[music]

Melissa Harris-Perry: Welcome back to The Takeaway. I'm Melissa Harris-Perry.

On Saturday, President Joe Biden signed a bipartisan gun control bill into law. Passed by the Senate Thursday night and the House on Friday, it enhances background checks for potential buyers, allows authorities to examine juvenile records for the first time, provides funding for states to enact and implement red flag laws that we've covered here on The Takeaway before, and it narrows the so-called boyfriend loophole, making it harder for abusers to buy guns.

In the wake of the horrific mass shootings in Buffalo and Uvalde, Washington found the will to do what it had not done since 1994, take action, but it was action taken in the shadow of Thursday's Supreme Court ruling in New York State Rifle and Pistol Association versus Bruen. In a six-three decision with the majority opinion written by Justice Clarence Thomas, the court found that New York's concealed carry law which requires individuals to show a proper cause and a special need to defend themselves in order to carry a handgun in public was unconstitutional. The decision opens the door for an expansion of the practice of the Second Amendment right to bear arms.

New York Governor Kathy Hochul reacted to the decision.

Governor Kathy Hochul: Shocking. Absolutely shocking that they have taken away our right to have reasonable restrictions. We can have restrictions on speech. You can't yell fire in a crowded theater, but somehow there's no restrictions allowed on the Second Amendment.

Melissa Harris-Perry: I'm joined now by Jacob Charles. He's the Executive Director of the Center for Firearms Law at Duke University. Jacob, thanks so much for being with us today.

Jacob Charles: Thank you for having me.

Melissa Harris-Perry: Is it the best of times or the worst of times when it comes to the Second Amendment right now?

Jacob Charles: I think a lot of that depends on one's view of what the Second Amendment means and should cover. If you're a gun-rights proponent, then you're celebrating this victory. If you're in favor of stricter regulations like the majority of Americans, then I think it's something to be sad over.

Melissa Harris-Perry: How do we understand the Bruen decision in the context of finally some certainly marginal bipartisan action but bipartisan action nonetheless to take at least some of the kind of-- I think would've been characterized as, by gun control advocates, as like the most reasonable basic measures for controlling who might have access to guns.

Jacob Charles: Right. I think it's really striking that in the same week we have the Supreme Court ruling for the first time in 12 years on a big Second Amendment case, and at the same time, Congress passing a new federal gun laws for the first time in 30 years. Those things happen very rarely and they both happened at the same time this past week.

It shows to my mind the way that the elected branches are responding to public opinion and public outcry for stricter gun regulations at the same time that the court insulated from those concerns about public opinion is going in quite the opposite direction.

Melissa Harris-Perry: The court being insulated from public opinion is meant to be, right? Or help me to understand this. That is what the court is meant to be, right? Is insulated so that it can take a longer view?

Jacob Charles: Yes, that's right. The court sometimes appropriately is counter-majoritarian by when at its best protecting the rights of minorities and other groups who don't have political power and can't get their agendas to the notice of those who are making the laws. Sometimes, throughout history, the court, when it gets too far a field of public opinion, has faced backlash from the legislative and executive branches that have constitutional power to check the Supreme Court in certain ways.

Melissa Harris-Perry: I want to talk a little bit about this bill, this legislative action. It does fall short of what President Biden and many other Democrats in particular wanted but it does pass. Do you think that it can have a meaningful effect? We covered, for example, red flag laws. The ways that those seem to really make a difference, particularly on self-inflicted mortal gunshot wounds. That ability to red flag may affect suicide rates but maybe not, for example, mass shootings. Help us understand what is in this bill and where you might see real effects.

Jacob Charles: The bill, as you said, is fairly mild by the standards of what both those who are in favor of stricter gun laws wanted and what polls show the majority of Americans wanted as well. It does do a couple of key things. One is closing the boyfriend loophole is requiring that those who have been convicted of misdemeanor domestic violence crimes includes those who are in dating relationships such that they are now also barred from possessing guns, whereas, previously, they had not been.

It also provides an enhanced background check for those who are under 21 years of age. It's not an all-out ban on weapons possession or weapons purchasing by those under 21 years old, but it does provide a little bit more time and a little bit deeper of a background check.

Then, as you mentioned, I think one of the most significant things about the legislation is at least as it relates to guns is related to these red flag laws and incentives that the legislation provides. The research I think is pretty stark in showing the effect these can have on gun suicides. There's also some new research coming out about the ways that it's also been used in California in particular to issue orders against those who are threatening mass harm as well.

The data, you're correct, isn't quite there on its effect on mass shootings but there's some anecdotal evidence out of California that it's been used in instances where individuals have threatened mass harm.

Melissa Harris-Perry: Is there a possibility that this finally passed legislation, this sort of finally, there's action after all of these decades that it could now be challenged based on the Bruen decision?

Jacob Charles: Bruen decision, one of the significant things it did was change the way that lower courts are supposed to decide Second Amendment cases. Before Bruen, I would've said none of these are really open to Second Amendment challenge. They're fairly within what the current doctrine was upholding as consistent with the Second Amendment. Now, Bruen says that all gun laws have to be evaluated based on whether they have a historical analog.

I can see challenges to some of these laws. Obviously, there was no crime of misdemeanor domestic violence at the founding. There was no prohibition on those who had committed domestic violence offenses from possessing guns. Depending on what level of generality the court is going to look to when it's judging a historical tradition, some of these new provisions might be open to new kinds of challenges which I think is just going to emphasize the degree to which courts are ill-equipped to sift through historical evidence in a way that the Bruen decision requires them to.

Melissa Harris-Perry: We're going to take a quick pause. Stick with us, more on this right after this break from The Takeaway.

You're still with The Takeaway, I'm Melissa Harris-Perry. Last week, the Supreme Court found that New York state's concealed carry law was unconstitutional. The court's ruling may have big implications, opening the door for an expansion of the Second Amendment. Back with us now is Jacob Charles, Executive Director of the Center for Firearms Law at Duke University.

I want to talk about this historical precedent piece for a moment. Help me to understand in this case historical understanding but, obviously, there also weren't AR15s at the founding, what does that mean in the context of just the realities of changing technology, a much larger nation, all of the things that have changed from the mid 18th century?

Jacob Charles: Absolutely. Key point is that not only have weapons changed substantially since the founding but so have the concerns that they've given rise to. The way that gun violence is a regular occurring problem in the United States today just was not the same thing that was happening in 1791 when the Second Amendment was ratified or even in 1868 when the 14th Amendment was that-- applied the Second Amendment to the states.

What the court's decision requires lower courts to do is to find either a historical law that matches a modern law or what it said, reason by analogy. The court here I think gave lower courts a lot less guidance than it should have done when it was changing the entire standard that courts should use to judge these cases. All it said was we looked to why a law was justified historically. What was it based on? What was the reason for it and the kind of burden that it imposes?

Those are the relevant metrics that courts should use to judge whether some law in American history is analogous enough to a modern regulation in order to uphold it. As you suggested, things have changed so dramatically in weapons technology and the types of gun violence that we confront today. It's going to be really hard for courts to do this kind of historical analogizing. I fear to do it without importing their own values about what kind of laws are good or important today in comparison to those in existence hundreds of years ago.

Melissa Harris-Perry: Help me to understand the well-regulated militia aspect of the Second Amendment. Just help me to understand what the maybe the legal trajectory has been that went from well-regulated militia to individual AR-15 ownership.

Jacob Charles: In 2008, the Supreme Court ruled in District of Columbia versus Heller for the first time in American history. It wasn't until 2008 that the Second Amendment protects an individual right to possess guns apart from militia service, so really having nothing to do with the militia. What the court said there was, the militia clause, the opening of the Second Amendment was the reason that the founders put it in the constitution because they were fearful of a standing army and they wanted to protect citizens militia, but, the court said, that doesn't restrict the scope of the right. The scope of the right, the court said, is tethered to self-defense.

What that has mostly meant as a matter of Second Amendment doctrine is that today the militia is essentially irrelevant that militia regulations and the way we think about the militia and who's in it is mostly irrelevant to Second Amendment litigation, and now all of the litigation is over whether or not a given law burdens self-defense interest more than is warranted or more than a historical analog would have.

Melissa Harris-Perry: Jacob Charles is the Executive Director of the Center for Firearms Law at Duke University. Thank you so much for joining us today.

Jacob Charles: Thank you for having me.

Copyright © 2024 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.