A Consequential Gun Ruling After the Buffalo Massacre

During the Supreme Court oral arguments last November, in New York State Rifle & Pistol Association, Inc., et al. v. Bruen, a major gun-control case, Justice Clarence Thomas and Barbara Underwood, New York’s solicitor general, had an exchange about the kinds of place a person might carry a gun. “It’s one thing to talk about Manhattan or N.Y.U.’s campus,” Thomas said. “It’s another to talk about rural upstate New York.” The individual plaintiffs in the case, a challenge to New York’s licensing requirements for carrying a concealed pistol in public, live in Rensselaer County, which, Underwood told Thomas, is more “intermediate” than rural. It’s “not that far from Albany,” she said. “And it contains the City of Troy and a university and a downtown shopping district.” There was an echo of those words on May 14th, as reports came in of a shooting in upstate New York: if Payton S. Gendron, from the small town of Conklin, which is near a university, had driven two and a half hours northeast, he would have ended up in Troy. Instead, he drove more than three hours northwest, to Buffalo, where he killed ten people at a Tops supermarket.

Gendron sought out Black victims, according to his online posts; they indicate that he had become fixated on the “great replacement” theory, which posits that there is a plot to supplant white Americans with supposedly more tractable minorities. That world view, in this Trump-distorted era, is not rare. An Associated Press/NORC poll conducted last December asked respondents to assess the statement “There is a group of people in this country who are trying to replace native-born Americans with immigrants who agree with their political views.” Thirty-two per cent either “somewhat” or “strongly” agreed. The vitriol of Gendron’s alleged screeds and the brutality of his attack are nonetheless startling—a warning about the prospect of more politicized violence in the country’s near future.

What seems tragically mundane, though, in American terms, is that Gendron, who is eighteen, is reportedly the owner of at least three guns: a Savage Axis XP hunting rifle, which he received as a Christmas gift when he was sixteen, the legal age to own one in New York; a Mossberg 500 shotgun, which he bought, legally, in December; and a Bushmaster XM-15 semi-automatic rifle—the apparent murder weapon—which was also legal when he bought it, in January, for less than a thousand dollars, and which he then easily modified to allow for a larger capacity magazine than is permitted in the state. An alarm that Gendron’s high school raised last year, when he said that his post-graduation goals included “murder/suicide,” was not in itself enough, under the state’s “red flag” law, to forestall the purchases.

Gendron’s arsenal accounted for a handful of the estimated four hundred million guns owned privately in the United States. Four days after the shooting, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a report showing that licensed gun manufacturers produced more than eleven million new weapons in 2020—almost triple the number produced in 2000. The report also documented an increase in the number of “ghost guns”—weapons assembled from parts by illicit dealers or by people at home, and bearing no serial numbers. Law enforcement seized more than nineteen thousand such guns last year, suggesting that a far larger number is unaccounted for. (Last week, Illinois became the eleventh state to pass a law restricting ghost guns.) In 2020, some forty-five thousand Americans died of gun-related wounds, more than half of them suicides. When it comes to guns, no corner of the country is untouched.

The New York State Rifle decision, which is expected by the end of June, could make the rules even looser. It has the potential to be the most significant—and, depending on how broadly it is written, most disastrous—gun-law decision in a decade. The ruling should arrive around the same time as the one in Dobbs v. Jackson Women’s Health Organization, the case that is expected to overturn Roe v. Wade. Both cases are the product of decades of advocacy on the right. New York State Rifle is a long-awaited successor to District of Columbia v. Heller, the landmark 2008 decision that enshrined gun ownership as an individual right under the Second Amendment, rather than as the primarily militia- or community-based right that courts had long understood it to be. Under the New York law—six other states have similar statutes—people who want a license to carry a concealed pistol in public for self-defense must have jobs that make them targets (judges, bank messengers) or show “proper cause,” meaning a need specific to them (for example, a person subject to a particular threat) rather than a general fear of crime. The plaintiffs argued that it is illegitimate under Heller to ask people to explain why they should be granted a license. More broadly, their view is that not just owning a gun but carrying it in public places is a right that should be limited only in extraordinary circumstances.

Heller does allow for some gun regulation, but it is not clear about how much, which is why New York State Rifle presents such an opportune opening for those who’d prefer as little as possible. The plaintiffs’ lawyer, Paul Clement, argued that an injustice is being perpetrated against New York gun owners, because they can’t walk around with their weapons as easily as gun owners in Arizona can. Thomas’s comment about urban and rural New York is not a sign that the conservatives would uphold gun laws focussed on cities. Indeed, Justice Samuel Alito offered the view that carrying a concealed weapon on the subway might make sense for “people who work late at night in Manhattan,” and wondered why they shouldn’t be able to easily do so.

For all that, the goal of implementing sensible gun-control laws is not hopeless—most Americans favor restrictions such as universal background checks. The challenge is that the Republican Party has made gun extremism into an organizing principle. The idea that Americans must be armed to defend themselves against every enemy, stranger, or person of a different race—and, ultimately, against their own government—has become intertwined with Trumpism. Like Trumpism, it needs to be countered with a different political vision.

In the oral arguments, Clement strongly objected to the notion that New York has any legitimate reason to discourage the proliferation of guns. “In a country with the Second Amendment as a fundamental right, simply having more firearms cannot be a problem,” he said. He’s wrong about that. The horror in Buffalo is a reminder that it is a very American problem. ♦

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