Another court tells the U.S. Supreme Court: Enough with the gun craziness.
The U.S. Supreme Court’s acute hostility toward gun safety laws faced more criticism from within the judiciary on Wednesday when the Pennsylvania Supreme Court sharply criticized recent precedents expanding the right to bear arms. In a 4–1 ruling, the Pennsylvania court upheld local restrictions on shooting ranges—and urged SCOTUS to reconsider its embrace of a radical, dangerous interpretation of the Second Amendment.
On a new episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the growing judicial skepticism toward gun rights extremism at SCOTUS. Their conversation has been condensed and edited for clarity.
To listen to the full episode of Amicus, join Slate Plus.
Dahlia Lithwick: Let’s turn to the Pennsylvania Supreme Court—again—which, this week, said: “You know what? Enough with the gun craziness.”
Mark Joseph Stern:This is yet another lower court looking at the decision in Bruen, raising its eyebrows, and saying, “Are you serious about this, SCOTUS?” This case asked—and I’m not exaggerating here—whether individuals possess a right to set up shooting ranges at their homes. Specifically, in their backyards, in residential neighborhoods. A town in Pennsylvania has a zoning ordinance that prohibits shooting ranges in private residences. Do I have to explain why? It seems pretty obvious why you wouldn’t want stray bullets flying around a residential neighborhood. But this gun owner sued for a right to use his property as a shooting range, and he actually won in the lower courts.
AdvertisementOn Wednesday, though, he lost at the Pennsylvania Supreme Court. The court said: “We’re not so sure about the history that was used in Heller and Bruen, and we note some serious skepticism with how the Supreme Court is handling these Second Amendment cases. But we can play amateur historian as well as the next guy.” The court pointed to a pile of historical analogues to the law at issue here—“26 pages’ worth of summaries of over 100 statutes and ordinances emanating from cities spanning more than 40 states and covering all time periods of our nation’s history.” They all show that there is in fact a deeply rooted tradition of preventing people from firing guns in their garages. One justice did dissent, but rationality won this time, and the court used the opportunity to talk about how far SCOTUS has veered away from any semblance of legitimate constitutional interpretation here.
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Read MoreI did want to raise the question, hypothetically, of whether extrauterine childrenhave the right to set up a shooting range in the guest bathroom?
Anyway, some of the language in this opinion borders on salty. I wanted to read a quote from the majority opinion: “We close by adding our voice to the ever-growing chorus of courts across the country that have implored the High Court to answer some of the many questions Bruenboth created and left unresolved—or even to reconsider its path entirely. Our Nation is gripped by a level of deadly gun violence our founders never could have conceived, and, respectfully, some of the Court’s actions in recent years have done little to quell the legitimate fears of ‘the people.’ ”
AdvertisementI just want to tell you that if there were an irony font, the word respectfullywould be in it. This is the court telling SCOTUS: “You opened a Pandora’s box in Bruen then walked away. What the hell are we supposed to do?”
This is a very pointed critique, obviously—the Pennsylvania Supreme Court is saying that SCOTUS left the judiciary incapable of addressing the real crisis of gun violence. Which is true, because Bruen says that courts are literally not allowed to consider the lifesaving effects of gun laws in assessing their constitutionality. SCOTUS is actively endangering Americans by making it impossible for them to address the ever-spiraling epidemic of gun violence through the democratic process. Which is pretty rich since the Second Amendment talks about the need for “security” and a “well-regulated militia.”
Advertisement AdvertisementI just want to read another quote from the opinion: “To many, the BruenCourt’s word that the Second Amendment is meant ‘to be adapted to the various crises of human affairs’ largely rings hollow since the Court has frozen its meaning in time in the ways that matter most. Worse yet, the Court seemingly moves the goalposts with each new case it takes, most recently by sua spontediscarding a test that was uniformly embraced by courts across the country and replacing it with a harsh ‘history-and-tradition’ test no one asked for. We cannot help but wonder (and fear, really): What’s next?”
AdvertisementThis is, I think, the court essentially telling SCOTUS that it has frozen the Second Amendment in a moment when people really didn’t have the capacity to set up a shooting range in their kid’s treehouse out back. But here we are.
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I really appreciate the court’s gestured toward other cases where SCOTUS has played a similar game. Because it’s not just the Second Amendment. It’s the establishment clause. It’s reproductive rights. It’s all these hot-button issues where SCOTUS has abruptly decided that our liberties were frozen in time in 1789 or 1791 or 1868—we’ve never been told exactly when! The Pennsylvania Supreme Court is telling SCOTUS that it’s trying to be faithful to precedent, but it’s stymied because this history stuff is mostly made up on the fly or cherry-picked.
Advertisement AdvertisementI think this all ties back to the Alabama ruling against IVF that you alluded to. Because it’s very similar in a way. It feels like the rug has been pulled out from under us. Half a century of SCOTUS affirming a right to reproductive autonomy, and suddenly the court goes back to the 18thand 19thcentury and says that whatever slave-holding white men thought, that’s the rule today. So a state like Alabama can effectively ban IVF without any constitutional concerns.
It’s incredibly destabilizing for regular people, but it’s also destabilizing for lower courts. The Pennsylvania Supreme Court’s opinion is a critique, but it’s also a plea for SCOTUS to fix the mess that it has created.
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