Adam Winkler on Thomas's Historical Cherry-Picking on Gun RightsHistorians in the News
tags: Second Amendment, gun control, originalism, Clarence Thomas
In a 6–3 decision, the Supreme Court ruled on Thursday that a New York law restricting the ability to carry a gun in public violated the Second Amendment. The majority opinion, from which the three liberal Justices dissented, raises questions about how cities and states can regulate firearms going forward. It also casts doubt on the constitutional viability of the bipartisan gun bill that passed a procedural vote in the Senate a few hours after the decision was announced. (That bill, which came about largely in response to recent mass shootings in Buffalo and Uvalde, would, if enacted, become the most substantial federal gun-safety law in more than two decades.) To talk about the decision, and what it may mean for future gun-control efforts, I spoke by phone with Adam Winkler, a professor at the U.C.L.A. School of Law and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.” During our conversation, which has been edited for length and clarity, we discussed how Justice Clarence Thomas’s majority opinion cherry-picks history, how states might try to comply with the decision while still regulating firearms, and the meaning of a concurring opinion from Justices John Roberts and Brett Kavanaugh.
What’s your biggest takeaway from this decision?
This decision calls into question a wide variety of gun laws, including several key provisions of the Senate gun bill.
What was New York’s law, and what types of gun laws do you think are most at risk?
New York’s gun law restricted concealed-carry permits to those who could show a special need to have a firearm in public, which the Court said is too onerous a restriction given the Second Amendment. And, in terms of what this will call into question, I think the Court’s ruling will lead to laws in a number of other states being struck down, including California, Massachusetts, Connecticut, and Hawaii, which also have so-called may-issue permitting. Any state that has may-issue permitting will have to rewrite its laws and allow people to carry guns on the street.
Can you describe the differences between may-issue permitting and another kind, which is still allowed, called shall-issue permitting?
May-issue permitting limits concealed-carry permits to people who can show a special individualized need to have a firearm. A general fear of being a victim of crime is not good enough. But if you have had your life threatened, are maybe being stalked, or carry a large amount of cash or jewelry around as part of your job, then you might be eligible for a concealed-carry permit. So a may-issue regime gives the state a lot of discretion over who gets the permit.
A shall-issue-permitting rule is one in which, as the name suggests, the state shall issue a permit to any law-abiding citizen who meets the basic training or educational requirements, and you do not have to show an individualized need.
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