Since 2008, there has been no greater obstacle to confronting America’s epidemic of gun violence than the Supreme Court. That was the year five justices on the Court decided the Heller case, which held, for the first time in the country’s history, that the Second Amendment of the Constitution protected an individual’s right to bear arms and was not, in spite of its plain language, cabined to protecting the collective right of a militia to bear arms. The Court’s majority claimed its view was consistent with the original meaning of the clause, but legal historians have demolished that claim. The Court’s decision was instead the product of an orchestrated campaign by the National Rifle Association over decades to shift opinion on the Constitution’s meaning. Heller was the culmination of those efforts and the decision drastically curtailed the ability of voters to limit gun possession because it entrenched a constitutional right to possess firearms. The actual holding of Heller covered only the ability to possess a gun inside one’s home for self-defense, but it was just the first step in the Court’s takeover of gun policy.
Despite widespread criticism by legal scholars and historians of the Court’s interpretation of the Second Amendment, the Court (pardon the pun) stuck to its guns. Last Term in Bruen, the Court expanded the scope of the Second Amendment by striking down a New York law that required people to show “proper cause” to get a permit to carry guns for self-defense in public. That decision not only expanded the right to bear arms to include carrying a weapon in public, but it also changed the manner in which the Court would analyze Second Amendment claims to make it even harder for sensible gun regulations to survive the Court’s review.
The Court, in an opinion authored by Justice Thomas, rejected the argument that a regulation that covers guns outside the home can be upheld if it promotes an important interest. Instead, “The government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”