Ruling by Fear

By enshrining a constitutional “right to carry a handgun for self-defense outside the home,” the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen all but guarantees more guns on streets already bristling with them. It ushers in a world that many people will not be happy to inhabit. But the conservative justices are already living in that world. A dark and cynical view of society runs through their opinions and the questions they asked at oral argument. Danger lurks behind every corner, threatening to lunge at our heels, and the best we can do is arm up. It’s a Wild West worldview in the guise of an originalist, text-bound decision.

Bruen strikes down a New York law, the Sullivan Act of 1911, that required applicants to show a special need for self-protection before getting a license to publicly carry a gun. Writing for the majority, Justice Thomas presents the case as a direct descendant of Heller v. D.C., the Supreme Court decision from 2008 that first established an individual right to bear arms. The Court in that decision interpreted the Second Amendment to broadly guarantee a right to “possess and carry weapons in case of confrontation,” but it concentrated on securing that right within the gun owner’s home, “where the need for defense of self, family, and property is most acute.” In Heller, the conservative justices had a particular menace in mind that Americans needed to defend themselves against: the home intruder. In Bruen, by contrast, the menace is pervasive and diffuse.

Gun rights must be extended from the home to public spaces, Justice Thomas writes, because “confrontation can surely take place outside the home” and indeed “many Americans hazard greater danger outside the home than in it.” For this, he cites a Seventh Circuit case from 2012 recognizing a right to bear arms in public, in which Judge Richard Posner wrote that “a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.” (Posner’s point there was that residents of twenty-first century Illinois still faced dangers that require self-defense, though no longer posed by “hostile Indians.”)

Justice Alito’s concurring opinion draws the hazards of public life in even brighter lines. In one particularly vague provocation, he writes that “many people face a serious risk of lethal violence when they venture outside their homes.” He goes on, in the language of 1990s fear-mongering, to speculate: “No one apparently knows how many of the 400 million privately held guns [in the US] are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law.” Some people, he says, “must traverse dark and dangerous streets in order to reach their homes” and “some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.”

At oral argument, Justice Alito pressed New York’s Solicitor General to confirm that “there are a lot of armed people on the streets of New York and in the subways late at night right now.” When she said she did not know how many armed people were on the subways late at night, he pressed on: “All these people with illegal guns, they’re on the subway… they’re walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can’t be armed?” Justice Kavanaugh, twisting an earlier statement from the Solicitor General that rapes and robberies happen on deserted bike paths, said that “there are a lot of serious violent crimes on running paths.” When Justice Sotomayor asked Paul Clement, the attorney challenging the law, whether the two clients at the heart of the case from rural New York really had a need for self-defense in public places, he responded that the client might have to drive to a country road at night and help a relative with a change of tire, suggesting that he could be attacked while doing so. 

Streets, sidewalks, country roads, and running paths are transformed here from shared, communal spaces into hostile sites of potential violence. In striking down New York’s requirement, Thomas explains that the Constitution must be understood to guarantee the right to carry guns in public not just to people with a specific need for self-protection but to all citizens with “ordinary self-defense needs.” Since the Constitution guarantees rights equally, the Court’s implication is that all of us have a need for armed self-defense, just by living with one another.

Even while some of the justices’ examples of threats are distressingly vivid, though, there is something unreal about Bruen’s treatment of what it really means to give people guns to defend against those threats. No time is spent wondering what happens when a person with a firearm is actually attacked while traversing a dark and dangerous street, or when someone on a subway thinks they’re being mugged. Even the language the majority uses, guaranteeing the right to arms “in case of confrontation,” is sanitized, unspecific, and polite. The specter of legally justified murders, accidents, and manslaughters grimly haunts the decision. The scariest part of the story Bruen tells about the ugly world we live in is that the conservatives have changed the law in a way that will vindicate their cynical view of humanity. We will all become more afraid of one another, and reasonably so.