By Daniel Ganopolsky
Our nation has recently experienced massive shift in gun policy. In the landmark gun-carry case, New York State Rifle and Pistol Association v. Bruen, the Supreme Court declared that New York cannot force applicants for gun-carry permits to “demonstrate a special need for self-protection distinguishable from that of the general community.” It is therefore evident that New York’s “proper-cause” requirement to obtain a concealed-carry license is unconstitutional as it violates ordinary citizens’ Second Amendment rights.
While New York State Governor Kathy Hochul has already announced that new restrictions are forthcoming, it is important to take a step back and analyze the arguments of justice Stephen Breyer through the eyes of the great 18th-century English political philosopher, Edmund Burke. The goal here is not to approve or disprove the Supreme Court’s decision, but to examine and criticize the methodology of Justice Breyer.
Breyer wrote his dissent, accusing the majority opinion of deciding the case “without discussing the nature or severity” of gun violence. Breyer notes how, “In 2020, 45,222 Americans were killed by firearms.” He continues to elaborate on the increasing prevalence of gun violence in America. He points to school shootings, mass shootings, suicides, and road rage accidents. Breyer spends the first eight pages of his dissent listing all the potential dangers of firearms. He argues that since this threat is so severe, each state should be allowed to authorize its own gun regulation laws. Breyer expresses, “The primary difference between the courts view and mine is that I believe the amendment allows states to take account of the serious problems that I have just described.”
Justice Breyer claims that guns create more problems than solutions. Not once does he consider the benefits of gun ownership. Not once does he mention the motivation to carry a guns as protection, and how many countless lives guns have saved. A simple reading of the Second Amendment does not affirm Breyer’s position. The Second Amendment only establishes a positive right of the individual to bear arms and restricts the government from taking them away. Breyer, lacking a strong constitutional basis for his position, appeals to the his audience’s pathos, arguing these restrictive measures are necessary because of the state of emergency we are in. He takes advantage of the increasing gun violence rates to justify his original interpretation of what the law should be.
The danger in Breyer’s approach is that our country is not forever in a state of emergency. Thus, we cannot favor legislation that is simply reactionary. If we do, then once our nation returns to its status quo, the law would no longer apply and would be deemed unconstitutional by his own admission. A Supreme Court Justice must be objective and must determine the law based on the reading of the constitution and the legal precedent decided before them, not by whether there is a temporary surge in gun violence. Edmund Burke points to the dangers in creating policy and law based on, or in reaction to, emergencies. Burke is wary of quick change because it can upend a stable government. Tradition reinforces values, morals, and instructions that keep society functioning. Government must create policy based on the situation at hand and the information available, rather than the extreme circumstances. Justice Samuel Alito points this out and dismisses Breyer’s concern in his concurring opinion. “Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years?” Alito wrote, arguing that the New York law did not stop the 18-year-old shooter who killed ten people in a grocery store in Buffalo, N.Y., last month.
If the state wishes to save more lives, it should find a way to do so constitutionally and without legislation from the high court.
In addition to the Supreme Court case, the Senate passed a sweeping bipartisan gun control bill in response to Uvalde and a mass shooting in Illinois on July 4th, which Senator Chris Murphy described as “the most significant piece of anti-gun violence legislation in nearly 30 years.” Introducing the bill on the Senate floor, Senator Cornyn said, “Since the shooting, my office has received tens of thousands of calls, letters, and emails with a singular message: Do something. Not do nothing. But do something.” And that, indeed, is what he has done. The resultant legislation is sloppy, non-responsive, and rushed, but it’s “something,” and “something” was all it was ever supposed to be. Similar to Justice Breyer’s justification, this bill was a reaction to the emotional complaints of what constituents perceived as an emergency.
In addition, it is unclear what the bill accomplishes. The bill mentions red flag laws, but Illinois already has one. It mentions a permitting system for the purchase and ownership of guns, but Illinois has that, too. It mentions “Universal” background checks, that’s also Illinois law already. What about “assault weapons” and “high-capacity” magazines? Highland Park has banned both since 2013. What about concealed carry? That was prohibited at the parade under an Illinois law that renders it illegal to carry firearms at “any public gathering held pursuant to a license issued by any governmental body.” Straw purchasing is also already illegal, and, besides, the gun was obtained legally.
Yoram Hazony writes in his new book “Conservatism: A Rediscovery”, Burke’s objection to the introduction of very general (or abstract) principles into government is that, since they have not been formulated in such a way as to address only the particular offenses at hand, or to make specific improvements, it is impossible to know what one is really doing by adopting them. Legislators must therefore be alert “to prevent a surprise on their opinions,” which results from accepting too general a principle out of a need to make a necessary repair. As he writes:
“Before they listen to even moderate alterations in the government of their country, they ought to take care that principles are not propagated for that purpose, which are too big for their object. Doctrines limited in their present application, and wide in their general principles, are never meant to be confined to a day at first pretend.”
If this bill does not resolve any current problems, we have to ask ourselves and our leaders what is its purpose. Our elected officials should not pass legislation for political clout. Without a concrete direction, vague and broad bills can be misconstrued and misused toward other unintended consequences. Our lawmakers need to be meticulous and thoughtful when writing and passing legislation. Otherwise, our political system will continue to mislead and fail us without recourse.