Two more grisly mass shootings this weekend helped America graduate from people posting that Onion article — “No Way to Prevent This, Says Only Nation Where This Regularly Happens” — to people posting collages of that Onion article, with only the photo swapped out to distinguish between the endless series of bloody gun massacres enabled by this country’s demented laws. The shootings weren’t even the worst of the decade, but something about the back-to-back nature of the carnage spurred even President Trump to finally condemn white supremacist terrorism in Monday’s address and to admit that “perhaps more needs to be done.”
But will it? You probably already know the answer to that question. Even if the president were to reverse himself and support an assault weapons ban or tougher background checks — thereby alienating the Red Dawn cosplayers and strip-mall neofascists who are the unmovable core of his base — the effort would still almost certainly expire in Mitch McConnell’s Senate, a place better thought of as America’s dream pit.
No, the path to sensible gun reform, and to a long-term reimagining of the “individual rights” framework of the Second Amendment, is the same as it has been for years — electing leaders who will do something, and altering the composition of the Supreme Court so that those reforms don’t immediately get tossed in the trash by the conservative majority. Elect more and better Democrats and hold them accountable. Flip control of the Court or, if necessary, enlarge it until the same goal is achieved.
None of those things are happening anytime soon, of course.
In the meantime, neither El Paso nor Dayton will dent the implacable hostility of elected Republicans to gun reform. Even in the aftermath of the conscience-shocking massacre of children at Sandy Hook Elementary School in December 2012, Congress was incapable of passing meaningful reforms to our gun laws. A Republican Senate minority successfully “defeated” a universal background checks measure 46-54, and an assault weapons ban only got 40 votes, with 15 Democrats — mainly red staters worried about losing their seats in the 2014 midterms — breaking ranks to vote against the bill. In other words, a Democratic-controlled Senate could not even muster a simple majority to ban the exact weapons that were just used to murder scores of schoolchildren. Many of them, including Kay Hagan (D-N.C.), Mark Pryor (D-Ark.) and Mark Begich (D-Alaska), would lose their seats the following year anyway. Others, including Joe Donnelly (D-Ind.) and Heidi Heitkamp (D-N.D.), would be defeated in 2018. Lurking over the whole effort, of course, was the reality that the law would likely have gone nowhere in the GOP-controlled House of Representatives, where an even more radical faction of Republicans would have spiked it without even reading it.
Since Sandy Hook, there has been a depressing litany of grisly mass murders. Thirteen murdered at the Washington Navy Yard in D.C. in 2013. Seven in the 2014 Isla Vista shootings. Ten at Umpqua Community College in Oregon. Forty-nine souls lost at the Pulse nightclub in Orlando, Florida in 2016. Fifty-nine innocents gunned down at a 2017 concert in Las Vegas. Eleven worshippers in last year’s Pittsburgh synagogue shooting. And those are just the headliners. There was also a long litany of killings that got barely a moment of national attention, dozens of shootings, killings on top of killings, one after another like some kind of grisly parade. Hundreds of lives snuffed out, with thousands of others irreparably destroyed by grief or injury. Through it all, the country’s political leadership has been both unwilling and unable to muster the courage for even the most minimal legal response.
Today, there are at least signs that if Democratic majorities are sent to Washington after the 2020 elections, background checks and an assault weapons ban would be back in play. The center of gravity in the party has moved sharply left on guns, with the calculated Obama-era acquiescence on the issue a long-gone thing of the past. Enhanced background check laws passed the House earlier this year (and went nowhere, remember: McConnell’s dream pit). With sufficient arm-twisting from a Democratic president, it seems likely that even long-time Senate holdouts like Joe Manchin (D-W. Va.) could be brought into line.
If only it were that simple. Even the most wildly optimistic scenario for next year would give the Democrats a narrow 52- or 53-seat majority in the Senate. And so in addition to persuading senators on the right flank to go along with an assault weapons ban, they will also have to convince them to nuke the legislative filibuster — something that many of the party’s 2020 contenders have said they might support. Because if Democrats aren’t willing to do that, they might as well pack up their whole agenda and go home.
But even if a new ban could make it through Congress, that would be just the beginning of a battle that would likely reach the U.S. Supreme Court, where there is an even more rigid conservative majority than the one that invented an individual right to bear arms in the 2008 Heller case and the lesser known but just as critical 2010 McDonald decision, which applied that finding to the states. Those laws prevented both the federal enclave of D.C. as well state and local governments from passing bans on individual firearm ownership. However, the Court also left open the possibility of banning “dangerous and unusual weapons” that didn’t exist when the Second Amendment was drafted. Since then, the Court hasn’t ruled on assault weapons, and in 2017 left Maryland’s state-level assault weapons ban intact.
Things have changed on the Court though. While Neil Gorsuch replaced gun zealot Antonin Scalia, the newest justice, Brett Kavanaugh, took over for the more moderate Anthony Kennedy, and has a lifelong record of obeisance to the gun lobby. Kavanaugh would almost certainly vote to overturn any assault weapons statute passed by a Democratic Congress and signed into law by a Democratic president, as would Gorsuch, Samuel Alito and Clarence Thomas. The only question is whether they could bring Chief Justice John Roberts along with them.
The possibility of Kavanaugh and his allies undoing even the most basic gun reforms should also remind Democrats that the Supreme Court itself is an issue that will have to be addressed by the next Democratic president. Unless one of the conservative justices dies or retires in the early months of 2021, Democratic legislative achievements, including but not limited to gun control, will be imperiled by a radical conservative majority bent on destroying them. As Kavanaugh himself admitted in his confirmation hearings, precedent can be tossed away should a new Court majority believe that cases were wrongly decided. Assault weapons could be turned into an individual constitutional right. And Democrats will have to consider enlarging the court with progressive jurists, or else watch their whole political project die in Brett Kavanaugh’s hands.
Such a move would also allow the possibility of reversing Heller and McDonald, creating new legislative space for even more significant and consequential revisions of Second Amendment doctrine. Getting there, as with most changes that would actually make a difference, will require Democrats to get radical and stay radical. Until then, keep that Onion link handy. With Trump and the Republicans in charge, you’ll need it, again and again and again.