America’s Gun Laws Are As Old As Its Gun Politics

The US Supreme Court’s decision last month to strike down an 111-year-old New York law mostly prohibiting the concealed carry of firearms has not won a lot of admirers in legal academia. Saul Cornell of Fordham called it “one of the most intellectually dishonest and poorly argued decisions in American judicial history.” Adam Winkler of UCLA mocked it.

The court’s majority opinion, written by Justice Clarence Thomas, takes away the discretion of authorities in issuing permits to carry a gun. The decision relies heavily on a convoluted reading of the history of regulation, saying that New York’s law was outside the bounds of traditional gun laws at the time of both the founding and the “second founding” during Reconstruction.

Rather than discuss the ruling with another disgusted law professor, I decided to talk to Kristin Goss, a political scientist at Duke University, to try to understand what’s going on. Goss, who has studied gun politics and culture for a quarter century, has written or edited three books on gun politics and policy, including “The Gun Debate: What Everyone Needs to Know,” which she wrote with Philip J. Cook. What follows is an edited transcript of my telephone interview.

Francis Wilkinson: In 1991, former Chief Justice Warren Burger called the gun lobby’s expansive interpretation of the Second Amendment, presuming an individual right to firearm possession, a “fraud.” Yet that interpretation has been the law of the land since the Supreme Court’s decision in District of Columbia v. Heller in 2008. It was just extended from the home to the streets with Bruen. How did we get from there to here?

Kristin Goss: There was a very concerted, intentional and strategic effort to dig into the received wisdom about what the Second Amendment was and what it meant and how it should structure gun laws and gun culture. It was a multi-decade project, well-funded by gun interests and others. I don’t think that’s super unusual. The construction of public ideas is a political project, one undertaken by the right and the left.

Wilkinson: In his majority opinion, Justice Thomas writes, “When it comes to interpreting the Constitution, not all history is created equal.” I thought that sentence was more telling than he intended (and perhaps so did Justice Stephen Breyer, who derided what he called “law office history” in his dissent). There’s been a great deal of gun regulation throughout American history. How does that history, which has been increasingly well documented since Heller, end up irrelevant?Goss: I think this conversation is going to be 99% about the uses of history and its interpretations. That could be the title of the court’s decision. So it’s probably worth thinking about what’s new and what’s not new in the realm of guns and history in the current decision. The gun debate, going back 50 years, has really been about tradition versus modernity. There was a Wall Street Journal editorial 50 years ago that said that gun politics was a war between bedrock America and cosmopolitan America. I don’t think anything has fundamentally changed in that assessment except that bedrock America is losing on some key issues in the court of public opinion, but has been winning big lately at the Supreme Court.

Wilkinson: But Thomas wasn’t recounting the history of the culture war. He was establishing the history — or a history — of gun laws in the early republic.

Goss: That’s what’s new — the emphasis on history at the founding, say 1791, and at the “second founding” around 1868, and how much that history should matter today. Here is what I think is actually pretty radical about the decision. Justice Thomas and his colleagues are essentially saying that if we had a societal problem in 1791, but gun laws weren’t addressing that societal problem, then gun laws that are trying to address that societal problem in 2022 might be suspect.

Conversely, if we’re not burdening people with a law today more than we were then, maybe that law would be constitutional. So it all turns on how we do this historical analogizing.

Wilkinson: The societal problem of gun violence doesn’t really exist in Thomas’s opinion. Breyer’s dissent talks a lot about gun violence. But in the majority opinion there’s no notion of public safety as a countervailing interest. What do you make of that?

Goss: I think the Breyer dissent makes a good point that judges and lawyers are not historians. We’ve only recently uncovered the extent of the strict gun laws of the 18th and 19th centuries. So that’s one problem. But I think another problem, as I started thinking about analogizing, is that the world was really different in 1791 compared to 1868. And one way it was different has to do with women.

Wilkinson: So let’s talk about women.

Goss: Let’s talk about modern federal and state gun laws that prohibit firearm possession by people who have been convicted of misdemeanor domestic violence or who are under a permanent restraining order for domestic violence. Where do these laws stand in this historical analogy that the courts are now supposed to use? Married women in 1791 were under coverture — women were not legal persons. Black women were overwhelmingly enslaved. Women did not have civic lives to speak of, they did not vote. Men, I’m sure, were beating their wives in 1791 and slave owners were raping their female slaves throughout this period. There were no laws saying domestic abusers who beat their wives couldn’t have a firearm. So how are we supposed to think about modern laws that treat domestic violence as a problem that affects women when that was not considered a problem in 1791 or 1868, these two founding eras that Justice Thomas points to?

Wilkinson: Isn’t what you’re describing a political accommodation to a cultural and political reality that the court wanted to duck? It’s just Calvinball, isn’t it?

Goss: I am always hesitant to get into people’s motives or how people are thinking. I’m just trying to make the kind of obvious point that women are half the population and had a very different civic place in 1791 and 1868. As a result, the laws that are intended to protect women are going to look really different when women are full and equal citizens.

I bring up domestic violence and guns because, interestingly, that’s one of the few policy areas in the modern war over guns where there is some degree of consensus. Recently, some red states have tightened their laws around domestic violence and firearm access. The boyfriend loophole just got closed through a shockingly bipartisan vote in the Congress. Societal problems are not problems until we decide collectively that they are, and that we are going to do something about them. Domestic violence is a great example of this.

Wilkinson: But it’s not the only area of conflict between present and past.

Goss: There is a similar issue regarding the prohibition on felons. It’s pretty well settled that people who are convicted of violent crimes can’t have guns. Well, those laws were not in place in the late 18th century or the late 19th century. Laws around felons and gun possession started coming into place basically in the 1920s and 30s, which is, by the way, after this New York law that the court just invalidated.

Wilkinson: New York’s law was more than a century old, with antecedents rooted centuries before that. What does that tell us?

Goss: I think it’s a significant ruling on the substance for New York and the other five states (and Washington, D.C.) that have some sort of “may issue” law. I don’t want to downplay that. But I don’t think, from my reading, that’s it’s a huge stretch from Heller and some other recent rulings. It’s somewhat in keeping with the way that states have been going; half the states don’t even require any licensing to carry a firearm anymore. So there’s been a huge deregulation of concealed carry over the last 10 or 20 years. The court is sort of following that.

The more significant part of the decision is this whole new history-centered approach to evaluating the laws. It’s opening up a whole new way of making the Second Amendment a super amendment. Does that then open the door to revisiting all those outstanding laws that Scalia said were undisturbed by Heller?

Wilkinson: I’m sorry to constantly be the voice of cynicism, but it opens the door to whatever five justices want to open the door to, doesn’t it?

Goss: When I was in school for political science, what we learned was that courts never get too far out ahead of public opinion because they have neither the “sword or the purse,” in Alexander Hamilton’s felicitous phrase, and they rely on their public legitimacy. They tend to be lagging indicators of change rather than leading indicators of change. I think the substance of the Bruen decision fits that model. It doesn’t seem wildly at odds with the way we learn about the courts as a political institution. I think the idea that we’re only looking to history, and to the meaning of the Second Amendment at these two critical foundings, and we aren’t taking into account any other interests, that, for me, seems profoundly radical.

Wilkinson: But even that history is conflicted. There were gun regulations in place throughout the two foundings under discussion.

Goss: There were a bunch of states that outlawed concealed carry or public carry in the first half of the 19th century. And those laws were generally upheld. Those laws were written to prohibit carrying if it had the effect of causing terror — public terror. So those 19th century laws were taking into account other interests, the interests of the non-carrying public that has to be around people with guns and other dangerous weapons. The public had an interest in not being terrorized, right? But it’s a little ambiguous whether those laws prohibited people from carrying based on the intent to terrorize, or merely because that was the effect of carrying.

Justice Thomas’s opinion does have a way of just writing out of consideration the interests of people feeling threatened by those carrying guns, or the broader social interest in preventing the public spread of firearms, which the vast majority of studies indicate does influence gun violence.

Wilkinson: I associate you with a group of scholars who’ve tried to be very evidence-based in approaching a highly polarized issue. That kind of factual evidence has little or no role in this ruling, however.

Goss: Certainly there are individual circumstances where having a gun will protect you. But there’s not a huge amount of evidence that having a firearm is going to provide more benefits than costs.

Wilkinson: Which brings us to the question of why so many Americans, on and off the Supreme Court, don’t act on that evidence, or even care about it.

Goss: It’s very tempting to attribute it to fear of change, the recurring tension between tradition and modernity in a very big, diverse nation. You’ve got this well-orchestrated intellectual campaign by individual scholars and gun activists to reinterpret the Second Amendment. But you’ve also got a populace that turn to guns as a solution to problems.

In anticipation of this interview, I was looking back at one of the early books about the gun issue. It’s “The Gun in America,” by Lee Kennett and James LaVerne Anderson, which came out in 1975. In discussing the drive to acquire firearms, they write: “The ultimate fear is not that government will tyrannize, but that it will fail to protect. That fear persists; it causes lines to form in front of gun stores after every major riot or atrocity.”

Wilkinson: We saw lines outside gun shops when the pandemic hit. That’s really been the NRA’s message for years — even more than “jack-booted thugs” rhetoric. Government is corrupt and failing. No one is looking out for you. You’re on your own. You’d better buy an arsenal.

Goss: It becomes a self-fulfilling prophecy. Because the more guns we have, the less secure we are as a society, but the more secure a given individual might feel.