, October 10, 2022 (washingtonpost.com)
Ruth Marcus, “On Guns, Originalism as Insanity,” Washington Post, November 17, 2022 (washingtonpost.com)