By Pratheepan Gulasekaram
“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.”
Santa Clara University Law Professor Pratheepan Gulasekaram knows by heart those words to the Second Amendment to the U.S. Constitution, and has written scholarly papers on various aspects of the subject.
But he knows the numbers, too:
• 393 million guns in the U.S., more than the nation's 330 million people
• At least 25,302 gun-related U.S. deaths recorded since Jan. 1
• Two mass shootings in May by two angry 18-year-olds—in different parts of the country—who executed 10 people in Buffalo, N.Y., and 21 in Uvalde, Texas, the latter victims almost all school children.
Any day now, Gulasekaram expects the U.S. Supreme Court to hand down a decision that could loosen gun laws in New York.
The Empire State requires anyone applying for a license to carry a concealed handgun show “proper cause” for the license. "Proper cause” means applicants must prove they have a special need to defend themselves, rather than generally wanting to protect themselves or their property.
A narrow ruling, legal experts say, would essentially erase existing laws in a handful of other states, including California, that restrict carrying guns in public. But a more expansive ruling may lead to an open season on constitutional challenges to U.S. gun laws.
In the aftermath of America’s seemingly constant shooting tragedies, we reached out to Gulasekaram for some insights about the past, and future, of gun rights in the U.S.
What makes so many Americans resistant to gun reform?
There are multiple reasons, of course. One is a persistent mythology around gun use in America. Going back to the Revolutionary War days, taking up arms was tied to patriotism and existential necessity. James Madison in the Federalist Papers extolled the virtues of being armed as the “advantage” Americans had over the people of other nations. Later, guns were integral to stories of settling the frontier; they were—and remain—key players in apocryphal and legendary stories of the “Wild” West.
Culturally, for many gun owners and gun lobbying organizations, guns are portrayed as the most American thing one can possess—a unique tool that signifies freedom. As I’ve written before, some people perceive that sort of differentiation, that uniqueness, as a core part of American identity. Seen in this light, gun control is un-American and unpatriotic; gun control gets associated with weakness and tyranny. Even now, gun advocates view the root cause of mass murders as something other than the availablity of guns, and the inevitable solution to those massacres is more guns, usually feeding into the fantasy of an armed “good guy” defeating the “bad guy.”
For other people, of course, it’s precisely this form of American exceptionalism that is the problem.
Both sides of the debate point to the watershed 2008 Supreme Court gun rights decision, District of Columbia v. Heller, which flipped the prevailing interpretation of the Second Amendment until then. What was the significance?
Until 2008, gun regulations were generally upheld because the prevailing legal interpretation of the Second Amendment did not countenance the idea that it is an individual right grounded in self defense or defense of the home. Rather, prior to Heller, federal courts interpreted the Second Amendment in light of its “militia” and “defense of the state” provisions, and allowed most restrictions to stand.
Despite that long history, Heller announced that the Second Amendment protects an individual right of self-defense and the ability to defend private spaces, like our homes, with firearms.
The ruling represented a dramatic shift from 40 years earlier, when Warren Burger was the Chief Justice. Nobody would confuse Chief Justice Burger for a liberal or progressive—he was a dyed-in-the-wool conservative. He is famously known for saying in 1991 (after retiring from the Court) that interpreting the Second Amendment as guaranteeing an unlimited individual right to obtain guns was “one of the greatest pieces of fraud” promoted to the American public by special interest groups.
But by 2008, there was a sea change in that idea among conservative legal groups and justices. Heller was the culmination of a several decades-long campaign by the NRA and gun manufacturers to instill an individual, self-defense understanding of the amendment. It’s a legal project, if you will, that started around the 1970s and then through the ’80s and ’90s. A large part of the success of that campaign was the influence of gun manufacturers and the NRA. The NRA became a huge lobbying force with several Congressional members’ re-electability hinging on how they were viewed by the NRA. By the time you get the Heller decision, you had a combination of nearly 30 to 40 years of a sustained campaign to have the right to bear arms divorced from the “collective” right or militia context.
The law challenged in Heller was also an easy target—it essentially banned all handgun possession within the District of Columbia. In 2008, the breadth of that law combined with the NRA’s longstanding campaign, met with a receptive Supreme Court. There were, and likely still are, at least five members willing to back an individual, self-defense interpretation of the amendment and perhaps expand it further in coming years.
That said, it is also important to note that despite what the NRA and gun advocates might argue, Heller by itself does not foreclose the possibility of extensive firearm regulation by federal, state, and local governments. The case dealt with a nearly complete ban on handguns in the home, but beyond striking down such total prohibitions, the opinion leaves open possibilities for maintaining other forms of regulation.
When Justice Antonin Scalia penned the 5-4 opinion on Heller, he seemed to acknowledge the public safety concerns: “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
But isn’t it the impossible patchwork of gun laws around the U.S. that often leads to many gun-related tragedies?
It is difficult to pinpoint one cause of all the horrifying gun-related tragedies. Certainly patchwork gun laws don’t help—prohibitions in one jurisdiction might easily be defeated by purchasing a high-capacity, automatic weapon in a lax jurisdiction and transporting it.
More generally, the idea of monitoring or keeping guns out of the hands of dangerous people, or people we think are dangerous, has been around for a long time, oftentimes through proposals like registration requirements before one has to purchase a firearm.
But gun regulation and reforms have been opposed by the NRA and gun manufacturers for decades, because they maintain that many common sense and popular measures will start the slippery slope towards complete regulation and the banning of guns outright.
I think that we have to get to a point where the NRA, other gun lobbyists, and gun manufacturers are much less powerful than they are now. Either that, or the positions that they support have to become untenable because public opinion will have turned so much that even they have to concede that certain types of regulations are reasonable and have to be passed.
But points of compromise and agreement on guns have been few and far between. The last time major federal gun control passed was after an attempt was made on President Ronald Reagan’s life, and in the aftermath, Reagan as a Republican was able to help push the 1993 Brady Handgun Bill, parts of which are now no longer enforced. Congress later passed a ban on so-called “assault rifles,” but allowed it to lapse in 2004.
As I mentioned in my prior response, Heller does not prevent government firearm regulation; at its most specific, it only stops complete gun bans. Background checks, other purchase regulations, and permitting systems for public carrying were never addressed and arguably condoned by the opinion. One critical area that can be addressed right now without concern for the second amendment are federal laws that shield gun manufacturers and retailers from liability for the use of their products. If Congress had the political will to defy the gun industry, existing immunity laws for the firearms industry likely could be repealed without creating a constitutional problem.
What’s at stake with the current gun rights case out of New York that’s pending before the U.S. Supreme Court?
If New York State Rifle & Pistol Association v. Bruen strikes down New York’s licensing scheme for carrying concealed weapons, it would represent an expansion of Heller beyond handgun bans in the home. The Heller majority stated that the second amendment was “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and further, that many longstanding regulations would continue. But striking down the New York law at issue in Bruen would do exactly that: Restrict the ability of governments, under certain circumstances, to stop the concealed carrying of weapons outside the home, and it would strike down longstanding schemes that New York and other states, like California and Massachusetts use to regulate concealed carrying of weapons.
The expected ruling in Bruen may or may not lead to more availability of firearms, but it would likely facilitate a greater presence of firearms in public life. Looking to the future, this will be a genie that’s hard to put back in the bottle. Once people feel like carrying a concealed weapon is part of their everyday identity and entitlements, it becomes much harder to roll that back.
Is there any hope that the recent shooting massacres might figure into the justices’ decision on this case?
I don’t know the answer, but I would hope so. The justices are humans; they wake up every day in houses with families and read the newspaper. Certainly for some of them, the events of the last month will be at the top of their mind when they write those opinions.
But there are also justices, who—when it suits them—argue that the consequences of their legal interpretations should not factor into constitutional analysis. In a vacuum, as a judicial philosophy, one might argue that constitutional interpretation should be agnostic to current events and immediate consequences: That a judge is called upon to think about how to best interpret the Constitution in a way that will last centuries, rather than be swayed by exigencies of the moment.
In my view, the problem with that philosophy with regards to the Second Amendment is that the potential effects of greater gun access and availability are dire and permanent. To paraphrase Justice Robert Jackson, the Constitution—including the Second Amendment—is not a suicide pact. That verbiage is not a metaphor or hyperbole when it comes to the right to bear arms. The consequences of governmental inability to highly regulate and monitor firearms are literally life and death. And those consequences cannot be reversed.
May 31, 2022
A May 31, 2022, snapshot of all U.S. gun-related deaths since Jan. 1, 2022. Watch live as the numbers continually update at https://www.gunviolencearchive.org/