A racist massacre in a Buffalo supermarket, where 10 were murdered and three injured. A mass shooting at an elementary school in Uvalde, Texas, where 19 fourth-graders and two teachers were murdered and 18 others injured. More than 120 Americans killed by firearms every day, disproportionately people of color. Our country is facing an overdue reckoning on the senseless suffering caused by easy access to deadlier firearms. The Supreme Court may make the situation even worse in the coming days when it decides a case that could make it dramatically more difficult to regulate carrying firearms in public.
As deaths by firearm reach record highs, the Supreme Court is poised to decide New York Rifle and Pistol Association v. Bruen, the most significant gun case in over a decade, challenging New York’s permitting process for concealed carry licenses to allow carrying a handgun in public. If the oral arguments in Bruen are any guide, the majority is likely to root its decision in the same kind of flawed and disingenuous reading of history as in the leaked Supreme Court opinion overturning Roe v. Wade. Instead of creating clear legal guidance, decisions relying only on history erode trust in the court by allowing justices to cherry-pick sources that conform with their personal ideologies in flagrantly political ways.
As public health legal experts, we urge the court to cease its selective reading of history and instead decide Bruen consistent with the way courts evaluate other constitutional rights. It should ground its decision in evidence-based research that shows the effectiveness of laws in reducing the terrible realities of gun violence in the United States. A brief filed on behalf of social scientists in support of New York’s concealed carry license law details numerous studies showing that loosening permitting requirements for public carry increases violent crime. The fact that more guns in public leads to more gun violence should be more important than peering into the historical crystal ball.
The leaked draft opinion overturning Roe, authored by Justice Samuel Alito, finds that there is no constitutional right to abortion because it is not “deeply rooted in this Nation’s history and tradition[.]” However, the leaked draft opinion has been widely criticized for its inaccurate or selective use of history.
For example, Mary Ziegler, a professor at the University of California Davis Law School and author of several books on the history of abortion said the opinion “makes a messy history sound very simple…It’s very contested in the historical literature whether abortion was always historically disfavoured.” Other historians have spoken out against Alito’s claim of “unbroken tradition,” citing the justice’s failure to include the fact that abortion was in fact widely permitted in the past.
The Supreme Court seems poised to make the same transgression in Bruen. Courts evaluating Second Amendment cases currently consider evidence-based research to determine if a given law is appropriately tailored to advance a government interest, typically public safety. Proponents of expansive gun rights have increasingly called upon courts to rely exclusively on text, history and tradition for Second Amendment cases.
Historical regulation of firearms in public is hotly contested by historians and legal scholars alike. A brief filed by a group of conservative law professors argued that the public carrying of arms was common in early days of the Republic. However, another brief filed by a historian for the United States Air Force argued that “regulations on the carrying of concealed and dangerous weapons are some of the oldest and most longstanding in Anglo-American history.” A brief by a retired conservative judge similarly argued at length that Founding Era laws clearly show that public carrying of firearms was not protected by the Second Amendment.
Much of the oral argument was taken up with back and forth over both sides of this contested history. A frustrated Justice Stephen Breyer noted this, saying, “So I’m not sure how to deal with the history.”
These conflicting historical narratives illustrate that history alone will not resolve Second Amendment cases, and in fact would allow judges to select the history that aligns with their personal views on guns, regardless of the deadly consequences. Not only is this jurisprudentially problematic, it erodes the legitimacy of the court. The conservative majority may use history as a cover to claim their hands are tied by what they say the Constitution dictates, but the Constitution does not require that they turn a blind eye to the gun violence epidemic and the evidence-based research that proves gun violence prevention policies reduce gun violence. If they do, it is because they choose to ignore it.
Roskam is director of law and policy and Carey is law and policy adviser at the Johns Hopkins Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health.
George is Digismak’s reported cum editor with 13 years of experience in Journalism