Jurisprudence

Senate Republicans Are Quietly Advancing a Radical Gun Plan

They’re confirming judges who want to render us powerless to stop mass shootings.

Mitch McConnell
Senate Majority Leader Mitch McConnell.
Photo illustration by Slate. Photos by Win McNamee/Getty Images and LordRunar/E+ via Getty Images.

The Republican Party has no real plan to stop the epidemic of mass shootings that has turned American life into a gruesome Hobbesian nightmare. It’s easy to see why. All available evidence confirms that the guns are the problem: The United States’ patchwork of lax firearms laws allows Americans to slaughter civilians with astonishing ease. To stop mass shootings, lawmakers will need to tighten both federal and state gun laws, which Republicans refuse to do. We must remain sitting ducks, waiting to learn—in Sen. Marco Rubio’s memorable phrasing—whose “turn” it is next to be massacred.

Shortly after the El Paso, Texas, shooting on Saturday, the New York Times published an article that inadvertently presaged Republicans’ nonresponse to the imminent bloodbath. Senate Republicans, the Times noted, have passed virtually no legislation of any kind so far this year. In the face of mounting crises, the Senate’s GOP leaders have allowed little deliberation and few votes. They certainly won’t bring H.R. 8, a universal background check bill that already passed the House of Representatives, to the floor.

Instead, the Senate operates as “an approval factory” for Donald Trump’s judicial nominees, the Times found. Under Trump, the Senate has confirmed two Supreme Court justices, 99 district courts judges, and 43 federal court of appeals judges. Today, nearly 1 in 4 judges on the powerful courts of appeals was nominated by Trump. The president is reshaping the judiciary in the image of the Republican Party’s far-right conservative wing.

It would be a mistake to claim that the Senate has taken no action on gun control. While the House passes gun safety measures, the Senate installs judges who are eager to strike such measures down. Republican lawmakers have taken the long view: They may lose majorities in Congress and state legislatures, but Trump’s judges will sit on the bench for decades to come. Any future firearms restrictions may be invalidated; many existing gun safety laws are in serious jeopardy. 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. Start with his Supreme Court nominees, Justices Neil Gorsuch and Brett Kavanaugh. In 2017, Gorsuch joined Justice Clarence Thomas in declaring that states may not ban civilians from carrying concealed weapons in public. Their dissent accused the court of treating “the Second Amendment as a disfavored right.” By joining Thomas’ opinion, Gorsuch signaled that he would force every state to allow concealed carry—even though states with looser concealed carry laws have more gun deaths. Gorsuch and Thomas also dissented from the Supreme Court’s refusal to block the Trump administration’s ban on bump stocks, which were used in the 2017 Las Vegas shooting.

Kavanaugh, too, proved to be a gun extremist during his tenure on the U.S. Court of Appeals for the D.C. Circuit. In a 2011 dissent, Kavanaugh declared that D.C.’s ban on assault weapons infringed upon the Second Amendment. The District argued that the ban would save lives, since these guns are disproportionately used in mass shootings. Kavanaugh, however, claimed that Heller established a right to purchase assault weapons because there “is no meaningful or persuasive constitutional distinction” between semi-automatic handguns and rifles. (In fact, a typical semi-automatic rifle bullet exits the muzzle with far more power than the typical semi-automatic handgun bullet, making it substantially more devastating to the human body.)

Trump’s lower-court nominees are now openly lobbying the Supreme Court to strike down more gun laws. These judges have advanced an ambitious argument that limitations on the right to bear arms must pass strict scrutiny, the most stringent constitutional standard available. A strict scrutiny test would effectively kill any legislation that was not “narrowly tailored” to advance a compelling state interest—and preventing a mass shooting may not be a good enough reason.

In July 2018, four of Trump’s nominees to the 5th U.S. Circuit Court of Appeals condemned a federal law that bars licensed dealers from selling handguns to out-of-state residents. The law does not ban interstate gun transfers; it merely requires handguns to be transferred to a dealer in the state where the buyer resides.

There is nothing especially burdensome about this law. Congress intended dealers to ensure that every handgun transfer complies with the laws of the state where the buyer resides. A panel of judges for the 5th Circuit upheld the law, and the full court voted not to disturb that ruling. Yet seven judges, including four Trump nominees, dissented, arguing that the law is unconstitutional. Judge James Ho, one of Trump’s most outwardly partisan nominees, scorned the government’s reasoning that “to protect against the violations of the few, we must burden the constitutional rights of the many.” Ho applied strict scrutiny, arguing that because there are “less restrictive alternatives,” like “better information sharing,” the law is not narrowly tailored.

In December, Judge Stephanos Bibas, another Trump nominee, wrote a similar dissent to a decision by the 3rd U.S. Circuit Court of Appeals. A panel of judges upheld New Jersey’s ban on large-capacity magazines (or LCMs). The majority noted that LCMs “have been used in numerous mass shootings” and result “in increased fatalities and injuries.” Without access to LCMs, shooters “must reload more frequently,” giving bystanders opportunities to flee or intervene. Applying intermediate scrutiny, the majority found that the New Jersey law “reasonably fits the State’s interest in promoting public safety.”

Bibas’ dissent could’ve been ghostwritten by the NRA’s lawyers. “The Second Amendment is an equal part of the Bill of Rights,” he wrote. “We may not water it down and balance it away based on our own sense of wise policy.” Bibas argued that the New Jersey law impaired the “core right” of self-defense and must therefore be subject to strict scrutiny. He found that the statute flunked that test, dismissing the “armchair proposition that smaller magazines force shooters to pause more often to reload.”

“Armchair proposition”? Here, Bibas questioned a fact that countless mass shooting survivors can confirm: When a shooter pauses to reload, his intended victims have more time to escape. Bibas’ casuistry demonstrates a flaw in the conservative approach to the Second Amendment. Trump nominees keep demanding that any firearm restriction be subject to heightened scrutiny. But this test is a chilling mismatch for the Second Amendment, because when we talk about “tailoring” gun restrictions, we are really asking how many people must die before the government can justify its laws.

U.S. District Judge Roger T. Benitez, a George W. Bush nominee, illustrated this grisly truth in June 2017. Benitez blocked a California measure that outlawed large-capacity magazines, finding that it failed heightened scrutiny. Why? “Of the ten mass shooting events that occurred in California,” Benitez wrote, “only two involved the use of a magazine holding more than 10 rounds.” The ban’s “marginal good effects”—that is, the lives it would’ve saved—did not justify it. Because “only two” California mass shootings involved LCMs, the law was not reasonably tailored to protect the public.

The next year, a man walked into a bar in Thousand Oaks, California, and killed 12 people. He used large-capacity magazines that he purchased legally. The weapons would have been illegal if Benitez had not blocked California’s ban on LCMs.

Many of Trump’s nominees appear to agree that some unknown number of people must be shot to death before the government can limit access to firearms. Others take an even more extreme approach. In his 2011 dissent, Kavanaugh suggested that courts must look to “text, history, and tradition” to gauge the legality of gun control laws. They cannot deploy any kind of “interest-balancing test.” Unless a gun restriction is “longstanding,” Kavanaugh wrote, it is unconstitutional. This standard—which Ho cited favorably—would prohibit the government from experimenting with any new gun safety law. We would be stuck with the small set of regulations deemed “longstanding” by the courts. No matter how many bodies piled up, we would be helpless to protect ourselves against the butchery.

Trump’s judges are hoping the Supreme Court will kickstart this Second Amendment revolution. They might not have to wait long. This fall, the justices will hear a challenge to New York City’s restriction on the transportation of guns outside the home (unless it’s dismissed as moot). They may use the opportunity to enshrine a new Second Amendment standard into law. The conservative majority could demand that gun laws survive strict scrutiny. Or it could hold that any law that’s not “longstanding” be struck down, as Kavanaugh prefers.

Whatever the justices decide, scores of Trump judges in the lower courts will be waiting to vigorously enforce their decision, knocking down as many gun restrictions as possible. Republican senators will continue to confirm judicial nominees at a record pace. To the extent that the GOP has a plan to address mass shootings, this is it: stack the courts with more judges who will prevent American from addressing gun violence. Trump and the Senate are working together to build a judiciary that renders our government permanently powerless to take action against the bloodshed.