The U.S. Supreme Court is weighing whether to review a lower court ruling that struck down a law prohibiting domestic abusers from possessing guns. Speaking as someone who has represented families of women and children killed by domestic abusers with guns, the potential danger of this decision is hard to overstate. But under recent Supreme Court Second Amendment precedent, that danger is treated as virtually irrelevant.
How did we get here? Doesn’t the right of a child to live outweigh the right to own a Glock or an AR-15? In most of the world, yes. But in today’s America, probably not.
This extremist interpretation of the Constitution endangers lives in the U.S. and neighboring countries, enables dangerous gun industry practices and conflicts with U.S. obligations under international human rights law.
Since its founding, when the Declaration of Independence recognized “the right to life, liberty and the pursuit of happiness,” the United States elevated human rights — at least in theory. While the Second Amendment recognized a “right to keep and bear arms,” for over 200 years that was understood to only protect state armies — “a well-regulated militia” — from federal infringement. Former Supreme Court Chief Justice Warren Burger called the idea that the Second Amendment limited gun laws “one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.”
Until recently, the Supreme Court routinely prioritized public safety over private rights. The First Amendment, for example, protects the right to shout “fire,” but not in a crowded theater in which people could be trampled.
The fundamental principle that public safety — the right to life — constrained other rights was generally upheld by the Supreme Court until 15 years ago. On June 26, 2008, a 5-4 majority in District of Columbia v. Heller held that the Second Amendment provides citizens with a right to possess handguns to use in private self-defense. That means to shoot other people when the shooter believes it’s necessary.
It took some gymnastics to get around the Constitution’s text and history. Justice Antonin Scalia conceded that protecting state militias was “the reason that the right […] was codified,” but he proclaimed that self-defense “was the central component of the right itself.” Scalia did not explain why the Framers chose not to mention it.
At least Heller limited the right to own handguns to “law-abiding, responsible citizens” and use in the home. But the court began dismantling those limitations one year ago.
On June 23, 2022, the Supreme Court announced New York State Rifle and Pistol Association v. Bruen, which expanded the right of armed self-defense to public spaces. More significantly, the court promulgated a new test that prohibits gun laws that do not have sufficient historical precedent. Whether the law is needed to protect a child’s right to live is treated as irrelevant.
Consider how bizarre and dangerous this holding is. Suppose a law is passed that restricts a particularly dangerous gun. Suppose every researcher agrees it will save lives, every American supports it and every senator and representative votes for it. Under Bruen, courts must nonetheless strike it down unless there was a similar law in the 18th or 19th century — when guns were far less deadly, and gun violence was less of a problem that needed legislation.
In the year since Bruen, judges have struck down laws requiring serial numbers and barring gun possession by domestic abusers and nonviolent felons. To these courts, people who are not “law-abiding” or “responsible” are entitled to guns too.
That’s a far cry from the right the Framers recognized to “keep and bear arms” in service of a “well-regulated militia” to “secur[e]” “a Free State.”
Study after study has associated easier access to guns with more deaths and injuries. The consequence of not allowing strong gun laws is more deaths and injuries from gunfire. In human rights terms, people will be deprived of their fundamental right to life.
Bruen is at odds with the United States’s obligations under international law. The United States is party to the International Covenant on Civil and Political Rights and bound by the dictates of the American Declaration of the Rights and Duties of Man, which recognize that every human “has the right to life, liberty and security of person.” Human rights law obligates nations to proactively protect those rights. Governments may not sit idly by while their people are slaughtered, whether that slaughter is caused by roving criminals or loose gun laws.
Extremists on the court have not just steered the U.S. away from its international obligations and global norms, but from America’s founding principles. To steer the nation back to a constitutional framework that recognizes that kids are more important than guns, international organizations and human rights tribunals need to speak out.
The Inter-American Court for Human Rights and the United Nations are addressing the human rights implications of U.S. gun policy amid growing concern in the international community. Those pressures must continue, to save the U.S. from itself.
Jonathan Lowy is the president of Global Action on Gun Violence.