On November 7, the U.S. Supreme Court will hear argument in U.S. v. Rahimi to determine whether laws that prohibit possession of firearms by persons subject to restraining orders are constitutionally permissible.
The ruling could lead courts to invalidate “red flag” laws in more than 20 states across the country. While we will not know the outcome until 2024, this court has already made it abundantly clear over the last 15 years that it will take every opportunity to curtail common-sense gun regulations, even as gun deaths skyrocket in the wake of their rulings. Gun reform advocates have been fighting on losing terrain for decades and need to take a new approach: focus on state level reforms that restrict the sale of guns in the first place.
First, gun reform advocates need to focus on the states, not the federal government. National gun reform requires an unlikely trifecta — Democratic control of the Presidency, House, and a filibuster-proof Senate. That’s happened once since 1994, it lasted for about six months, and even then Democrats were not able to pass any significant gun reform legislation. Without that hat trick, experience shows that our federal laws will not materially change, no matter how many shootings take place, or how heinous any particular shooting is.
It’s a vastly different picture at the state level — Democrats currently have complete control of seventeen state governments, representing approximately 140 million people. These states have shown a willingness to address gun violence. Advocates for gun reform should therefore start by focusing on the bird in the hand, not the elusive two in the bush.
Next, at the state level, gun reform advocates should focus on the sale of firearms rather than their possession. Each of the gun laws that the Roberts Court struck down addressed the possession of firearms.
In Heller, the Court found that a handgun ban in D.C. violated an individual right to keep and bear arms under the Second Amendment. Two years later, the court expanded this rule nationwide by striking down a similar handgun ban in Chicago. Last year in its Bruen decision, the court concluded that concealed carry permits for guns could not be premised on a proper need requirement. What’s the common thread? This court is extremely protective of an individual’s possession of firearms.
But the individual right to “keep and bear arms” is not the same as an alleged right to sell arms. Indeed, federal courts across the country have routinely found that there is no Second Amendment protection for selling arms, even after the Supreme Court issued its landmark decision in Heller. That is why people still go to prison for illegally selling guns — the Constitution does not protect that activity.
What can gun reform advocates do with that? We can pass laws to close gun stores in the 17 states where Democrats have unified control. As a candidate for the state Assembly in New York — one of those 17 states — I am proposing a law telling every corporate entity in the state to make a choice: either stop selling guns or stop doing business in our state.
Those entities that refuse to comply would be subject to dissolution or an injunction preventing further business activity in New York. This would essentially close stores that sell guns in our state, since virtually all such stores are corporate entities. That would not eliminate gun violence, but it would help to stem the tide by making it harder to get a gun.
Passing one law in New York may seem inconsequential. New Yorkers prevented from buying guns could simply drive to Pennsylvania and purchase them there. Fair enough — but if one state leads, others will follow. This has been true for various issues over the years. Think same-sex marriage, marijuana, paid family leave, and of course gun laws themselves. If other like-minded states enact similar laws, we could close gun stores in much of the northeast and the west coast. If the law succeeds in reducing gun violence, other states across the political divide may also become interested in following. In our polarized political world, it’s easy to forget that many common-sense gun policies like background checks and waiting periods already enjoy broad support.
This plan is on firm legal footing. This Supreme Court has shown no qualms about disregarding precedent to advance its agenda, but we cannot afford to duck fights with the Roberts Court. We need leaders who will bring creative solutions to address our gun violence crisis head-on, rather than hoping for the best out of Washington.
Scott Budow is a Democratic candidate for New York State Assembly District 52.