To Carry or not to Carry, That is the Question

The debate over the implementation of and adherence to the Second Amendment has become an abiding concern within the U.S. for decades. The flames of the argument over whether currently instated gun control laws pose an infringement on the individual rights of law abiding citizens are being fanned once again, as the Supreme Court prepares to hear a gun rights case that, according to an AP news article, “could lead to more guns on the streets of New York and Los Angeles and threaten restrictions on guns in subways, airports, bars, churchs, schools, and other places where people gather.” The two opinion pieces that will be compared and evaluated in this essay are a New York Times article entitled, “If the New Supreme Court Stymies Gun Safety Laws, What Comes Next?” and a Los Angeles Times piece entitled, “Did the Supreme Court tip its hand on the blockbuster gun case it’s hearing Wednesday?” This essay will serve to examine how two opinion pieces covering the same topic with dissenting views each use tactical persuasive skills and classic debating methodologies to advance two different arguments.

In the New York Times article, author Adam Winkler, a professor of constitutional law, and the author of “Gunfight: The Battle Over the Right to Bear Arms in America,” begins the article by stressing the larger implications of the court’s decision, claiming that the New York case “could also signal the beginning of a new era of judicial hostility to gun laws.” With this in mind, Adam constructs this article with the assumption that the Supreme Court’s decision is likely to “stymie the growing political movement for gun reform” and therefore he suggests multiple different strategies to reposition the agenda of gun reform activists in order to give them a fighting chance after this major decision. Therefore, the central argument of the piece is that, in finding a new agenda after the Supreme Court votes to stifle the gun reform movement, activists should focus on policies that will reduce the violence that the influx of guns will bring through gun intervention, beef up gun law enforcement, and improve background checks. Adam claims that these recommended policy changes will not only help the gun reform movement survive, but it will also do more to reduce gun violence overall.

The supporting claims that Adam uses to advance his argument are mostly propositions of policy and fact. For instance, in explaining the effects of community-based intervention programs like Operation Ceasefire, Adam quotes statistical evidence that studies have shown that “a small percentage of the population, such as gang members and hardened criminals, commit a disproportionate amount of violent crime.” To further reinforce his argument, Adam’s evidence is that intervention programs have statistically proven to reduce gun crime and he suggests a policy reform that involves “bringing together community leaders, former gang members, and the police for outreach to those most likely to use firearms,” thus presenting a proposition of fact followed by a proposition of policy. To examine Adam's evidence, statistics of the effectiveness of gun intervention programs are presented through the website entitled, “Everytown for Gun Safety,” the largest gun violence prevention organization in America. Their research suggests, “a 2019 quasi-experimental evaluation of Richmond, California’s Operation Peacemaker program—a key component of Advance Peace—generated mixed results, as the program was associated with both a relatively large (43–55%) reduction in firearm homicides and assaults, and a relatively small (3–16%) increase in non-firearm homicides and assaults six years post intervention.” Therefore, while Adam’s evidence is sufficient and factual, it does not address the statistical increase in non-firearm homicides that occurred after the implementation of prevention programs. Additionally, Adam argues that “the gun safety reform movement should also prioritize strengthening federal efforts to crack down on gun trafficking,” a proposition of policy. To support this, he claims that the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or A.T.F, “is prohibited from using electronic databases to trace guns found at crime scenes and barred from electronically searching the records it does have.” Adam uses this to argue that “in a country where there are now more licensed gun dealers than branches of Starbucks and Mcdonald’s combined, these artificial restraints on A.T.F should be lifted,” which constitutes as a proposition of both fact and policy. When consulting outside sources on this claim, there were many articles that supported this notion including a Food News article that affirmed, “as of January 2020, there were more than twice as many registered firearms dealers in the United States as there were McDonald’s and Starbucks combined.”

Adam also argues that “the gun safety movement should launch a renewed push for universal - and better - background checks to make it harder for criminals and abusers to obtain firearms,” a proposition of policy. His evidence consists of the 2015 background check error that “allowed Dylann Roof to buy a handgun weeks before he shot and killed 9 people in the Emanuel A.M.E Church in Charleston, S.C.” as well as the incident in 2017 in which, “more than two dozen churchgoers were killed by another shooter whose domestic violence conviction wasn’t reported to the FBI.” This evidence of events in which the gaps in the current background check system came at the expense of multiple lives is worthy of supporting Adam’s claim for improved systems.

In examining the assumption the author makes about the audience, it is evident that Adam assumes that they are gun safety reform advocates who are interested in more ways of pushing their agenda after the Supreme Court’s ruling on Wednesday. Adam also assumes that the author agrees with his fervent prediction that the Supreme Court will in fact vote against gun safety laws. In terms of the gaps in Adam’s reasoning, he fails to acknowledge the multiple reports of the apparent split between both sides of the coin. A recent Washington Post article entitled, “In battle at Supreme Court over N.Y. gun law, a surprising split among conservatives,” states that “although some observers say it seems likely that the court took the National Rifle Association-backed lawsuit to overturn a century-old New York state law, which is similar to restrictions in seven other states, there is a surprising split among conservative judges and legal analysts that could influence how broadly the justices rule.” The article cites the fact that “the Supreme Court has turned down numerous requests from gun-rights advocates to get rid of government restrictions on carrying loaded handguns outside the home” as well as the 5-to-4 decision on the Heller case that “made clear that the Second Amendment is not unlimited and does not protect a right to “keep and carry any weapon whatsoever in any matter whatsoever for whatever purpose,” as evidence of the existing conservative split. The facts presented in this Washington post article serve as a counter to Adam’s strong conclusion that the courts overwhelmingly favor gun rights advocates. This creates a gap in his argument as he fails to entertain the possibility of the court deciding against the abolition of gun safety laws and what the impact of that decision would be.

Contrarily, author Aaron Tang, a law professor at UC Davis and a former clerk for Supreme Court Justice Sonia Sotomayor, centers his Los Angeles Times opinion piece entitled “Did the Supreme Court tip its hand on the blockbuster gun case it’s hearing Wednesday?” around the court’s recent rare action that may serve as a “tip” of their hand that “should give gun safety proponents reason for cautious optimism.” Aaron explains that when the losing party in a lower court would like to obtain the Supreme Court’s review, they file a “writ of certiorari” in which the first (and most imperative) page of this petition outlines the questions presented in the case and thereby governs the scope of the court’s analysis of the case. Throughout the article, Aaron mentions a slew of supporting claims that work to reinforce his central argument: his suspicion that the courts may side in favor of gun safety due to their change of wording of the cert petition question. One of his claims suggests that, “in the cases the court initially decided to hear this term, the justices accepted the exact wording of a question presented in all the cert petitions — all, that is, except the landmark gun rights case, New York State Rifle & Pistol Assn. vs. Bruen. In this case, they took the significant step of rewriting the question presented, and thus changed the trajectory of the case.” This claim is a proposition of fact and can be supported by reviewing the court’s docketing procedures which affirms this change in wording. Aaron further fortifies this claim by proving the grave significance of the act of rewriting a question by using another proposition of fact. Aaron opines, “Last term, out of 58 cases, the Supreme Court rewrote the question presented in just one. Tellingly, the justices then decided that case entirely on the basis of the revised question, holding that an earlier decision by the court does not apply retroactively...In this term’s gun case, the revision seems equally crucial.” He goes on to mention that New York’s current law prohibits individuals from carrying a gun in public unless they are able to demonstrate a “special need” in the instance of “self-defense.” In challenging this law, the original cert petition assumed the following question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” Aaron claims that if the conservative justices agreed with this question, they would have accepted it as is, which is almost always the case. According to the Supreme Court Press, Aaron’s claim of the rarity of the court’s rewriting of the question is affirmed. The Court Press states that out of the 5,910 petitions submitted to the court in 2010, only 165 cases were granted, and almost none of the questions were changed, thereby affirming Aaron’s evidence. Aaron goes on to claim that, “the record indicates just one thing: The court rewrote the question presented, limiting it to ask “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” This change refocuses the court’s analysis to the issue of concealed-carry instead of open-carry licenses. Aaron claims that, “in doing so, the justices have made clear that the specific factual circumstances surrounding the applications will be crucial for their analysis, otherwise the original question presented would have sufficed,” a proposition of fact. Ultimately, Aaron's examination of this act by the court points to the argument that “the court hints at an outcome that both sides in the gun debate should be able to live with.”

In terms of assumptions made about the audience, Aaron assumes that the audience is well versed in Supreme Court processes and proceedings. While he does significantly explain the processes that formed the court’s docket, he writes his analysis of this action by the court in a way that targets those who are highly educated and highly invested in the outcome of Wednesday’s hearing. An oversight of Aaron’s argument is that while the question was changed to focus on the individual rights of the original two petitioners, Aaron ultimately ignores the precedent set forth by 2008 and 2010 Supreme Court cases regarding gun laws in which an NPR article entitled, “Supreme Court To Take Up 1st Major Gun Rights Case In More Than A Decade” states, “in those cases, a sharply divided court ruled that the Second Amendment right to bear arms is an individual right, not one associated with the militia, as the court had previously implied. Those decisions marked a huge victory for the National Rifle Association and other gun rights organizations.” Precedent is a major concern of the Supreme Court as many justices in the past have been known to mold their decision around it. Additionally, there is an even more conservative court this time around which also speaks to the likelihood of the court’s siding with gun rights activists. Aaron ultimately rests his entire argument that the court’s decision may align with gun safety policies on their act of rewriting the cert petition question. While this is important and worth examining, there are ultimately several additional factors that run contrary to Aaron’s claim in which he neglects to address throughout this opinion piece.

The points of agreement within the two op-eds can be identified as the notion that gun safety advocates should not lose hope and that there is still grounds to fight for their cause and maintain optimism. This precept is upheld by both articles on the grounds of fact. Adam claims that finding a new agenda after the Supreme Court votes to stifle the gun reform movement should include more gun intervention policies, beefing up gun law enforcement, and improving background checks and that these are all methods that have statistically produced some level of success in the push for gun safety reform. Similarly, Aaron rests his argument that gun safety advocates have reason to feel optimistic about Wednesday’s decision on the fact that if the court’s strongly agreed with the question presented by the NRA’s cert petition, they would not have rewritten it to reflect a more fact-based and broad examination, as this is historically and statistically infrequent. However, the point of disagreement is that Aaron assumes that the hopeful optimism for gun safety activists will take place after the court rules in favor of gun rights laws while Aaron leaves the door open for the court’s decision to create an outcome that will favor both sides of the debate. Therefore, it can be argued that the point of disagreement is on the grounds of policy and value. While Adam believes that the conservative court’s will ultimately value the rights presented in the Second Amendment and will therefore implement policies to reflect this value, Aaron claims that the courts will instead value “public legitimacy” as he claims that the “fact-sensitive, centrist ruling” suggested by the court’s change in questioning will result in policy changes that benefit both sides of the coin as well as help with increasing the court’s very low approval rating.

As a refutation to Adam’s claim in “If the New Supreme Court Stymies Gun Safety Laws, What Comes Next?” where he assumes the likelihood of the court’s implementing their conservative lean in their decision on Wednesday, an important aspect that he fails to address that runs counter to his claim is the court’s approval rating. The September Gallup poll revealed that the U.S. Supreme Court’s approval rating has gone down to a new low of 40%. The poll also concluded that an overwhelming majority of Americans see the court as being too conservative. A more recent Washington Post article entitled, “Americans’ respect for the Supreme Court has dipped. That might affect the justices’ decisions this term,”references a recent 2020 book by political scientists Brandon L. Bartels and Christopher D. Johnston in which they argue that “while approval numbers may rebound, the longer trend shows a marked decline in trust and approval of the court. In other words, the reservoir of goodwill is draining.” The book also found that statistically, “when the court is issuing decisions that individual Americans oppose politically, many of those individuals become more willing to support overhauling the court.” Therefore, it is evident that there are larger systems at play beyond conservatism that will affect the court’s decision on Wednesday. Though Adam suggests that the court’s conservative positioning almost guarantees the trajectory of its decision, the larger implications of the court’s incredibly low approval rating and the overall growing distrust in the court ultimately run counter to Adam’s assumptions. In his op ed, he fails to address the politics behind the importance of the court’s public approval and how this will influence their decision. Therefore, Adam’s argument is limited, due to his failure to address other contributing factors in the court’s decision on Wednesday.

Reference Page

Home. Everytown. (2021, October 28). https://www.everytown.org/.

Los Angeles Times. (2021, November 1). Op-ed: Did the Supreme Court tip its hand on The blockbuster gun case it's hearing Wednesday? Los Angeles Times. https://www.latimes.com/opinion/story/2021-11-01/supreme-court-gun-rights-gun-control-concealed-carry-2nd-amendment.

Marimow, A. E. (2021, October 29). In battle at Supreme Court over N.Y. Gun Law, a surprising split among conservatives. The Washington Post. https://www.washingtonpost.com/politics/courts_law/supreme-court-ny-gun-law/2021/10/28/f21a5fc2-31cf-11ec-a1e5-07223c50280a_story.html.

More gun dealers than Starbucks in America. Food News. (2021, August 27). https://www.foodnewsnews.com/starbucks/more-gun-dealers-than-starbucks-in-america/.

Neuman, S., & Totenberg, N. (2021, April 26). Supreme Court to take up 1st major gun rights case in more than a decade. NPR. https://www.npr.org/2021/04/26/990846329/supreme-court-to-take-up-first-major-gun-rights-case-in-more-than-a-decade.

Savage, A. (2021, October 4). Analysis | americans' respect for the Supreme Court has dipped. that might affect the justices' decisions this term. The Washington Post. https://www.washingtonpost.com/politics/2021/10/04/americans-respect-supreme-court-has-dipped-that-might-affect-justices-decisions-this-term/.

Success rate of a petition for writ of certiorari to the Supreme Court. Supreme Court Success Rate on a Writ of Certiorari. (n.d.). https://supremecourtpress.com/chance_of_success.html.