How the Supreme Court limits our national debate — and action — on gun violence

How the Supreme Court limits our national debate — and action — on gun violence

Opinion by Paul Waldman

Columnist

March 18, 2021 at 4:43 a.m. GMT+9

“Boogaloo Boys” near the Virginia Capitol on Virginia's Gun Lobby Day in January. (Evelyn Hockstein/For The Washington Post)

Because this is America, not only do we tend not to think about our gun laws between mass shootings, but we never have to wait long between mass shootings to think about gun laws again.

Which is why one might say a new report from the progressive group Take Back the Court is predictably timely. It comes after a young man in Georgia allegedly decided that massage parlors were a “temptation” for him — and so he would gun down eight people.

The report, titled “The Supreme Court Plays a Key Role in Enabling Gun Violence,” argues that while only occasionally do cases involving gun laws come before the court, the conservative majority’s hostility to gun regulations — both in the past and likely in the future — plays a key role in shaping the decision-making of legislators and activists. This results in a constrained debate, weaker laws, and ultimately more shootings and killings.

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The report surveys the jurisprudence of the conservatives on the court, and concludes that while there is some uncertainty about where some of them might come down in future gun cases, there is every reason — especially with the 6-to-3 conservative majority — to believe most gun restrictions would be struck.

And it’s that belief, as much as the court’s decisions themselves, that determines what will and won’t happen in politics. So argued Aaron Belkin, the group’s director, in an interview on Wednesday.

“It’s not that they’re implacably hostile” to gun reform, Belkin said when I used that phrase, “it’s that they’re probably implacably hostile.” (Full disclosure: My sister serves on Take Back the Court’s advisory board.)

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While the court for the first time said that the Second Amendment creates an individual right to own guns outside a militia context in the 2008 District of Columbia v. Heller case and then later expanded that right against encroachment by state laws, we don’t yet know how far they’ll go in striking down limits put on gun ownership by states and localities, because they’ve heard relatively few gun cases.

But everyone on both sides of the issue assumes, with good reason, that the court’s conservatives will keep expanding gun rights.

Belkin noted that what constrains policy ambition is the belief that in some future litigation the court’s conservatives will strike down whatever people might be considering — a limit on how many guns you can buy in a month, or where you can take your AR-15 — so the real fear is the one created by the prospect of what they might do.

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The result is that those who want more gun safety measures constantly trim their sails. That includes Democrats (and a few Republicans) at the state and federal level, who would support meaningful gun legislation but decide not to bother, since they think the Supreme Court will just strike it down. It includes even gun safety advocates, who “continue to work on very important but very partial solutions,” Belkin noted.

So while those advocates should be the source of sweeping, ambitious ideas, they wind up arguing for more modest measures, such as universal background checks, that are supported by almost everyone and would likely produce real but relatively small reductions in violence.

“The reason you don’t have thought leadership on comprehensive gun safety is because of the threat of fatal litigation,” Belkin said.

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By comprehensive gun safety, Belkin meant measures like bans on handguns — in other words, changes that you see in other countries but that go way beyond what almost anyone even suggests in the United States. “What every other Western democracy has in place would work here,” he said.

Whatever the political hurdles, those sorts of ideas should at least be part of the discussion. But as Belkin argued, the specter of a conservative Supreme Court striking them down ensures that they don’t even get debated.

The Take Back the Court report is pretty dire. So if you’re a liberal, what’s the solution? It ultimately rests with a more liberal court, where Brett M. Kavanaugh isn’t the justice at the ideological midpoint.

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That means either winning a bunch more presidential elections, so that over time conservative justices who retire or die are replaced with liberals, or it means expanding the size of the court, the reason Take Back the Court exists.

It’s an idea that had its highest-profile debate during the 2020 Democratic presidential primaries, when the candidates were forced to take a position on it. But Joe Biden, it should be noted, was opposed, and you certainly couldn’t get a majority of Democrats in Congress to sign on.

At least not today. But the parameters of debate — which ideas are considered plausible, and what’s considered outside reasonable discussion — are constantly changing. And if we allow ourselves to be limited by what the conservative majority on the Supreme Court might think, we’ll have a debate that is terribly constrained.

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