Courts

The GOP Has A Plan On Gun Control: Appoint Conservative Judges So No Gun Control Is Ever Possible

Gorsuch and Kavanaugh are just the tip of spear in the Republican attempt to protect gun violence for a generation.

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When you cut away all the pseudo-intellectual originalism crap, there are essentially two theories of Constitutional interpretation when it comes to gun violence in America.

Theory A: We are a brutish, violent people, and the Second Amendment, as written, provides no relief from our evil nature. The Constitution is soaked in the blood of our children and, absent amendment, it textually demands that more blood be sacrificed in the name of our murderous culture. No right to life or happiness can overcome the rights of the gun or the bullet as codified in our most sacred laws.

Theory B: EVERY OTHER INDUSTRIALIZED NATION IN THE WORLD HAS FIGURED OUT A BETTER WAY TO DEAL WITH THIS! There’s nothing in the Constitution, including the Second Amendment, that requires us to be actively dumber than the rest of the modern world. FOR THE LOVE OF CHRIST, WE CAN DO SOMETHING.

The people who subscribe to Theory B are gaining momentum. After every mass shooting, the number of people who believe that our current Constitutional structure allows for some action on gun control and regulation grows. Universal background checks is an overwhelmingly popular position. Polls show that 85 percent of Americans support “red flag laws,” which allow family members to petition that a gun should be taken away from a person who appears to be a danger to themselves and others. The Second Amendment’s right to bear arms is not absolute, and we all know it’s not absolute (go try to buy a decommissioned M1 Abrams tank if you don’t believe me). Clearly, there are many regulations we can enact that would start the process of declawing our violent society, and those regulations would not interfere with your Constitutional right to own a weapon that took approximately 10 to 15 seconds to reload after every shot.

Unfortunately, the people who subscribe to Theory B are underrepresented on our nation’s courts. This has been the work of the Federalist Society generally, and Mitch McConnell specifically. They have worked to stack the courts with hardcore originalists who subscribe to Theory A.

So much of what McConnell and the FedSoc have done has been to address the fact that their positions are wildly unpopular and manifestly against the small “d” democratic arc of history. They are losing the intellectual battle on guns, just as they’ve lost the intellectual battle on women’s rights, civil rights, gay and lesbian rights, and voting rights. They know that as the Baby Boomer generation finally and mercifully dies off, many of their white male supremacist theories will die with them, and be rejected at the ballot box. And so their plan has been to infuse the courts, the one anti-democratic branch of government, with people who will prevent the progress of society long after people like Mitch McConnell and Donald Trump are gone.

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On Slate, Mark Joseph Stern explains how dire the situation is:

The GOP may have no plan to stop mass shootings, but it does have a plan to ensure that Democrats can’t stop them, either.

To understand the dynamic here, it’s important to remember that the Supreme Court’s Second Amendment decisions have been fairly narrow. In 2008’s District of Columbia v. Heller, the court ruled that the amendment protects law-abiding individuals’ right to keep handguns in the home for self-defense. In 2010’s McDonald v. Chicago, the court held that this right applies against state and local governments. Thus, the Constitution prevents the government from outlawing the possession of a handgun in the home. Under current precedent, the Second Amendment poses no threat to the vast majority of proposed gun regulations.

Try as it might, the National Rifle Association and its allies have failed to persuade the Supreme Court to go any further. The court has declined to hear challenges to a ban on assault weapons, a requirement that guns be stored in a lockbox, a prohibition on concealed carry, and a mandatory waiting period between firearm purchases. A majority of the justices have simply refused to expand Heller and McDonald to curb Americans’ ability to protect themselves from the gun massacres that plague us today.

Trump’s judges are desperate to change that.

We are looking at federal courts, from the Supreme Court on down, that will try to make it easier for people to access deadly weapons, at the very time that overwhelming majorities want to restrict access.

Preventing federal action on gun control is the key to allowing these mass shootings to continue ad infinitum. It doesn’t matter if California has strict gun control laws if a white domestic terrorist can buy his arsenal in Nevada. What happens in Vegas most definitely does not stay in Vegas when it comes to gun reform.

It is because of the relentless efforts of Republicans and conservatives when it comes to promoting conservative judges, including all the “Never Trump” conservatives who now pretend to give a s**t, that I myself have now come to subscribe to Theory A. Our Constitution, as currently interpreted by courts controlled by Republicans, is a blood-soaked invitation to continued mass murder. As long as conservatives can hide behind the Second Amendment, the killings will continue.

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The founders didn’t get slavery right, and they didn’t get women right, and they didn’t get guns right. Nobody’s perfect, least of all wealthy white people from the 1700s. How many more people have to die before we can admit they made a mistake?

The answer, obviously, is many more — scarcely imaginable more. So many more people will be violently gunned down while Republicans act like there’s nothing we can do about it.

Senate Republicans Are Quietly Advancing a Radical Gun Plan [Slate]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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