By Francis Wilkinson / Bloomberg Opinion
Imagine a fictional Supreme Court, circa 1970, in which the court’s left-wing majority is sympathetic to the ways and means of violent leftist insurgents attacking government and academic institutions and seeking a cultural revolution and the overthrow of the republic.
Fictional Democratic political elites, meanwhile, have called leftists imprisoned for violent crimes “patriots” and “political prisoners.” In a ruling on the legality of Molotov cocktails, the court majority concludes that there is nothing illegal about gasoline, bottles, rags or matches. So, hey, the cocktails must be cool.
Last week, Justice Clarence Thomas, in a 6-3 opinion for the court, declared the Bureau of Alcohol, Tobacco, Firearms and Explosives had exceeded its authority when it implemented a Trump administration ban on bump stocks, the devices that enable semi-automatic rifles to fire rounds at the accelerated pace of a machine gun. Machine guns have been illegal in the U.S. since 1934.
The bump stock ruling was predictable, dull and rich with incipient violence. Thomas adhered to the conservative preference for textualism, resorting to his dictionary to explain why a ban on machine guns does not apply to a device that renders copycat machine guns.
The dissent, written for the liberal bloc by Justice Sonia Sotomayor, jumped through no intellectual hoops in concluding that a ban on all machine guns would logically encompass a device that produces the equivalent of a machine gun, with a capacity to fire more than 400 rounds per minute.
The how and what of such rulings are routinely picked over by legal scholars. This one, for example, readily falls under the rubric of attacks on the administrative state, in which the unelected judges, aided by 20-somethings fresh out of school, supplant the expertise of a federal agency, such as the ATF, with their own hot takes.
However, it’s past time to ask a more fundamental question: Why? Why do these judges keep making it easier to intimidate, terrorize, kill?
Justice Samuel Alito, in a concurring opinion, offered an answer: “Now that the situation is clear,” he wrote, “Congress can act.”
What a kidder the angry old MAGA judge is. “Alito knows that it’s very unlikely that Congress is going to react and pass legislation to shore up this ban,” said UCLA law professor Adam Winkler, an expert on gun law.
Congress did not act after October 1, 2017, when a shooter equipped with an arsenal of semi-automatic rifles and bump stocks opened fire from the 32nd floor of the Mandalay Bay Hotel in Las Vegas. He murdered 60 people attending the concert below. More than 800 were injured by gunshots or the resulting panic. The ATF handled the bump-stock issue because Congress failed to.
Whose rights were infringed by a ban on guns that fire like machine guns? The Greater American Bump-Stock community? The universe of people who feel a desperate need to fire a machine gun copycat and the universe of people who should be kept far away from such firepower is one and the same.
Likewise, the conduct of this Supreme Court is increasingly indistinguishable from the deepening radicalism of Republican politics. Chief Justice John Roberts’ court has been using law to destabilize American society as surely as the Republican Party has been using lies to destabilize American elections. Roe v. Wade was “settled law” until suddenly it wasn’t, and now a nonviable fetus in Texas has rights that trump those of a living woman.
The court’s rapid expansion of gun rights has accompanied not only the GOP’s steep democratic decline, but the Republican base’s growing affinity for violence. In a survey for PRRI, one-third of Republicans said that they believe “true American patriots” may have to resort to violence to “save” the country.
Gas, bottle, rag, match.
Justice Antonin Scalia’s 2008 Heller decision, which created an individual right to firearm possession, was a brash offensive, with the great champion of textualism effectively deleting the words “well-regulated militia” from the Constitution.
A few months after Scalia led the court into the wilds of Heller, the GOP began its descent into birtherism. Faced with the option of becoming more centrist to gain votes, or more extreme and less democratic to resist change, Republicans opted for the latter.
The Supreme Court, in turn, began to orient the court toward the claims of the Republican base, including dismantling restraints on gun violence.
Thomas’ own landmark 2022 Bruen ruling decreed that all Americans, no matter where they live, or what they value, must submit to the dominance of right-wing gun culture and welcome untrained gun slingers bearing unregistered firearms into their neighborhoods. Americans revolted at the indignity of armed British troops in their homes only to suffer, hundreds of years later, the imposition of armed men in the dairy aisle of their supermarket.
Bruen, which Thomas claimed was grounded in history and tradition, caused an uproar among historians who found, once again, that the text of American civic life had been badly mangled. Thomas’ ruling, however, was a roadmap for partisans, on and off the court, who wish to superimpose Confederate America on pluralistic America.
The GOP’s rapidly degenerating political culture, in which corruption and criminality are now openly celebrated, has its echo in the court as well. Three of the six Republican justices were appointed by a president whose lawlessness was on vivid display long before they accepted his nominations. Two others live in visibly pro-insurrection households, although Thomas’s uncanny sketchiness, and the defiance with which he has met revelations that he pocketed millions in goods and services, puts him in a class of one.
Corruption, of course, is a form of lawlessness, a kissing cousin to violence. And it’s here, in the shadow of authoritarian threats of retribution and violence made by Donald Trump and his allies, that the court’s gun rulings take on their full dimensions.
“These types of decisions enable, in many ways, authoritarian rule in the name of individual rights,” said Alexandra Filindra, a political scientist at the University of Illinois Chicago. “The overall project of expanding individual rights in the name of religion, in the name of capitalism, essentially is creating a society that is more and more unequal, and where people who don’t believe in democracy, and view democracy as an obstacle, have more and more power.”
Filindra and colleagues found in recent research that even the mention of guns in public places has an inhibiting effect on people’s willingness to use or recommend such places. Democracy takes place in public and draws its lifeblood not from gunplay but from open public discourse in safe public arenas. It is incompatible with the intimidation of gun culture.
The Supreme Court will soon hand down a ruling in Rahimi, deciding whether domestic abusers must be allowed to retain firearms. A lower court, following the history-and-tradition logic of Thomas’ Bruen ruling, concluded that abusers were not disarmed circa 1791, or 1868, when the Constitution was constructed and reconstructed and women were property, so abusers can’t be disarmed now.
It’s an election year, so the Republican bloc will likely discover some reason why domestic abusers are an exception to Bruen’s decree. Such a ruling would be a tacit admission that Bruen is a pre-modern mess foisted on a 21st-century world. But it would constitute a momentary respite in the court’s downward spiral, and in the Republican bloc’s grim determination to take the rest of us down with it.
Francis Wilkinson is a Bloomberg Opinion columnist covering U.S. politics and policy. Previously, he was executive editor for the Week and a writer for Rolling Stone. ©2024 Bloomberg L.P. Visit bloomberg.com/opinion. Distributed by Tribune Content Agency, LLC.
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