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Alternate Facts, Dueling Realities, and the Second Amendment: On NYSPRA v. Bruen

Jonathan Lowy

November 15, 2021

 Jonathan Lowy is the Vice President, Legal and Chief Counsel at Brady: United Against Gun Violence.

 

Maybe it was bound to happen in our fragmented post-truth, post-fact society. “Alternate facts” and dueling perceptions of reality entered the Supreme Court and took center stage in oral arguments in New York State Rifle and Pistol Association (“NYSRPA”) v. Bruen. In Bruen, the Supreme Court is considering whether to strike down New York’s century-old law that restricts the concealed carrying of firearms to those with good cause. While America’s gun violence epidemic claims 40,000 lives each year, and the challenged law has helped New York achieve some of the lowest firearms death rates in the nation, most Justices either discussed the Second Amendment as if it involved theoretical “widgets,” or fantasized untrained gun-wielding superheroes who reliably fend off “bad guys” with no social cost. The truth is very different.

A decision for NYSRPA in Bruen would have stark—and deadly—consequences in the real world. It could deprive states of their longstanding authority to restrict loaded firearms in public places, and entitle virtually anyone to bring loaded guns virtually anywhere, so they could shoot people when they deem necessary for self-defense. Such a ruling would vastly expand the Court’s decision in District of Columbia v. Heller, in which it recognized the right of “law-abiding, responsible citizens” to a gun in the home. Heller itself was a radical expansion of prior precedent limiting the Second Amendment to well-regulated militias—that is, today’s National Guard. Enlarging private gun rights to public places would have consequences beyond constitutional theory. Social science tells us that entitling more people to carry hidden handguns will increase violent crime. In other words, more Americans will die.

The damage done by a far-reaching policy-driven decision based on the Justices’ personal, counterfactual views may be even more far-reaching. If the ability of Americans to protect their communities from gun violence falls victim to unsupported assertions, bad history, logical fallacies, and misperceptions of the real-world dangers posed by guns—contradicting principles the Court purports to follow—the credibility of the judicial system may fall victim as well.

The Consequences at Stake

About a quarter of Americans live in states such as New York and California where “may issue” laws generally bar civilians from carrying hidden handguns in public spaces, such as sidewalks, parks, and roads, unless law enforcement determines an individual has good cause to do so. Most other states similarly restricted, or prohibited, concealed gun carrying, until a lobbying blitz by the National Rifle Association in the 1980’s and ‘90s led them to adopt “shall issue” laws, which deprive law enforcement authority to deny carry permits if minimal objective standards are met. More recently, the NRA has pushed about 20 states to relax such laws further by allowing concealed carrying without any permit or training.

The Court in Bruen is contemplating writing NRA policy into the Constitution. A decision for NYSRPA could require all states to generally allow civilians to carry hidden handguns virtually everywhere. The over 85 million residents of New York, California, and other “may issue” states would be forced to live under laws like Alaska’s and Idaho’s. Such a decision would also prevent states like Missouri from revising their current guns-everywhere regimes if they decide, as the evidence shows, that it was a mistake that is killing their residents.

It is also worth noting that gun laws are already more representative of gun lobby clout than the will of the people. Polls show that over 90% of Americans support background checks on all gun sales, 84% want safety education required before first-time gun purchases, and 75% support a 30-day waiting period for gun purchases. Majorities want all private guns registered, a license required for purchases, and assault weapons and high-capacity ammunition magazines banned. Yet none of these stances is the law of the land. Concealed carry laws are also not reflective of public will. About 70% of Americans choose not to own a gun at all, much less carry one in public. Polls show only 12% to 22% support for allowing concealed carry without a permit.

Nonetheless, the Court may mandate that New Yorkers live under a gun policy that even most Texans don’t want. Worse, it may do so based on a series of logical and historical fallacies: throughout the oral argument, some Justices indicated they might purport to follow the “text, history and tradition” of the Second Amendment, while disregarding its actual text, history and tradition.

 

The “Textualist” Fallacy: The Framers Meant What They Said, and Said What They Meant.

The right to carry guns in public that is sought in Bruen builds on Heller’s holding that the Second Amendment provides a right to guns in the home for self-defense. If I have a right to defend myself in my kitchen, the argument goes, I must be entitled to defend myself with guns on the streets of New York. This argument does not recognize that the Court has historically allowed for broad state authority to protect public safety, and broader personal liberty in own’s home than in public spaces, where others have an equal right to be. But a more fundamental problem in this argument is that it relies on a newly concocted self-defense purpose of the Second Amendment, which is without support in the Amendment’s text or history.

First, some background. Heller’s holding jettisoned the well-settled view that the Second Amendment protected bearing arms in the “well-regulated militia” referenced in its text. As former Solicitor General and Harvard Law Dean Erwin Griswold stated before Heller, “to assert that the Constitution is a barrier to reasonable gun laws, in the face of the unanimous judgment of the federal courts to the contrary, exceeds the limits of principled advocacy.” Former Chief Justice Warren Burger (a Nixon appointee), called the notion that the Second Amendment restricts gun laws “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”

This militia interpretation was based on actual text and actual history. While the Framers did not include a statement of purpose in any other of the Bill of Rights, they chose to include one in the Second Amendment: “A well-regulated militia being necessary to the security of a free State.” History shows that the Amendment was driven by anti-Federalists’ concerns that the newly-created federal government could monopolize military might and starve state militias; whatever the Framers thought about guns, they did not have private gun rights on their minds when they drafted and ratified the Second Amendment. In fact, as the dissenting Justices in Heller noted, James Madison, who authored the Amendment, pointedly chose not to include alternate formulations from some states and dissenters that did protect private self-defense or hunting.

In Heller, five Justices accepted what the former Chief Justice labeled a special interest “fraud.” The Court’s historical conclusions were more aligned with the NRA’s calibrated distortions than the historical record or text.  In the name of textualism, the majority relegated the first half of the Amendment’s text to a virtual nullity. In the name of history, it explained away the Framers’ anti-federalist militia purpose into irrelevance. The Court opined that the Second Amendment was intended to provide “law-abiding, responsible citizens,” unaffiliated with state militias, with handguns in the home for self-defense, a “purpose” unmentioned in the Amendment’s text or history.

Justice Scalia, in his majority opinion, conceded that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that the right … was codified,” but he then asserted: “that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.” The opinion provides no citation to this doublespeak. As conservative scholar Nelson Lund explained, Justice Scalia simply issued an “ipse dixit” unsupported by any historical evidence, and misrepresented historical facts in doing so.

Heller’s rewrite of the Framers’ expressed militia purpose to an invented self-defense one appears complete: In the oral argument of Bruen, Justice Alito stated as fact that “the core purpose of [the] right, putting aside the military aspect, is self-defense.” Chief Justice Roberts also implied that “the purpose of the Second Amendment is to allow people to protect themselves.” While the Heller majority at least made an effort to explain away the inconvenient first half of the Second Amendment, in the Bruen argument no Justice mentioned the “well-regulated militia” purpose stated in the text, or its anti-federalist rationale. It was as if the Constitution now reads, “Guns being a necessity for private self-defense, the right of the people to keep and bear arms shall not be infringed.”

Now, this alleged self-defense purpose might eclipse the Framers’ actual stated purpose behind the Amendment, at least if Heller is expanded to include a right to carry guns in public:  armed vigilantes who would have been stopped by the Framers’ notion of a militia may become entitled to carry guns.

The “History and Tradition” Fallacy: 40 Years of NRA Lobbying Does Not a Tradition Make

Oral arguments in Bruen also exposed how the “text, history, and tradition” proponents of a broad right to carry guns are at odds with history and tradition. NYSRPA’s arguments in Bruen suggested that America has a longstanding tradition of freely allowing gun carrying in public spaces that carries into the present, in which “43 states” now provide people a right to concealed carry.  But the actual history is very different.

From the early settlers to the early 20th century public gun carrying was greatly restricted in America. As early as 1686, New Jersey enacted a law against wearing weapons because they induced “great Fear and Quarrels.” In the 1700s, Massachusetts, North Carolina and Virginia passed similar laws. In the 1800s, “as interpersonal violence and gun carrying spread, thirty-eight states joined the list; five more did so in the early 1900s.” As noted by Ninth Circuit Judge Jay Bybee, in rejecting a NYSRPA-like challenge to carry restrictions, a “review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square.” Over a century ago the Supreme Court recognized that traditions dating “from time immemorial” support the fact that “the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons.” Heller itself recognized that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying of concealed weapons were lawful under the Second Amendment or state analogues.”

The relaxed concealed carry laws of the present day are not a product of historical tradition, but of NRA lobbying. The NRA boasts that before 1987 only 10 states had “right-to-carry” laws, but “[i]n 1987, Florida enacted a “shall issue” [right-to-carry] law that became the model for similar laws thereafter adopted in 33 other states.” NYSRPA contended that history after the 1870s is irrelevant in determining history and tradition of gun laws. Yet the concealed carry “tradition” it relies on began over a century later.

The “Chicago’s as Safe as New York” Fallacy:  More Guns Do Not Equal Less Crime Levels

The rationale underlying the argument that carrying guns in public is needed for self-defense is that gun carrying provides effective self-defense. But the data show that gun carrying causes more harm than it prevents.

NYSRPA’s counsel brazenly claimed—repeatedly—that “there really isn’t a case that those 43 states [with relaxed carry laws] that include very large cities like Phoenix, like Houston, like Chicago, they have not had demonstrably worse problems with this than the five or six states that have the regime that New York has.” Those assertions are false. Not only do eight states and the District of Columbia give law enforcement discretion to deny public carrying but Phoenix, Houston and Chicago have homicide rates more than two, three, and five times the rates of New York. Indeed, nine of the ten cities with the highest murder rates in the country are in states with right-to-carry laws. The ten states with the most gun violence all have right-to-carry laws. Six of the seven states with the lowest gun death rates have restrictive carry laws like New York’s.

NYSRPA relies on the debunked “more guns, less crime” claim, championed by the discredited John Lott. In truth, right-to-carry laws are associated with 13-15% higher violent crime rates. Another study found that individuals carrying guns were over four times more likely to be shot in an assault than those not carrying. More concealed carry guns lead to significantly more crime, and more gun deaths. This evidence was presented to the Court. Yet Justice Kavanaugh seemingly ignored the data before him, stating at argument that “I don’t see any real evidence” that states with “shall issue regimes” show higher incidence in crime and violence.

The Fallacy of the Superhero Vigilante: Ordinary Citizens Are Not Better Gunmen than the Secret Service

Real world experience also disproves the faulty premise—which some Justices appeared to assume—that more gun carrying makes us safer. Consider James Brady, who, as White House press secretary, was in the entourage of perhaps the best-protected man on the planet, President Reagan, shielded by a battalion of highly-trained, well-armed Secret Service who could not stop a gunman from nearly killing him. Yet the fantasy persists that untrained civilians, going about their lives, will whip out their guns and hit their targets when needed—and be right that the target “needed” to be shot. This fallacy is wrong on many levels.

For one, even trained police officers miss their targets the majority of the time. And as the shootings of Michael Brown, Jacob Blake, and others show, police too often end up needlessly shooting people, often fatally. Worse outcomes can be expected from civilians with less training, less preparedness for high stress incidents, and less ability to know who is a real threat. Studies also indicate that possessing guns increases aggressive thoughts and aggressive actions, enhancing the risk that guns will be used to unnecessarily harm or kill. Countless shootings by “law-abiding” concealed carry permittees show the tragic consequences that occur as a result. In a Harvard study, judges reviewed reported self-defense gun uses and found most were probably unlawful. While guns may be used in lawful self-defense, it is far more likely that a gun will be used in a homicide, suicide, or unintentional shooting.

In the Bruen hearing, Justice Alito indicated his (contra-science) belief that concealed guns are a self-defense cure-all, suggesting a worker may need a gun to get home safely on the subway. But we’ve seen that movie before: in 1984, Bernhard Goetz shot four unarmed Black men who surrounded him on the New York subway and asked for $5. After shooting three, Goetz said to the other—18 year old Darrell Cabey—who was unhurt and cowering, “[y]ou don’t look too bad, here’s another,” and shot him in the back, leaving him paralyzed. More recently, Ahmaud Arbery and Trayvon Martin, also unarmed, were killed by men who felt entitled to carry and use guns in “armed confrontation.”

Though Justice Breyer raised these real-world implications, other Justices appeared open to the fallacy that “good guys” only shoot “bad guys.”

The First Amendment Fallacy: Unlike Guns, Words Will Never Hurt Me

At the Bruen argument, some Justices inquired whether First Amendment doctrine could be applied to the Second Amendment, as though they were equivalents. None mentioned that allowing speech in a park does not raise the public safety risks of allowing semi-automatic guns.

There also was little mention that the Court generally makes protecting public safety preeminent, even if doing so requires cabining rights, including those protected by the First Amendment. It has held, for example, that the First Amendment does not entitle a man to say offensive words likely to instigate a fist fight. Yet according to NYSRPA, that same man could carry a loaded gun up to his foe in a public place, where he could then shoot if he deemed it necessary. The Justices’ comments suggested their decision may be guided, at least in part, on their personal judgments that concealed guns don’t raise a public safety problem. But this judgement is counterfactual.

The Sensitive Places Fallacy: Protect Columbia’s Students, But Not NYU’s?

NYSRPA conceded from the outset that even under its expansive view of Second Amendment rights, states retain the right to keep guns out of “sensitive places.” A good deal of the argument was spent discussing what these sensitive places are, and why guns should be kept out of them. This discussion revealed core inconsistencies in the “gun rights” position.

In response to the Chief Justice’s questions, NYSRPA suggested that places are sensitive if they restrict entry, yet he deemed university campuses “sensitive” although many don’t restrict entry. NYSRPA’s counsel even attempted to distinguish among campuses, joking—or maybe he was half serious—that Columbia University was a sensitive zone, but NYU did not really have a campus, so it would have to allow guns. Football stadiums are sensitive places, he said, but bars might not be. One wonders if this test means that guns must be allowed at stadiums during free events that require no ticket, even though the same dangers would be present.

Justice Alito offered a lifeline, suggesting that places are sensitive if other security is provided, so that private guns are not needed. This approach raises eyebrows too: Does anyone believe that if the metal detector were out of service and the guards were on strike at the Supreme Court, the Justices would welcome visitors with loaded guns into the courtroom? NYSRPA’s counsel, moreover, refused to accept this test, as well-policed areas could then be gun-free.

The sensitive places discussion exposes a more fundamental flaw that unravels the “guns for self-defense” position. For if it were truly believed that more guns lead to less crime, then why keep them out of football stadiums, college campuses, or any place? And if it troubles Justices that guns and alcohol don’t mix (as Chief Justice Roberts suggested), then why expose the public to intoxicated people who carry guns in parks or cars? If guns have no place in a crowded Times Square on New Years’ Eve (as Justice Barrett suggested), then why not keep guns out of a crowded subway, or other crowded areas on other days? And what’s the special concern about crowds anyway? That’s not where most shootings occur.

New Yorkers have ridiculed the Justices’ failed efforts to relate to the real world (the Giants play in New Jersey, Chief Justice Roberts; Times Square is busy year round, Justice Barrett, and Rockefeller Center is no picnic during the holidays), but this discussion in the oral argument also underscores that judges are not well-suited to make gun policy. Justice Alito’s concern for hard-working people on the subway may be heartfelt, but his suggestion that the best way to keep them safe is unrestricted gun carrying is based on his personal perception of the risks and benefits of guns, not evidence. It is more than reasonable for states to decide that the best policy to keep people safe is not to allow more Bernhard Goetzs to carry guns.

The sensitive places carve-out would also enhance socioeconomic disparities, and correlate protection from gun violence with the resources to select who enters and leaves a given area. Patrons of an NFL football game would be spared the risk posed by people carrying guns, but not parents watching their kids’ pee-wee game—even though youth sporting events have been venues of gun violence. College kids can be protected from the risk of guns, but not kids who are working, or in urban campuses. Roads are not “sensitive,” even though road rage shootings are pervasive.  But keep guns out of the Supreme Court and Capitol Hill by all means.

As Justice Breyer pointed out, the reality is that people get angry, drunk, or reckless in all sorts of places, and when they have guns, people get killed. But most of the Justices did not mention those realities.

Takeaways

One must be careful in analyzing an oral argument, as judges’ questions do not necessarily indicate their views, or reveal the bases for their ultimate decision. But still, the Bruen argument reveals common pitfalls that characterize Second Amendment litigation time and again.

Policy judgments and personal assessments of risks pervade Second Amendment litigation, perhaps more so than any other area of constitutional law. The Supreme Court is simply not the best-informed or appropriately representative body to make those determinations; rather, politically accountable legislatures are the proper body to weigh arguments and evidence. There was a time when this was a “conservative” view. But, as Judge J. Harvie Wilkinson wrote, “Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.” Bruen could be Heller on steroids. If judges seek to expand Heller, and further usurp the role of legislatures in gun cases, they will be revealed as the “judicial activists” they long derided—like politicians in robes, masking ideological agendas as constitutional doctrine.

The institutional credibility of the Supreme Court could be especially damaged if it deprives states of their longstanding authority to restrict guns in the public square, because even the “text, history, and tradition” test they appear to favor supports upholding New York’s law. It was no accident that the attorneys for New York and the United States defending New York’s law led their arguments with the historical record that supports restricting guns in public spaces, while NYSRPA responded to questions about history only defensively. As conservative former Judge Michael Luttig wrote: “Conservatives, textualists and originalists believe — or should — that the Second Amendment ought not be interpreted to take from the people and their legislatures the historical and traditional authority they have had for centuries to decide where handguns may be carried in public and in public places.”

The more courts wade into the gun policy arena, the more they can be expected to pick and choose their own facts and history, and some of those facts and history will be inaccurate. Bruen, and gun cases that will likely follow, jeopardizes the Court’s institutional credibility. Americans will understand that a decision that deprives them of the authority to enact laws to protect their families and communities from gun violence would be unprecedented and dangerous. And when judges don’t follow principles that they purport to believe in, and instead further policy agendas they support, they’re far from the impartial arbiters they claim to be.

Such a decision would be both revealing and tragic, as it would have profound real world effects. More Americans will die if more gun laws are taken off the table by the Court.

The Court is at a crossroads.