Jun 28, 2022

SCOTUS's gun control ruling.

SCOTUS's gun control ruling.

The court struck down a New York law.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 14 minutes.

We're covering the Supreme Court ruling on New York's gun law. Plus, a question about statistics in politics.

Image: Lyle / Flickr
Image: Lyle / Flickr

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On Friday, we published a subscribers-only transcript of an interview with Clementine Morrigan, a self-described leftist, socialist and abolitionist who also happens to be one of the most vehement critics of the left I've encountered online. Morrigan talked to me about why she spends so much time criticizing cancel culture and "social justice" leftism.

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You can read the interview (if you subscribe) by clicking here.


Quick hits.

  1. In its latest push for more accommodation of religion in public spaces, the Supreme Court ruled 6-3 that a former high school football coach had a right to pray at midfield after games. (The ruling and our coverage of this case)
  2. Anti-abortion trigger laws in Utah and Louisiana were temporarily blocked by state courts. Lawsuits against other trigger laws are being filed across the country in hopes of preventing them from going into effect. (The block)
  3. A Russian court set the trial date for WNBA star Brittney Griner for July 1. (The trial)
  4. The Jan. 6 committee called for a surprise hearing on Tuesday at 1:00 p.m. EDT to review new evidence. (The hearing)
  5. 48 people were found dead inside an abandoned trailer in San Antonio, Texas. Officials believe the group were migrants who had been smuggled across the Texas-Mexico border. (The tragedy)
  6. BONUS: Colorado, Illinois, Mississippi, New York, Oklahoma, South Carolina and Utah have primary elections today. Nebraska will hold a special election. (The elections)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

The Supreme Court's gun control ruling. On Thursday, the Supreme Court struck down a law in New York that required anyone who wanted to carry a handgun in public to show a “special need for self protection.”

The law at the center of New York State Rifle & Pistol Association v. Bruen required anyone who wanted to publicly carry a handgun to show “proper cause” for the license. A desire to protect themselves or their property was insufficient; an applicant had to demonstrate a “special need” for self-defense, like a pattern of physical threats. The court struck the law down in a 6-3 vote along ideological lines, with all liberal justices dissenting.

Several other states — including California, Hawaii, Maryland, Massachusetts, and New Jersey — have similar restrictions, as do many large cities.

Lower courts had upheld the law and similar gun-control measures with a two-part test that looked at whether a restriction regulated conduct protected by the original scope of the Second Amendment and if that restriction was fine-tuned enough to advance a significant public interest.

Clarence Thomas, who wrote the opinion for the majority, instead argued that the government has to demonstrate a regulation is consistent with the historical understanding of the Second Amendment. Applying that standard, Thomas wrote that the challengers’ desire to carry a weapon in public for self-defense fell squarely within the kinds of conduct protected by the Second Amendment, arguing that the text does not distinguish between carrying guns at home and carrying guns in public.

"Indeed, he suggested, the Second Amendment’s reference to the right to 'bear' arms most naturally refers to the right to carry a gun outside the home," SCOTUSblog reported. "After reviewing nearly seven centuries’ worth of historical sources, beginning in the 1200s and going through the early 1900s, Thomas concluded that although U.S. history has at times placed some 'well-defined restrictions' on the right to carry firearms in public, there was no tradition of a broad prohibition on carrying commonly used guns in public for self-defense. And with rare exceptions, Thomas added, there was no historical requirement that law-abiding citizens show the kind of special need for self-defense required by the New York law to carry a gun in public."

Thomas added that there is “no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

Thomas left open the possibility that states can regulate firearms in sensitive areas, conceding there was historical precedent for such regulations, but said that urban areas did not qualify. Chief Justice John Roberts and Justice Brett Kavanaugh joined the majority but in a concurring opinion argued the ruling was rather limited in scope, insisting states could still regulate gun ownership through a breadth of other requirements including more objective schemes like background checks and mandatory training.

Justice Stephen Breyer, joined by Elena Kagan and Sonia Sotomayor, argued in a dissenting opinion that the question before the court was how much the Second Amendment could limit the state and federal government from finding solutions to gun violence through the democratic process. Breyer criticized the court for prohibiting an evidentiary record of how the law actually worked in practice "without considering the State’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision."

The court's ruling came just two days before President Biden signed a gun control bill that will make it harder for juveniles to get firearms, add money for mental health funding and create incentives for states to pass red flag laws.

We covered that bill here.

Below, we'll take a look at some arguments from the left and right, then my take.


What the left is saying.

  • The left criticized the ruling, saying it will make New York far less safe.
  • Some say Thomas's new tests for laws are impractical and inconsistent.
  • Others argued that the result could be a flood of new guns into people’s hands.

The New York Times editorial board said SCOTUS is putting guns "above human life."

"The Supreme Court this week embraced a vision of the Second Amendment that is profoundly at odds with precedent and the dangers that American communities face today, upending the longstanding practice of letting states decide for themselves how to regulate gun possession in public," the board wrote. "Gun enthusiasts and gun manufacturers have long sought a ruling like the one the court delivered on Thursday: Its decision in the case, New York State Rifle & Pistol Association v. Bruen, is an assertion that the Second Amendment trumps reasonable efforts to protect public safety. The United States as it exists today — awash in insufficiently regulated, high-powered weapons and afflicted by staggeringly high rates of gun homicide and suicide — is the society that their preferred policies have created. The best that gun control advocates can hope for after the Bruen ruling is what Congress passed: gradual legislative tinkering.

"In its 6-to-3 ruling, the supermajority of Republican-appointed justices struck down a century-old New York law that placed strict limits on handguns," the board wrote. "But the decision will also affect similar laws in New Jersey, Massachusetts, Maryland, Hawaii and California. Many of those are states with some of the lowest rates of gun deaths in the country. Extensive research has shown that strict regulation of guns leads to fewer deaths. Relying on a highly selective reading of history, Justice Clarence Thomas wrote in his majority opinion that these gun restrictions violate the court’s new interpretation of the Second Amendment. (It was only in 2008, with its decision in District of Columbia v. Heller, that conservatives on the court divined an individual right to bear arms hidden somewhere in the 27 words of the Second Amendment.)"

In The Washington Post, George F. Will called it a serious misfire.

"The Second Amendment is the only one in the Bill of Rights with a preamble: 'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' The amendment was 217 years old before the court held that it protected the gun rights of individuals, irrespective of membership in a militia," Will wrote. "The 2008 case affirmed the right of individuals to 'keep' an operative firearm in the home for self-defense. What, however, about the right to 'bear' firearms outside the home? The 2008 court insisted that this right is, like other constitutional rights, 'not unlimited,' and is compatible with 'longstanding regulatory measures,' such as forbidding firearms in sensitive places.

"In 1897, the Supreme Court had said it was 'well-recognized' that the right to 'bear arms' is not infringed by laws prohibiting the carrying of concealed weapons.' Today, most states, including almost all that filed briefs supporting New York, have multiple restrictions forbidding concealed carry at schools, government buildings, bars, amusement parks, churches, athletic events, polling places, etc," Will said. "On Thursday, the court perhaps did not invalidate most such restrictions, but it condemned itself to years of judicial hairsplitting in search of a principle about balancing judgments."

In Vox, Ian Millhiser said the ruling means "virtually no gun regulation is safe."

"It massively expands the scope of the Second Amendment, abandons more than a decade of case law governing which gun laws are permitted by the Constitution, and replaces this case law with a new legal framework that, as Justice Stephen Breyer writes in dissent, 'imposes a task on the lower courts that judges cannot easily accomplish,'" he wrote. "The immediate impact of Bruen is that handguns — which are responsible for the overwhelming majority of gun murders in the United States — are likely to proliferate on many American streets. That’s because Bruen strikes the types of laws that limit who can legally carry handguns in public, holding that 'the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.'

"Writing solely for the Court’s Republican appointees, Justice Clarence Thomas strikes down New York’s century-old law," Millhiser wrote. "He also establishes a whole new (confusing) framework for evaluating gun control laws. Bruen establishes a “text, history, and tradition test” that purports to be rooted in, well, the text of the Constitution, and the history of English and early American gun laws. In reality, however, Thomas’s new test takes extraordinary liberties with the text of the Second Amendment, which explicitly states that the purpose of the right to bear arms is to protect service in a militia."


What the right is saying.

  • The right mostly supports the ruling, arguing that it is more limited than the left claims.
  • Some say the law clearly created too large of a burden.
  • Others criticize the ruling, saying it may make New Yorkers less safe.

In Fox News, Amy Swearer wrote to New Yorkers to say "there is, indeed, a Second Amendment to the U.S. Constitution, and that it does, in fact, protect a right of the people (not just 'special' people) to bear arms in public for self-defense."

"I know this news shocked many of you, since you’ve long-lived under a regime that routinely conflates lawful gun owners with criminals," she wrote. "Constitutional rights can be scary, especially when you don’t understand them or don’t particularly like them. Your state and local government officials have spent months preemptively warning you that this day would destroy all of their efforts to keep you safe, as though ordinary, law-abiding gun owners in New York were the real problem plaguing your streets... First, let’s be realistic. Your state is not suddenly going to adopt permit-less carry (though most states have now eliminated carry permits and are doing just fine — have you seen New Hampshire and Vermont? Your permit-less carry neighbors to the east have annual homicide rates that hover near 'zero.')

"Your legislators have already spent this session drafting bills that would make even the most restrictive of current 'shall issue' states seem like the Wild West by comparison," Swearer said. "They will do everything possible to ensure that as many gun owners as possible are priced out, regulated out, or scared out of exercising their Second Amendment rights in public. Your government will, at best, begrudgingly adopt a Washington, D.C.-style permitting framework, where gun owners will spend hundreds of dollars and many months jumping through a Kafkaesque bureaucratic nightmare for their carry permits. Even then, they’ll have to plan their entire daily schedule around burdensome and irrational laws restricting where they can carry their firearms."

In The Washington Post, Henry Olsen said it was a reasonable decision with "limited scope."

"The New York state law that the court struck down required a person to show 'special need' to obtain a license to carry a handgun in public for the purpose of self-defense," Olsen said. "The court’s six-member majority held that the Second Amendment protects the individual right to bear arms as well as to keep them. For all of the caterwauling about the parade of horribles that this ruling allegedly will unleash, the only thing the court did was this: hold as unconstitutional laws, like New York’s, that effectively deny most gun owners the right to legally bear their arms publicly (five other states, and Washington, D.C., have similar laws). That’s it, that’s the holding, as Justice Samuel A. Alito Jr. notes in his concurring opinion.

"That relatively limited ruling leaves open a wide array of potential regulations and laws to limit the use of guns and even the ownership of some types of weapons," he added. "The majority explicitly notes that laws requiring a gun owner to show that he or she meets certain criteria to be permitted to carry a handgun in public are permissible. Justice Brett M. Kavanaugh’s concurring opinion in Bruen notes that these laws, which are presumptively constitutional, can include requirements the applicant 'undergo fingerprinting, a background check, a mental health records check, and training in firearms handling,' among other requirements. Those are pretty hefty requirements, yet all can be constitutionally imposed even after Thursday’s ruling to ensure the person who carries a handgun outside the home does so responsibly."

Meanwhile, the New York Post editorial board criticized the ruling.

"Second Amendment absolutists will cheer," they wrote. "But there’s a hideous irony in the fact that this case emanated from New York, which is currently suffering from a rash of gun crimes (admittedly, aggravated by terrible 'criminal justice' policy). The ruling contained some hopeful news. It explicitly says New York can set up a licensing regime for carry permits, as many other states have done, including criminal background and mental health checks and mandatory safety training. It also contains language that might make room for restrictions on, say, bringing a gun on the subway (even if you have a permit).

"Yet the decision also suggests such rules must not be too strict or they might become subject to legal challenges as well," the board said. "That’s troubling. Look: New York City is not Texas. Here, public safety is enhanced by fewer guns flooding the streets. A 'good guy with a gun' can very easily become a 'killer of an innocent bystander' if a street confrontation turns into a shooting war. Mayor Eric Adams is already fretting about how to ensure the city won’t become, as he put it, 'the Wild Wild West' and promising to work 'to limit the risk this decision will create.' ... It won’t be easy: After all, the ruling could turn the NYPD’s already formidable job into an utter nightmare. Cops will have to presume with even more certainty than now that everyone they interact with is armed, raising the stakes unimaginably."


My take.

This is our third Supreme Court ruling in the last week, so by now you know my criteria: I like to evaluate the ruling itself (was it legally sound?), the impact (what does it immediately do?) and the unintended consequences (what might come of it?).

On the actual ruling itself, this one is by far the hardest of the last three for me to square. The motivated reasoning seems more obvious in this ruling than in either of the other recent ones we've covered. Even if you have little or no understanding of constitutional law and the history of Second Amendment rulings, the logical fallacies seem rather obvious to me.

For starters, the New York law is 109 years old. The law itself is proof of a deeply rooted history of regulating concealed firearms in New York. The text of the Second Amendment is the only text with a preamble (that is, an explanation of why it exists). That explanation is clear, too: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court expanded this definition in 2008, but the idea that the text restricts states from constraining concealed carry of handguns (which didn't exist when the constitution was written) strains credulity, to say the least.

In order to reach his conclusion, Thomas cherry-picks only the history that supports his position.

For instance, he says that if a regulation addresses a societal problem that persisted in the 18th century, there must be a distinctly similar regulation from the 18th century, otherwise the challenged regulation is inconsistent with the Second Amendment. Recognizing the problem this creates (which is, simply, that our modern weapons didn’t exist then), Thomas creates a workaround for weapons (like handguns) that were not popular in the 18th century by saying "unusual weapons" can still be banned. He instead argues that the Second Amendment protects weapons that are in common use, so laws that applied to muskets in the 1700s would become the standard for laws that apply to handguns now.

As Justice Breyer wrote, creating this test is "deeply impractical" because judges are ill-equipped to do a multi-century historical reckoning to decide if a law is justified by historical precedent. The evidence for this rests precisely in how Justice Thomas conducted his survey of American history, in which he ignored all the history that undermines his position (like, say, a 1786 Virginia law that prohibited people from going “armed by night nor by day, in fairs or markets, or in other places, in terror of the Country”) while elevating all the history that supports it.

Again, this is self-evident. Thomas, for instance, wrote that the government must demonstrate a law "is consistent with this Nation’s historical tradition of firearm regulation.” But New York's law is the nation's historical tradition of firearm regulation. It was passed just about 80 years after the first mass-produced handgun was brought to market. How could it not be legal under such parameters?

Still, the impact of the ruling is probably narrower than many on the left are stating. Six states have laws like New York's, and while they make up about a quarter of the U.S. population, there are plenty of tools for them to course-correct.

For instance, the New York legislature is already considering expanding the gun-free boundaries around sensitive areas like subways, hospitals and schools, so they would effectively keep it illegal to carry a concealed handgun anywhere in the city. Of course, this should be totally unnecessary, but it will probably limit the impact of the ruling in the immediate term. The majority's ruling does seem to leave the door open for fairly strict regulations in states that want to pursue them.

The unintended consequences, however, are far less clear and potentially much more dangerous.

After the Uvalde massacre, I made clear my opinion that — despite enjoying using guns myself and supporting the right to carry firearms — what we really needed was more friction on gun ownership. That means more training, better red flag laws, and a system that is closer to how we regulate driving cars than what we have now for guns — and the good news is the language of this ruling may still allow states to pursue increasing that friction.

But this opinion could also thrust us in the opposite direction. Take a simple example: Americans are currently prohibited from owning machine guns under federal law. Machine guns were invented in the late 1800s. Justice Thomas has now created tests for gun regulations that demand historical precedent of a regulation, meaning one would have to find laws regulating automatic weapons that are “deeply rooted” in American history. If a law passed in 1911 on handguns doesn’t pass this test, would a federal ban on machine guns from 1884 survive? It might not.

It's also not hard to imagine that a lower court trying to shadow Justice Thomas’s tests would land in a place where Americans could now publicly carry machine guns. And Thomas has placed the burden squarely on the government to find such historical precedent, meaning if the court can’t come to a conclusion, it should err on the side of striking down such restrictions.

Again: Thomas tries to solve this problem by creating standards of uncommon weapons, but now that the historical precedent test has entered the fray so directly it’s a bit unnerving to imagine what could come next (as his own decision proves, the history can be contorted how you see fit). In short, the tests Thomas has created seem to me — as they did to the dissenters in this case — to be not only impractical but useless.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: Statistics and percentages are often used as a reference point or support for an argument. Political polling was used heavily in the 2020 election and continue[s] to be a crutch employed by the mainstream media to drive home a point. However, if there’s anything I learned in my college statistics class, it’s that numbers do lie and data can be easily manipulated.

People hardly drill down to see the factors driving the data which means that what they’re seeing up front might not tell the whole story... All this to say, what is your opinion regarding the use of statistics in the political arena and how do you know when a poll is credible?

— Anonymous, Dallas, Texas

Tangle: Well, for starters, I don't think statistics lie. I think they can be misleading, manipulated and cherry-picked, which is why you should be very wary of them. Obviously, we share statistics in our "Numbers" section every day, but those accompany a broader piece to add some color and context to our stories rather than determine how you should feel about a given topic.

After the 2020 elections, I wrote a piece examining the question of whether the polls were really wrong. My general conclusion was that it's easy to call out all the brokenness of the polling we had, but that plenty of pollsters were actually pretty much on the money when compared with the results of the election. The fundamental issue with political polling today is that most people who are happy to chat on the phone with a pollster calling from The New York Times are people of a specific political persuasion, making it hard to correctly weigh some polls.

While the science of polling isn't perfect, the industry also seems to be trying to course-correct for issues like this. If you have the time, I think looking into specifics about a poll, like sample size, wording of questions, and margin of error is always smart. Finding the pollster and reading their mission statement helps indicate bias, too. And I would say if several polls from a wide-range of sources are all showing the same general trend or conclusion, you can be fairly confident they are onto something. But one poll or statistic in isolation is not the kind of thing you should draw a hard conclusion from.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

Across 43 states, more than one million voters have switched to support the Republican party in the last year, while 630,000 have become Democrats. Those numbers come from a new analysis of voter registration data done by the Associated Press. "Nowhere is the shift more pronounced — and dangerous for Democrats — than in the suburbs, where well-educated swing voters who turned against Trump’s Republican Party in recent years appear to be swinging back," The AP reports. While switching parties is not uncommon, the data reflects a sea change from when Donald Trump was in office and Democrats were consistently at an advantage on party jumpers.


Numbers.

  • 72 million. The estimated number of handguns in the U.S.
  • 42%. The percentage of Americans who say they have a handgun in their home, according to a 2020 Gallup survey.
  • 50%. The percentage of Americans who said they had a handgun in their home, according to a 1968 Gallup survey.
  • 40,000. The number of handgun permits issued to people living in and around New York City, according to the latest estimates.
  • 804. The number of firearm deaths (including suicide) in New York in 2020.
  • 45,222. The number of firearm deaths (including suicide) in the U.S. in 2020.

Have a nice day.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.

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