There is a dance taking place between the U.S. Supreme Court and state and local governments, with Los Angeles at the forefront. Cities, notably L.A., are looking for ways to curb gun violence, while the court has adopted a standard for reviewing gun regulations that discourages innovation.
The stakes could hardly be more real. As of late September, nearly 1,000 people have been shot this year within L.A.’s city limits – down from 2022, but still a shocking number. Those shootings include a chunk from so-called "ghost guns," weapons that are assembled from kits purchased either over the internet or from dealers.
Given the prevalence of gun violence in the nation’s second-largest city, Los Angeles has long sought a leadership position on gun regulation. It has aggressively pursued gun buy-back programs that have taken some 18,000 guns off the street since 2009 (though the effects of those buy-backs on crime are disputed). It has closely regulated the issuance of concealed weapons permits, and it has led most of the country in addressing ghost guns.
The ghost gun effort is revealing. In 2021, after ghost guns began turning up at crime scenes in Los Angeles, the L.A. City Council began requiring registration for gun parts, known as precursors. Perhaps as a result, the number of ghost guns connected to crimes in Los Angeles fell in 2022, dropping from 1,921 to 1,706.
That is the type of gun regulation that L.A. prides itself on pursuing.
"L.A. is at the forefront" of municipal gun regulation, said Detective Pat Hoffman of the LAPD’s Gang and Narcotics Division, which includes the department’s gun unit. "We’re not willing to leave any stone unturned."
That’s squarely in line with public opinion and political leadership in this overwhelmingly blue city. The public’s support for restrictions on gun purchases reflects the dangers that guns pose to a city that pioneered drive-by shootings and once buckled under more than 1,000 homicides per year.
Gun restrictions have not eliminated homicide by any means, but today’s L.A. – with its bevy of gun regulations – is much safer than the city was in the 1990s.
But even as Los Angeles has been experimenting with new policies, the Supreme Court has been trying out new ideas for thwarting those efforts.
In the 2008 case District of Columbia v. Heller, the court recognized an individual right to possess a firearm, dismissing the argument that such a right was rooted in the colonial history of militias (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.").
But the court also specifically acknowledged that the right to bear arms co-existed with the government’s right to regulate guns. To take just one obvious example, the right to bear arms does not permit a gun owner to bring a weapon into the Supreme Court itself; the court checks visitors for guns as they enter.
As the majority emphasized in Heller: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Heller was the late Justice Antonin Scalia’s work, and it had its critics. But the torch then passed to Scalia’s lesser intellectual light, Justice Clarence Thomas, who crimped his former colleague’s formulation. In 2022, the court’s conservative majority joined Thomas’ opinion in New York State Rifle and Pistol Association v. Bruen, and it laid out its new test for upholding gun regulations.
"To justify (a) regulation, the government may not simply posit that the regulation promotes an important interest," the court concluded. "Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’"
What, one might ask, is this nation’s "historical tradition" when it comes to firearms? Well, the founders would have denied Thomas the right to own a weapon, for instance, since the nation’s historical tradition included prohibiting Black people from possessing a firearm. Presumably, that is not the tradition Thomas invoked.
But what of firearms registration? What of gun buy-backs? Or efforts to track ghost guns?
It’s hard to imagine that the founders could have foreseen those innovations, so the court has indicated that it will likely view them skeptically. Moreover, the court’s so-called "Bruen test" leaves no room to consider the impact of the regulation on the public.
"It’s totally bizarre," said Adam Winkler, one of the nation’s foremost scholars on the Second Amendment. The court’s standard suggests that the only germane factor is whether there is a historical analogy for the contested regulation.
Winkler, a UCLA law professor and author of "Gunfight," noted that the effect of the court’s approach is to discourage new approaches to regulating guns since novelty, however effective, is more likely to run afoul of the prohibition against regulations that are not part of the "historical tradition."
As with other attempts to impose "originalism" on the court’s jurisprudence, this one will meet its test in reality – and perhaps soon. The court has taken up a case in this term that will address the constitutionality of laws that bar perpetrators of domestic violence from buying and owning guns. Those are popular laws – there’s not much of a constituency for arming domestic abusers – and the court may not want to strike them. But that may require re-examining the Bruen test, since even enterprising originalists will have to look hard to find a historical tradition of denying domestic abusers access to guns.
Applied to such laws, the Bruen test forces today’s lawmakers to adopt the imagination of predecessors who never imagined assault weapons, computerized background checks or a national database of domestic violence offenders.
As Winkler noted, "It’s just kind of stupid."
Meanwhile, Los Angeles – and California more broadly – will continue to experiment with gun regulations: registration, taxing, expansive definitions of "sensitive places" where guns might be limited or barred, and other ideas that may emerge. Those efforts almost certainly will be challenged, and the court’s standard will be tested.
Police will enforce what they can while the legal battles continue. As to who will prevail in the end, Detective Hoffman spoke for many.
"It’s out of my paygrade," he said.
This article was originally published by CalMatters.
Jim Newton
