Supreme Court set to give the most extremist movement in the US a big win — and it's not abortion

The most established extremist movement in the country is the unfettered gun rights movement

By Heather Digby Parton


Published May 16, 2022 9:59AM (EDT)

Amy Coney Barrett, Clarence Thomas and Brett Kavanaugh (Photo illustration by Salon/Getty Images)
Amy Coney Barrett, Clarence Thomas and Brett Kavanaugh (Photo illustration by Salon/Getty Images)

This weekend's horrific mass killing in Buffalo serves as a tragic reminder that the radicalism of the American right-wing is not confined to abortion policy or an anti-democratic movement to take over the election machinery for partisan gain. The most established extremist movement in the country is the unfettered gun rights movement.

Much like the anti-abortion zealots, gun extremists have been methodically chipping away at existing gun safety laws in states while pushing for federal action that would finally achieve their goal of legal possession of deadly firearms by anyone, anywhere, for any reason. There hasn't been as much talk about it, but the Supreme Court heard a case this session that could do for gun proliferation advocates what the Dobbs v. Jackson Women's Health Organization case looks poised to do for the anti-abortion movement. The decision could even be announced on the same day. It was just 14 years ago, in a case called District of Columbia v. Heller, that a bare majority of the Supreme Court held for the first time that the Constitution grants an individual right to bear arms. It was a landmark case that handed the gun lobby the definition it had long sought. Former Justice John Paul Stephens called it the worst decision of his tenure, noting that when he came on the court there was not even any discussion of gun ownership being a "fundamental right." Over the years, however, the NRA worked very hard to make the case and Heller was finally taken up by the conservative majority in 2008. However, even with that proclamation, the court did not suggest that this meant states had no right to enact gun safety measures. The author of the opinion, Justice Antonin Scalia held that while people had the right to keep guns in their homes, communities still had an interest in public safety and keeping dangerous modern weapons off the streets. That was unsatisfying for the gun fetishists so they immediately began taking steps to ensure that interest was as proscribed as possible.

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The case the court heard this term, New York State Rifle and Pistol Asso­ci­ation v. Bruen, involves New York's long-standing law that only people with a specific need ("proper cause") can be licensed to carry a concealed weapon in the state. The plaintiffs in this case both applied for and were granted concealed carry permits but were restricted in where they were allowed to carry their guns. They, along with the NRA, sued, saying they have an unfettered 2nd Amendment right to carry their guns virtu­ally whenever and wherever they feel they might need to defend themselves. In other words, they believe they have a constitutional right to carry a gun at all times.

The most established extremist movement in the country is the unfettered gun rights movement.

The thinking among legal observers is that this court is not going to uphold New York's law as it currently stands, which seems obvious. The only question is whether they find a workaround of the "proper cause" standard to keep it on the books without any real purpose or use the case to greatly expand gun rights. Law professor Eric Ruben explains what that means:

Bruen could be a turning point for how judges evaluate all Second Amendment cases – whether they're about assault weapons, tasers or felon-in-possession offenses. Until now, judges have generally assessed whether such restrictions are justified by current public safety concerns.

Many gun rights advocates are asking the Supreme Court to reject that approach. Instead, they want judges to decide cases on the sole basis of history and tradition unless the judiciary's interpretation of the text of the Second Amendment resolves the issue. This is known as the "text, history and tradition" test.

Justice Brett Kavanaugh is credited with first articulating this test in a dissent he issued prior to his rise to the Supreme Court. Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett all have embraced similar judicial philosophies to some degree.

Unless they've all had some kind of wake-up call over the leaked abortion draft, I don't think you need to be a professional fortune-teller to read the tea leaves on this one. There is an excellent chance they are going to overturn the New York law under this specious new philosophy from the beer-swilling Kavanaugh and that will be that.

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Ruben points out that in 1980 most Americans lived in states that regulated concealed carry of weapons. The NRA managed to lobby many of them to overturn those laws leaving big, populous states New York and California, along with Delaware, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island refusing to go along, thus necessitating the organization to use the courts to get their way when the people in those states refused.

The states in question represent one-quarter of the U.S. population. If the Court overturns the New York law, the gun proliferation advocates will tell the people in those states they just don't know what's good for them and that "an armed soci­ety is a polite soci­ety."  The evidence is clear that this simply isn't true.

This ruling would open the door to confusing litigation based upon this daft "text, history and tradition" test that will require judges to figure out if other, long -standing, regulations adhere to it. They will be forced to decide if regulation of large capacity magazines or semi-automatic weapons are constitutionally based upon their similarity to guns and laws in use 150 years ago which is ridiculous.

Legal observers worry that the Court could take the most extreme approach and introduce this new "text, history and tradition" test at least partly because of trumped up partisan grievance politics that insist the 2nd Amendment has been treated as a "second class" right. The whining, self-pitying tone underlying Alito's draft in the abortion decision suggests that the radical majority is not immune to such all-too-common, self-indulgent right wing predilections.

No one knows for sure, but the assumption among some court watchers is that Justice Clarence Thomas will probably write the Bruen opinion since he seems to be particularly energized over the prospect of blowing up all gun regulations and turning the country into even more of a free fire zone than it already is. I doubt if he, or any of the other ultra-right wingers on the Court, would be any more respectful of precedent in gun rights cases than they are in women's rights cases. They have a revolutionary agenda and they aren't going to let anything stand in their way.  

By Heather Digby Parton

Heather Digby Parton, also known as "Digby," is a contributing writer to Salon. She was the winner of the 2014 Hillman Prize for Opinion and Analysis Journalism.

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Commentary Gun Lobby Guns Heller Nra Scotus