A racist massacre at a Buffalo supermarket that left ten people dead and three injured. A mass shooting at an elementary school in Uvalde, Texas, killing 19 fourth graders and two teachers and injuring 18 others. More than 120 Americans are killed by gunfire every day, a disproportionate number of people of color. Our country faces a long overdue reckoning with the needless suffering caused by easy access to deadlier firearms. The Supreme Court could make matters worse in the coming days if it decides a case that could make regulating the public carry of firearms dramatically more difficult.
As firearm deaths hit record highs, the Supreme Court is poised to rule New York Rifle and Pistol Association v. Bruen, the most significant gun case in over a decade, and is challenging New York’s concealed carry license approval process to allow a handgun to be carried in public . If the oral arguments in Bruen are any clue, the majority will likely root their decision on the same sort of flawed and disingenuous reading of history as the leaked Supreme Court opinion overthrowing Roe v. Wade. Rather than providing clear legal guidance, decisions based solely on history undermine trust in the court by allowing judges to select sources that conform to their personal ideologies in overtly political ways.
As public health legal experts, we urge the court to stop its selective reading of history and instead rule Bruen consistent with the way courts evaluate other constitutional rights. She should base her decision on evidence-based research showing the effectiveness of legislation in reducing the horrifying realities of gun violence in the United States. A brief filed on behalf of social scientists in support of New York’s concealed carry licensing law includes numerous studies showing that relaxing public carry licensing requirements increases violent crime. That more guns in public leads to more gun violence should be more important than looking into the historical crystal ball.
The leaked draft opinion overthrowing Roe, authored by Judge Samuel Alito, states that there is no constitutional right to abortion because it is not “deeply rooted in the history and tradition of this nation[.]However, the leaked draft statement was widely criticized for its inaccurate or selective use of the story.
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 that the opinion “makes a messy history sound very simple… There is a great deal of controversy in the historical literature as to whether abortion was always.” historically unpopular.” Other historians have taken issue with Alito’s claim of “unbroken tradition,” citing the judiciary’s failure to accommodate the fact that abortion was indeed widely permitted in the past.
The Supreme Court appears poised to commit the same transgression in the Bruen case. Courts evaluating Second Amendment cases currently consider evidence-based inquiry to determine whether a particular statute is appropriately tailored to advance a government interest, typically public safety. Proponents of wide-ranging gun rights have increasingly urged the courts to rely solely on text, history, and tradition in Second Amendment cases.
The historical regulation of firearms in the public sphere has been hotly contested by historians and legal scholars alike. A brief filed by a group of conservative law professors argued that carrying guns in public was common in the early days of the Republic. However, another brief, filed by a historian for the United States Air Force, argued that “regulations regarding the carrying of concealed and dangerous weapons are among the oldest and longest-standing in Anglo-American history.” A brief by a retired Conservative judge argued at similar length that Founding Era laws clearly show that carrying firearms in public was not protected by the Second Amendment.
Much of the oral argument was recorded with a back-and-forth about both sides of this contentious story. Noting this, a frustrated judge Stephen Breyer said, “So I’m not sure how to handle the story.”
These conflicting historical narratives illustrate that history alone will not resolve Second Amendment cases and would actually allow judges to select the story that best fits their personal views on guns, regardless of the deadly consequences. This is not only problematic from a legal point of view, but also undermines the legitimacy of the court. The conservative majority may use history as a cloak to claim their hands are tied to what they believe the Constitution dictates, but the Constitution does not require them to turn a blind eye to the epidemic of gun violence and the evidence-based research that Gun Violence Proves Close Prevention Measures Reduce Gun Violence. If they do, it’s because they choose to ignore it.
Roskam is Director of Law and Policy and Carey is Legal and Policy Counsel at the Johns Hopkins Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health.