How Clarence Thomas Guaranteed That Gun Violence Will Kill More Americans

The Supreme Court yesterday temporarily let stand an Illinois law banning the sale of assault weapons such as the AR-15 style semiautomatic rifles that have been used in dozens of mass murders, most recently in a shooting in Farmington, New Mexico, by an 18-year-old male, killing three people and wounding six, including two police officers. The Illinois law also bans the sale of high-capacity magazines frequently used with the AR-15 semiautomatic rifles. The killer in New Mexico expended at least 150 rounds of ammunition during his ten-minute killing spree through a middle-class neighborhood in the town of 45,000 people in the northwest corner of the state.

The decision by the Supreme Court did not rule on the merits of the law, but rather kept the law in force while an appeal is pending with the Seventh Circuit Court of Appeals seeking to overturn the law. The way things are going with this arch-conservative Supreme Court, the Illinois law’s chances of being upheld are slim to none.

The case is destined to end up before the Supreme Court because two district courts handed down differing rulings on the law. One court upheld the law, with Judge Virginia M. Kendall writing, “The text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly ‘dangerous’ weapons are unprotected. Because assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition.” Her decision refers directly to the standard set forth by Justice Clarence Thomas in his Bruen decision that any laws restricting the right to bear arms under the Second Amendment must comport with the “history and tradition” of the time the amendment was written.

A second court found just the opposite: Judge Stephen P. McGlynn, in a court in a different part of the state, ruled the other way, writing, “can [the Illinois law] be harmonized with the Second Amendment of the United States Constitution and with Bruen? ... The simple answer at this stage in the proceedings is ‘likely no.’ "

Plaintiffs in the case seeking to overturn the law cited a dissent filed by Justice Thomas in a 2015 case. Referring to the AR-15 semiautomatic as a “modern sporting rifle,” Thomas wrote, “Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.” In the eight years since that case, another 15 million AR-15 rifles have been sold and are in private hands in this country.

Neither district court in Illinois, nor the Supreme Court in its most recent decisions on the right to bear arms, District of Columbia v Heller and New York State Rifle & Pistol Association v Bruen, dealt with the fact that a right given to you in the Constitution, or created out of whole cloth by the Supreme Court, does not confer even a whit of judgement about how or even whether you should exercise that right.

By comparison, a ban is easy. Laws against homicide, be it first degree murder or lesser variations of the crime, say simply that it is illegal to kill someone. Beyond that prohibition, no more thought is really necessary. The law isn’t saying to citizens that murder is something you should give some thought to before you commit it. The law is saying in simple, direct terms, do not do it.

But a right is a whole different animal. Having the right to free speech, for example, does not mean that you should exercise your right in a malicious manner. Donald Trump learned that the hard way when he was found liable of defaming E. Jean Carroll last week and ordered to pay her five million dollars. But the right to free speech is not a burden. It is, more often than not, a freedom.

The right to bear arms, however, is fraught with all sorts of dangers. The fact that you have a right to walk into a store and buy a gun immediately presents you with a panoply of difficult questions. Should you buy a gun? If you buy a gun, what are you going to do with it? Where are you going to keep it? How will you protect yourself and your loved ones from the known dangers of having a firearm in the house? Will you keep it locked up? If so, where? What of the ammunition? Where will you keep it?

If you think you need the gun for self defense in your home, will you keep it loaded and easily available? If so, how will you ensure that it is not accessed by someone who is not you, such as your child or even a neighbor? If you decide you need to carry the gun in the car with you to defend against a carjacking, a real problem in certain cities, what will you do with the gun if you park the car? Will you leave it inside the car? How will you keep the gun from being stolen from your car, another common occurrence as gun-ownership has skyrocketed in this country?

But the biggest question of all faced by every single person who buys a gun is this: Will I use it to shoot someone if I am attacked at home, or on the street, or in my car? You can defend yourself from a robber or a burglar or a mugger with a baseball bat. If you use the baseball bat to hit someone, you might seriously injure them, but the likelihood of killing them is low. However, if you aim a gun at someone and pull the trigger, there is a strong likelihood that you might kill that person.

In other words, owning a gun for self-defense carries with it the question, are you a killer?

See, buying a gun is the easy part. What you do next is the hard part, and none of these court decisions by courts low and high provide any guidance on that dilemma.

The decision to buy an AR-15 style semiautomatic rifle is particularly fraught because the weapon is so inherently dangerous. A bullet from an AR-15 is designed to tear through flesh and create a huge hole, taking out organs, bone, nerves, arteries, you name it as the bullet travels through the human body. You can carry a semiautomatic pistol like a Glock in your waistband, or you might be reloading it, and if it accidentally discharges, the bullet might go through your butt or your leg, and it might break a bone, or if it hits your foot, quite a few bones. If the bullet accidentally hits someone else standing or sitting near you, it might do similar damage, but it probably won’t kill you or the other person.

If an AR-15 accidentally discharges, it could take off your leg or your arm and open major arteries and you would die within moments unless treated by a trauma team. If an AR-15 bullet accidentally hits someone in the torso, the likelihood of killing them is very high. If it hits you or a person near you in the head, death will be instantaneous.

And Clarence Thomas calls the AR-15 a “modern sporting rifle,” as if it is an innocuous assemblage of metal and plastic. It’s innocuous the same way a semi-truck is a vehicle like your car. They both have engines and wheels, and you can drive both down the road, but a fully loaded semi-truck weighs 80,000 pounds and is eight feet wide and stands thirteen and a half feet tall. If you’re a pedestrian and you get hit by a car crossing an intersection, you will almost certainly end up in the hospital. If you’re hit by a semi-truck, they’ll carry you away from the scene of the accident in a body bag.

The fact of the matter is, there is no easy part when it comes to guns. They’re deadly weapons, every one of them. Even a .22 pistol or rifle can kill you just as dead as an AR-15. Because the AR-15 was designed to be a military firearm that functions as a highly efficient killing machine, a ban on its sale makes all the sense in the world.

But making sense is in the job description of neither the Supreme Court nor the justices who wear its robes. These days, it seems wreaking havoc on the law and our public life and even on our democracy is what the Supreme Court does in its august building just behind the Capitol. Making sense of what to do about that fact is an entirely different question. We should address it while we still have the democratic means to do so.