Jun 24, 2022 - Politics & Policy

Gun control takes 1 step forward in Congress, 2 steps back at SCOTUS

Illustration of a gavel coming down on crosshairs.

Illustration: Maura Losch/Axios

Yesterday was the day Congress broke a seemingly intractable partisan logjam and passed the first significant gun-control legislation in years — and yet, yesterday may end up being a net loss for gun control.

Driving the news: Just hours before the Senate cleared a key procedural hurdle on its compromise gun-control bill, the Supreme Court issued a major ruling that will likely make it significantly harder to regulate guns.

  • In a 6-3 decision, the court struck down a New York law that set a high bar for people to get conceal-carry permits. The state had essentially required permit-seekers to prove that they faced unique dangers, greater than the risk that anybody would face, when out in public.
  • That’s a violation of the Second Amendment, Justice Clarence Thomas wrote, saying the right to bear arms includes a right to carry a gun for self-defense purposes outside the home.

The big picture: The loss that gun control advocates experienced at the Supreme Court may end up being bigger than the victory they experienced in the Senate.

Details: The Senate passed its gun control bill last night by a 65-33 vote, and the House is expected to pass it ASAP.

  • The bill would expand background checks for gun purchasers between the ages of 18 and 21, and it provides incentives tor states to administer “red flag” laws.
  • It also would expand an existing policy that prohibits people who have been convicted of domestic assault from purchasing a gun. That ban had only applied to people convicted of abusing a spouse; now it will also apply to romantic partners who aren’t married.

Yes, but: Thursday’s Supreme Court ruling, in addition to invalidating New York’s concealed-carry regulations, will likely open the door to a host of new legal challenges to other state-level gun laws.

  • That could ultimately include challenges to state laws passed under Congress’ new bipartisan bill.

What we’re watching: California, Hawaii, Maryland, Massachusetts, New Jersey and Washington, D.C. have laws on the books similar to New York’s. Those will have to change.

  • Some state laws that survived legal challenges in the past — like restrictions on the size of guns’ magazines — could now be successfully challenged, University of Missouri law professor Royce Barondes told Reuters.

States can limit the right to bear arms, and the courts can uphold those limits, “only if” the law in question “is consistent with the Nation’s historical tradition of firearm regulation,” Thomas wrote in the court’s majority opinion.

  • It will be up to the courts to decide whether red-flag laws pass that test.
  • “The Court's Second Amendment ruling calls into question key parts of the Senate gun bill,” UCLA law professor and Second Amendment expert Adam Winkler tweeted. “Thomas says only gun regulations consistent with historical regulation of guns are permissible. Red flag laws, however, are a modern invention. So too bans on domestic abusers.”
  • And the bar for “historic” is high —Thomas acknowledged in the majority ruling that New York’s approach to concealed weapons was over 100 years old.
  • Chief Justice John Roberts and Justice Brett Kavanaugh joined Thomas’ opinion, but also made a point to note that they believe some restrictions — like background checks and licensing, in general — are OK.

What’s next: The court is widely expected to overturn Roe v. Wade within the next week, maybe even today.

  • The justices will hand down opinions this morning beginning at 10 Eastern.

Editor's note: This article has been corrected to note that 33 senators voted against the bill, not 53.

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