August 20, 1986, there was a mass shooting in the Edmond, Oklahoma

by Joyce Vance

Civil Discourse

Today, these crimes occur with frightening regularity. In 1986, it was still shocking. This shooting and several others around the time led to the use of the phrase “going postal.”

After last term at the Supreme Court, we have to worry about whether the next Patrick Sherrill will have a gun equipped with a bump stock, which permits a firearm to function like a fully automatic weapon, a machine gun, even though an “actual” machine gun is illegal. That case was Garland v. Cargill.

But it’s been the entire trajectory of the Supreme Court’s decision-making process regarding firearms since 2008 that has brought us here. The Second Amendment reads:

“A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Historically, courts evaluated restrictions on firearms in terms of how they impacted a well-regulated militia.

District of Columbia v. Heller

Then, in 2008, Justice Scalia authored the majority opinion in District of Columbia v. Heller. The Court held the right to possess a firearm was an individual right, despite the Second Amendment speaking in terms of a well-ordered militia. Scalia was joined by Justices Roberts, Kennedy, Thomas, and Alito. Justices Stevens, Souter, Ginsburg, and Breyer dissented.

Fifteen years later, in June 2022, the Court decided New York State Rifle & Pistol Association v. Bruen. Heller involved the right to possess a firearm in the home. Bruen went beyond that, finding a constitutional right to carry a handgun outside the home for self-defense. Only restrictions that were supported by history and tradition were constitutional, the majority held.

That’s ironic, because the history and tradition of gun laws in this country revolved around the plain language of the Second Amendment, which focused on the “well ordered militia” language and not an individual right to have a gun, especially not one equipped with a high-capacity magazine or a bump stock. As many people have noted, the musket of the colonial era is nothing like the assault weapons that are frequently used in mass shootings.

The Constitution isn’t supposed to be a suicide pact. Why would the Justices turn it into one?

This weekend, I was reminded of the tragic shooting in Oklahoma, which occurred 38 years ago this month. And all of the other shootings. The lives that have been damaged. And the people who have been forgotten. I was reminded as I reviewed an older Supreme Court gun case, which was so simple—it doesn’t run to over a hundred pages—and so common sense.

The case is from 1986. McLaughlin v. United States.

In this case, the Court considered whether an unloaded handgun is a “dangerous weapon” within the meaning of the federal bank robbery statute. This matters because the penalty is greater when a dangerous weapon is used to commit a bank robbery.

Justice Stevens, writing for a unanimous Court, concluded that a gun is a dangerous weapon, for three independent reasons:

• “a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place.”
• “the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue.”
• “a gun can cause harm when used as a bludgeon.”

I long for the moral clarity of an era where the Justices believed that the rule of law mattered more than powerful private interests. It’s not difficult to understand that firearms, even unloaded ones, have harmful potential for our society and that restrictions on them provide us with greater safety. I wonder if the sensible decision in McLaughlin will fall by the wayside one day, too.

When the Supreme Court goes back into session this fall, Garland v. VanDerStok will be one of the cases on its docket. The Court will decide whether, as a regulatory matter, the Biden administration could properly regulate build-at-home “ghost gun” kits. The Fifth Circuit decided that they couldn’t. Urging the Supreme Court to hear the case, Solicitor General Elizabeth Prelogar explained that if the Fifth Circuit’s decision stood, “anyone could buy a kit online and assemble a fully functional gun in minutes — no background check, records, or serial number required.” She pointed out the obvious, that this would result in a “flood of untraceable ghost guns into our Nation’s communities, endangering the public and thwarting law-enforcement efforts to solve violent crimes.”

There are more gun cases percolating in the lower courts.

In the week ahead, children begin to go back to school. More will return in the following weeks. And there is the ever-present fear of more gun violence, which the Supreme Court could have taken steps to protect against, but refused to.

As voters, we play a big role in deciding who decides what the law is and who makes the rules that impact public safety. The next president will have a significant say in whether (or not) there is Supreme Court reform and what it looks like. They are likely to appoint a number of new justices to the Court, as well as federal judges across the country. We can and must demand better from our courts. As the people around you prepare to send their kids back into the classroom, this is a good week to have important conversations and make sure they understand the magnitude of the decision we are about to make at the polls.

We’re in this together,