When it comes to gun policy, there's never been a day quite like Thursday. The Supreme Court issued a 6-3 ruling striking down a concealed carry law in New York, its most significant decision on the topic since 2008. Just hours later, the Senate passed a bipartisan gun bill, the first major package of gun reforms since 1994. That bill is expected to pass the House and be signed into law.
To break down the implications, we reached out to Stephen Gutowski, who reports on guns in-depth at his site The Reload and was named journalist of the year by the Second Amendment Foundation in 2021.
Below is our conversation, edited for length and clarity. (And in case you missed our previous conversation on the gun bill, with Everytown president John Feinblatt, read that here.)
Q: The court's decision was about a specific law in New York, but it's being described as turning point for how the court looks at gun rights more broadly. What does this mean for gun laws moving forward?
Gutowski: The overarching significance of this ruling has more to do with the standard that the court has now elaborated for Second Amendment cases moving forward than it does on the specifics of this New York carry law, although obviously, that will have real impacts as well.
The reason the standard is more important is that it'll have an effect on essentially all gun cases in the federal system from here on out and it's likely to lead to further scrutiny of modern gun restrictions. So that would include things like assault weapon bans, gun sales, licensing schemes, magazine restrictions, and firearm liability requirements.
Basically, it's going to impact any regulation that isn't rooted in historical regulations from the Founding Era, when the Second Amendment was implemented. That doesn't mean if you restrict access to carrying a gun at a government-funded school, that that kind of restriction wouldn't stand up because they didn't have government-funded schools in that era. It's more about whether they have restrictions that are in the same vein, or the same concept, as what existed at the time.
Q: Ten years after this decision, will it be meaningfully different living in a blue or red state when it comes to guns?
Gutowski: That’s a really good question. Everybody thought after Heller and McDonald that it would lead to a cascade of gun laws being struck down. But it didn’t, really, and the court never really followed up on it. Courts in blue areas, like the Ninth Circuit, continued to uphold most gun laws that many gun rights advocates thought violated the Second Amendment. So now we have the court weighing back in here and specifically saying that these lower courts have been doing it wrong for a decade.
I think it’s entirely possible that this new standard of text, history, and tradition will lead to disparate conclusions among courts throughout the country.
The Duke Center for Firearms Law has a whole archive of historical gun restrictions, so if a judge wants to come to a different conclusion, they probably can. And in some cases, you'll probably have people of fair judgment come to different conclusions with the same facts.
"May issue" concealed carry laws are going to get wiped out for sure. As for assault weapon bans, magazine bans, gun sale licensing, they are going to come under closer scrutiny by courts. But if the Supreme Court wants to ensure that the lower courts follow this new standard, as the majority views it, they're going to have to take more cases.
Q: The other big news is the gun deal in the Senate. Why is this bill passing when so many prior attempts failed?
Gutowski: It seems that part of the Republican caucus, including members of leadership, like Mitch McConnell and especially John Cornyn, made the calculation that in the wake of Uvalde, which was a particularly horrific attack, that they needed to give some ground and show that they were doing something.
Q: Tell me a little about the reaction among gun rights groups, because they seemed mostly unmoved by this argument. Is there anything different about their response to this bill?
Gutowski: Some of the groups, Gun Owners of America, Firearms Policy Coalition, are very adamant in their opposition to this bill. But the larger groups with more influence on the Hill, like the National Rifle Association and the National Shooting Sports Foundation, have publicly said they're opposed, but they've been a little more nuanced in their statements. They noted things that they like about it, like the school safety funding and mental health intervention program that's included in the bill, before ultimately saying they can't support it because of the new gun restrictions.
But in politics there's degrees of opposition, and that matters a lot. How opposed is the NRA? How opposed is NSSF? What are they actually going to do to Republicans who vote for this bill? Are they going to spend money on campaigns attacking them in their home states? Because that hasn't happened yet and the bill is going to pass maybe as soon as tomorrow. Is the NRA going to downgrade people's ratings over this bill? Probably, but they haven't made that announcement yet.
So, it's opposition, but it's certainly not the same kind of opposition you would get if this was an assault weapons ban, or something that tried to raise the age for gun ownership. At the same time, there's literally no pro-gun provision in this whatsoever.
Q: Is there a specific provision that’s raised alarms for gun rights advocates in this bill? Or is it more of a slippery slope argument that you think is driving opposition?
I think it’s a combination of the two. Certainly, this bill does make a lot of people nearly prohibited from owning, or at least being sold, firearms. Anyone who has a juvenile record that includes a felony, domestic violence conviction, or involuntarily commitment after the age of 16, it doesn’t matter how old you are now, people will be newly prohibited from selling you guns.
Q: Does the dam break now on more bills now that Republicans realize they can pass something without the sky falling? Or does it become harder for Democrats because Republicans now have this bipartisan bill they can point to?
Gutowski: I think it's way too early to tell. The vast majority of these Republicans who are signing on aren't going to face re-election anytime soon. So how can you judge whether or not this was a political winner for them?
For Cornyn, who's been the ringleader of this effort on the Republican side, it's not just how it plays out for him politically with his next primary, which isn't for quite awhile, but also with his chances of becoming Leader. He's making a big bet that this is going to help, because the other two candidates that want to be the Republican Leader, John Thune and John Barrasso, didn't join on.
You could look at Donald Trump as an example. He unilaterally instituted a confiscation of bump stocks after the Las Vegas shooting. And what were the politics of that? It doesn't seem to have hurt him too much with gun rights voters.
At the same time, it didn't seem to really help him with gun control voters. I don't know that there's anyone on the left giving Donald Trump credit for doing that. So I don't know. It's hard to tell sometimes with these things.