LA Times Opinion: Law Prof Argues Rather Than Gun Reform in Face of Mass Shootings, ‘Different Kind of Gun Revolution’ Underway in Trump Courts

photo by Robert J. Hansen

By Destiny Gurrola

LOS ANGELES, CA – The mass killings in Nashville have fueled the fire for a new wave of wanted gun reform, but “a different kind of gun revolution is already underway,” according to a Los Angeles Times opinion piece.

“Over the past few months, the federal courts have waged an unprecedented attack on U.S. gun safety laws. Spurred by the Supreme Court, judges have declared dozens of mainstream, widely accepted restrictions on firearms unconstitutional,” writes Adam Winkler, a professor at UCLA School of Law and the author of Gun Fight: The Battle Over the Right to Bear Arms in America.

Winkler, in his LA Times opinion, listed laws struck down, including: not allowing domestic abusers to own firearms; not allowing firearms in churches, hospitals and bars; not allowing those with a felony to own a firearm; restricting 18-to-20-year-olds; not allowing loaded guns in vehicles; and not allowing guns with obliterated serial numbers.

The opinion noted the decision made by the Supreme Court last year initiated the wave of new rulings. It’s reported that the new test for courts to apply in all 2nd Amendment cases after New York’s 10-year-old restrictions on who can obtain a license to carry a concealed firearm, by the justices, have not been survivable for modern day gun laws.

Winkler wrote Justice Clarence Thomas, the controversial Supreme Court judge, led a high court majority saying that today’s gun laws must be consistent with the 1700s and 1800s gun laws.

Apparently, per Winkler, originalism was the basis for Thomas’s rationale: The original understanding of the 2nd Amendment and the 14th Amendment reflected the laws from 100 to 200 years ago, setting boundaries for what is constitutional.

“The predictable result has been the demise of 20th century laws for 20th (and 21st) century reality. Take the federal ban on the possession of firearms by domestic abusers, which dated back a few decades.”

“In voiding it, a judge in Texas explained that ‘glaringly absent from the historical record — from colonial times until 1994 — are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence,’” wrote Winkler, adding, “The fact that spousal abuse was often permitted by law in the 18th and 19th centuries didn’t matter.”

Cases from Oklahoma to New York use a similar reasoning, explained the LA Times opinion, noting another court asserted the unconstitutionality of banning guns in airports and buses because guns were not banned on public transportation in the 1800s. Laws banning guns in bars and hospitals did not exist back in the day and are now impermissible infringements of the 2nd Amendment.

“Even when lawyers bring to court evidence of earlier gun laws similar to those being challenged, judges have twisted themselves in knots to deny the similarity exists,” said Winkler.

The writer added, “Although Texas historically barred guns in “educational, literary, and scientific” institutions, that couldn’t justify a law today prohibiting guns in libraries and museums. Texas, a court said, had been an outlier in restricting guns in this way.

“In a case involving guns in churches, a judge dismissed several early American laws barring guns in places of worship because, despite the laws on the books, there was no evidence they had been consistently enforced in practice.”

The extremism of Donald Trump-appointed lower court judges is reflected in some of these decisions, charged Winkler in the LA Times piece.

Trump’s appointment of Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who were known to have pro-gun views before nomination, may allow for a better understanding of the attack on gun safety laws, writes Winkler, noting bans on assault weapons were ruled unconstitutional by Kavanaugh and striking down the lifetime ban of felons to possess firearms is supported by Barrett.

As the last of Trump’s appointees, Barrett’s arrival has been crucial, said Winkler, adding that prior to her arrival there were reasonable restrictions that allowed public safety allowed by the high court, despite the determination in 2008 that there exists an individual right to bear arms.

“But just six months after Barrett took the oath of office, the court decided to hear the New York concealed carry case. All of Trump’s nominees, plus John Roberts and Samuel Alito, joined Thomas’ opinion establishing the new history-based test for 2nd Amendment cases,” writes Winkler.

He adds, “It is possible that some of the recent gun rulings will be overturned on appeal. But the lower court decisions we’ve seen are not, by and large, outlandish applications of the Supreme Court’s test. In dismissing a charge of illegal possession of a firearm by a criminal defendant charged with a felony, a U.S. federal district court judge in Indiana, a Reagan appointee, expressed dismay at the result, noting:

“This opinion was drafted with an earnest hope that its author has misunderstood” the Supreme Court’s decision. “If not,” the judge warned frankly, “most of the body of law Congress has developed to protect both public safety and the right to bear arms might well be unconstitutional.”

Winkler maintains the Supreme Court must abandon or significantly revise the history-based test and take another 2nd Amendment case soon, noting gun violence problems of today are significantly different from those of the past.

He adds that cities were smaller with less urban gun crime prior to the 1900s. Today, suicide is a more significantly recognized problem that it was in the past and during earlier times, Americans had not conceptualized mental illness the way that we do today, nor did they think to keep mentally ill people from having weapons.

Winkler, in the LA Times Opinion, summarizes “…gun violence is spiking in America. According to the Centers for Disease Control and Prevention, more Americans died of gun-related injuries in 2020 than in any other year on record. Gun homicides rose by 35 percent that same year, and has risen even more since.

“And the scourge of mass shootings continue; according to the Gun Violence Archive Nashville was the 129th since January (the archive has since added two more to its list).

“So long as the Supreme Court insists that we combat these current problems with old, outdated tools, we will not be able to reduce gun violence. Indeed, if the justices do not act soon, there may be few gun laws left that even try.”

About The Author

Destiny is a senior at California State University Long Beach completing a Bachelor's Degree in Criminal Justice. She plans in pursuing a career in law and eventually sign language, after taking a two year gap to gain more work experience and travel. She is a first-generation Latina and has a passion for learning and dance. Destiny is fluent in English, Spanish, and hopes to be in American Sign Language. She hopes to use her knowledge and skills to helps others from all walks of life.

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