on Oct 30, 2021
at 3:26 pm
This article is part of a symposium on the upcoming argument in New York State Rifle & Pistol Association v. Bruen. A preview of the case is here.
Mary B. McCord is executive director and Annie L. Owens is senior counsel at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
New York State Rifle & Pistol Association v. Bruen represents the first significant Second Amendment case to be taken up by the Supreme Court since District of Columbia v. Heller in 2008. In Heller, the court held, for the first time, that the Second Amendment protects an individual right to keep and bear arms for self-defense. But the court also made clear that the Second Amendment right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and emphasized that its ruling did not impact “longstanding” restrictions on keeping and bearing firearms. The case now before the court attempts to chip away at longstanding restrictions on carrying concealed weapons, even though Heller acknowledged that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The justices should not decide this case without careful consideration of the threat that concealable weapons pose to national security and public safety — the very reasons that longstanding restrictions on concealed carrying do not infringe Second Amendment rights.
The ready availability of firearms in the United States — including high-powered concealable handguns like semi-automatic pistols — creates special national security and public safety challenges for communities. Foreign terrorist organizations have long urged their followers to take advantage of lax U.S. gun laws to plan attacks in the United States. In 2017, an Islamic State propaganda video featured an American fighter, wearing fatigues and a holstered pistol, urging sympathizers in the United States to “[t]ake advantage of the fact that you can easily obtain a rifle or a pistol in America” and “[s]pray the kuffar [infidels] with bullets.” A terrorist training manual disseminated on websites connected to al-Qaeda in the early 2000s instructed would-be terrorists to attend the “many firearms courses available to the public in USA,” such as “[h]andgun courses.”
In several instances, those inspired or directed by foreign terrorist organizations have complied, carrying out mass shootings with concealable weapons that have resulted in the loss of scores of lives. In 2016, an attacker who had pledged allegiance to the Islamic State shot and killed 49 people at the Pulse nightclub in Orlando, Florida. The attacker was armed with a Glock 17 9-millimeter semi-automatic pistol, among other weapons. At the time, the shooting was the deadliest terror attack on U.S. soil since Sept. 11, 2001. In 2019, a Saudi military pilot killed three people and injured eight at Naval Air Station Pensacola with a Glock 9-millimeter pistol he had obtained lawfully in the United States. The shooter, who had been radicalized abroad, coordinated with al-Qaeda in the Arabian Peninsula regarding planning and tactics.
The national security issues resulting from the ubiquity of firearms in the U.S. are not limited to foreign terrorist organizations and their followers. Mass shooters motivated by white supremacist and anti-immigrant ideologies have also used concealable firearms in successful attacks. Dylann Roof attended a Bible study at a Charleston, South Carolina, church before drawing his concealed .45-caliber Glock semi-automatic handgun and killing nine people. Robert Bowers used three Glock .357 handguns, along with an assault-style rifle, in his shooting spree at the Tree of Life synagogue in Pittsburgh, Pennsylvania, killing eleven.
The country has also seen a resurgence of armed political violence perpetrated by domestic anti-government extremist groups. In March 2020, anti-government figure Ammon Bundy founded the People’s Rights militia, which has staged violent and disruptive protests at the Idaho State Capitol against pandemic-related health restrictions. Bundy instructs members of his People’s Rights group “to train in small militia-style groups of two to 10 people” to prepare to defend against the government “force that is evident to come upon us.” In April 2020, armed members of a self-styled militia stormed the Michigan Capitol along with hundreds of other people to protest Governor Gretchen Whitmer’s imposition of pandemic-related restrictions. In October 2020, members of the same group were arrested for planning “a violent overthrow of government and law enforcement entities,” which included a plot to kidnap the governor. Its members “periodically met for ‘field training exercises’ … where they engaged in firearms training and tactical drills to prepare for … a violent uprising against the government or impending politically-motivated civil war.”
The unrest fomenting at the state level was a prelude to Jan. 6, 2021, when self-styled militias and anti-government extremists led a violent assault at the U.S. Capitol. The attack, which was designed to thwart Congress’ performance of its constitutional duty to count the electoral votes from the 2020 presidential election, marked the first time the Capitol had been breached by hostile forces since the War of 1812. Several private militia groups played a key role in organizing and instigating the attack, which FBI Director Christopher Wray labeled an act of “domestic terrorism.” Members of the Oath Keepers brought paramilitary gear, including firearms, tactical vests, helmets, and radios, and planned a Quick Reaction Force to be ready to deploy to prevent the certification of the vote. Multiple people charged in connection with the Capitol riot are alleged to have brought firearms, including assault-style rifles and concealable handguns. One man was caught in the Capitol Visitors’ Center with “a loaded handgun and a spare magazine,” while another who threatened “to shoot House Speaker Nancy Pelosi in the head” was arrested with “an assault-style rifle equipped with a telescopic sight, a Glock firearm with several high capacity magazines and over 2,500 rounds of ammunition — including at least 320 ‘armor-piercing’ rounds.” Many other rioters, aware of Washington, D.C.’s protective gun laws and restrictions against carrying firearms on federal property, did not bring firearms, likely saving lives.
The lethality of concealable firearms is not the only threat to national security. Images of political unrest in American streets undermine confidence in the strength and stability of our democracy and hurt our standing around the world. Indeed, in the latest Fragile States Index, which measures the political stability of countries across the globe, the United States saw the greatest decrease in overall stability of any country in 2020, driven in large part by increasing political polarization and associated violence.
The petitioners in New York State Rifle largely ignore these concerns, advocating a capacious view of the Second Amendment’s right to bear arms for self-defense outside the home that is especially dangerous in target-rich environments like New York City, Washington, D.C., and elsewhere. The threats to national security and public safety — which federal, state, and local officials are charged with protecting against — must inform the Supreme Court’s decision in this case, for the consequences could be significant.