Last week, the Supreme Court settled a Second Amendment issue — specifically, that states many not effectively legislate out of existence their citizens’ right to bear arms. The Constitution, after all, explicitly recognizes a citizen’s right “to keep and bear arms.”
In this case, New York State Rifle and Pistol Association v. Bruen, as Justice Brett Kavanaugh put it succinctly in his concurrence, the New York law in question runs afoul of the Constitution because it “grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.”
We have frequently argued in our editorials at the Washington Examiner that most gun control proposals are incongruous with or even irrelevant to the problems they supposedly aim to solve. For example, only 2.3% of all homicides from 2010 to 2020 were committed with any sort of rifle — “assault weapon” or otherwise. This nation’s gun violence problem is overwhelmingly a handgun problem. So why is a so-called “assault weapons” ban always the measure of first resort for gun-control supporters? The fact is that it is a performative measure, unrelated to any real-world policy outcome and seemingly calculated to antagonize people who are not killers and really enjoy some of the nation’s most popular models of rifles.
Another puzzler we have repeatedly pointed to is the treatment of universal background checks as if they were some kind of panacea for mass shootings. Nearly all legal firearms sales already require background checks, either under federal or state law. And there is no evidence that the remainder of sales (those relatively few lawful intrastate private gun sales in which background checks are not required by state law) has ever resulted in even a single mass shooting that I’m aware of — or in any significant amount of crime. (If you have a counterexample, please do not hesitate to email me.) There are two real problems with the background check system. The first is that it has repeatedly been defeated by bureaucratic errors and incomplete participation by various jurisdictions in submitting relevant information about people’s criminal and psychological records. Second, the national background check system can obviously never cover illegal gun sales and transfers, which presumably lead to most crimes.
In this case, the New York law at issue was a strict licensing regime for those wanting to carry handguns outside their homes for self-defense purposes. The justices construed it as an effective ban on bearing arms outside the home. Justice Stephen Breyer defended New York’s law in what will be one of the last dissents of his career. He cited several statistics about gun violence and gun deaths in support of his opinion.
But Justice Samuel Alito, in his concurrence supporting the court’s ruling, made precisely the point that we’ve repeatedly been making. Not only are the statistics Breyer cites irrelevant to the constitutionality of the law, but they are also not responsive to the problems of widespread gun ownership that this law supposedly aims to solve.
Here are his comments, with the citations removed:
In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.
What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?
The dissent cites statistics about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?
The dissent cites statistics on children and adolescents killed by guns, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, and bars the sale of a handgun to anyone under the age of 21.
The dissent cites the large number of guns in private hands — nearly 400 million — but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.
Alito is making practical observations here about the effectiveness of the law, and he is spot on. The relevant question here is what exactly do you expect the law to do? Gun-control laws are big over-promisers. Amid a mess of emotional argumentation, few people ever actually do the thinking about what a given measure is going to accomplish in the real world.
You wouldn’t know it from the Left’s reaction to this decision, but this is not going to cause an explosion of crime. Believe it or not, criminals don’t usually draw attention to themselves by applying for licenses to carry concealed.
Meanwhile, we already know how to control gun crime — we were succeeding at it during the late 1990s, all the way up through about 2014. The solution is to throw the book at all violent and repeat criminals. Stop making deals with them and go for maximum sentences wherever possible, even while showing appropriate mercy toward nonviolent and first-time offenders.
If you’re not willing to do that, then there is no gun control measure on Earth that can save the people you are so intent upon misgoverning.