How Alito's concurrence smashes gun control

How Alito's concurrence smashes gun control
Erin Schaff/The New York Times via AP, Pool

The Bruen decision is an interesting, one. Not only does Justice Clarence Thomas lay down the law–literally, in this case–on the Second Amendment, but there are a couple of concurring opinions. Cam talked about the Kavanaugh concurrence last week.


But Justice Samuel Alito also wrote a concurring opinion and, in part, it can be read as a refutation of so many gun control arguments as a whole.

But Justice Samuel Alito, in his concurrence supporting the court’s ruling, made precisely the point that we’ve repeatedly been making. Not only are the statistics Breyer cites irrelevant to the constitutionality of the law, but they are also not responsive to the problems of widespread gun ownership that this law supposedly aims to solve.

Here are his comments, with the citations removed:

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.

What is the relevance of statistics about the use of guns to commit suicide? Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?

The dissent cites statistics about the use of guns in domestic disputes, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?

The dissent cites statistics on children and adolescents killed by guns, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, and bars the sale of a handgun to anyone under the age of 21.

The dissent cites the large number of guns in private hands — nearly 400 million — but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.

Alito is making practical observations here about the effectiveness of the law, and he is spot on. The relevant question here is what exactly do you expect the law to do? Gun-control laws are big over-promisers. Amid a mess of emotional argumentation, few people ever actually do the thinking about what a given measure is going to accomplish in the real world.


However, Alito’s comments, while directed at the dissenting opinion, provide such an incredible rebuttal of what we see from gun control as a whole.

For example, Breyer’s dissent essentially puts all gun-related problems into a single bucket, then acts as if any gun control measure you care to name will work in reducing all of those issues.

Take the bill President Biden just signed, as an example. None of that would have prevented either Buffalo or Uvalde, yet it was passed in part as a response to those. The dissent included statistics about suicide and domestic violence in a case that’s clearly about whether we have the right to carry a firearm outside of the home. As Alito noted, it makes no sense to view it that way.

But that is how gun control is generally packaged. It’s presented as the answer to all of life’s problems, so to speak, despite the fact that suicide is a mental health issue and domestic violence is a problem that exists well beyond firearms, just to use two of the stated examples.

Frankly, it’s ridiculous, but so is the idea of gun control itself.

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