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The Supreme Court Has Endangered the Future of Gun Control

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As expected, the Supreme Court voted 6-3 to strike down New York’s handgun regulations. Those regulations required New Yorkers to get a permit for carrying a handgun in public and show why they had a special self-defense need for doing so, subject to the review of state licensing officials. It was widely assumed that the Court would find those rules unconstitutional under the Second Amendment, and so it did.

But what was not expected was how Justice Clarence Thomas, writing for the six conservatives, went much further, totally transforming how the Court reviews gun laws in general. In the aftermath of Buffalo, Uvalde, and other mass shootings, the Court just made it much harder to enact future gun control laws of all kinds. Because as of today, in order to be constitutional, any such law must have a specific historical precedent from the 18th or early 19th centuries. (New York’s law dates back to the early 20th century.) That is a terrifying new limitation, because it’s not at all clear if measures such as an assault-weapons ban or age limits have such precedents. And his own opinion shows how subjective and selective history can be read, depending on one’s ideological point of view.

For most of our history, hardly any judges or legal authorities thought that the Second Amendment contained any individual right at all. The reason is obvious: the language of the amendment itself, which reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For most of our history, legal scholars and judges agreed that the second phrase depended on the first. The right to bear arms existed so that people could be part of a militia. It was not an individual right; it was dependent on one’s participation in a militia. That changed in the 1970s, with the transformation of the National Rifle Association into an extremist organization that........

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