When we left the Second Amendment, we had hashed through its interpretive history, and discussed the NRA(&co)-catalyzed shift: from an obsolete amendment protecting militia, to today’s constitutional colossus wielding an absolute, individual right to bear arms.

The last case we covered in this madcap trajectory was 2008’s Heller, which played a key role in that expansion by enshrining a new individual right. It made all its novel determinations under the guise of original constitutional intent.

Here in part 2, we’ll confront the most recent, larger-still SCOTUS expansion from a 2022 case. We’ll jump from there to just one of the many consequent problems created by lenient gun regulation: Stand Your Ground laws. Hereinafter, I’m going to call them SYG for our sanity (mostly mine, re: typing). Several shootings invoking SYG laws (or the related ‘Castle Doctrine’) have recently made headlines, and there’s been at least one more case since we last spoke. All four shootings targeted innocent, unarmed young people, lost but behaving legally and non-threateningly.

(And since guns are our subject, I’d be remiss not to make mention of the literally countless mass shootings that’ve also transpired over the course of writing parts 1& 2).

The New Sheriff In Town: NY State Rifle & Pistol Assn. v. Bruen

In 2022, an even more conservative SCOTUS overturned a New York law requiring that anyone seeking an unrestricted license to carry a concealed firearm show “proper cause” for doing so.

Justice Clarence Thomas, whose ascendency to SCOTUS was noted in part 1 as a huuuge boon to the pro-gun movement (as much as it was a blight on others), wrote the majority opinion. Bruen held that the (very reasonable, in my humble opinion) New York law was unconstitutional, because it prevented (by requiring a brief explanation on an application) good, law-abiding citizens with ordinary self-defense needs (like carrying a hidden gun in public) from exercising their Second Amendment rights. Makes sense to meee!
Such “facial challenges,” cases challenging the constitutionality of a law’s entire existence, also act on any current or future laws that resemble the law in question—so in other words, Bruen changed the permissible bounds of all gun regulations nationwide.

To withstand a challenge under Bruen’s new test, advocates for any and all gun laws must look back into history and show the law is consistent with our country’s (professed) “historical tradition of firearm regulation.”

Per our previous historical conversation, I say to this: AHH WHAT THE EVERLOVING FUCK

In practice, this means that every gun regulation could be imperiled unless legislators, parties to court challenges, gun control advocates, can point to historical examples that mirror the law in question.

On an abstract level, this creates an inevitable existential crisis: if a perfect, preexisting, historical law existed, there’d be no reason for the new, duplicative, now-challenged law to have been passed in the first place (and vice versa).

But there are practical issues even if I dismount my high horse.
When looking to “history,” when and where is the cutoff? After all, some of the gun laws now open to challenges are themselves 60 years old, so presumably, qualifying “history” only exists before that era. But looking back ~a century and beyond for comparable legislation is a fool’s errand, because comparable weapons, commercial structures, NRA-created risks, and societal norms didn’t even exist yet. Looking for on-point assault weapon bans or domestic abuser prohibitions or internet sale regulations pre-1950s? Best of luck, chumps!

And of course, I have to reiterate, ceaselessly until I’m dead, that the “original” Founders disavowed this “originalism” model vehemently. Recall TJ’s quote comparing a legal interpretation not allowing for societal progress to forcing a man to wear his childhood coat. This sanctified historical approach leaves little to no room for the very concept of progress under the same governmental structure. We may remind Black Justice Clarence Thomas, female Justice Amy Coney Barrett, etc. how integral progress under the same Constitution is…

The holding doesn’t just prevent progress. It also rolls back the existing protections (which themselves weren’t nearly enough to prevent recent years’ shootings, so…). The post-Bruen cases that’ve already struck down protections also illustrate how the new standard sets laws up for failure. Already thus overturned are federal laws preventing domestic abusers from owning guns and New York’s gun law preventing firearms in public places (including, e.g., Times Square and the subway system). A Bruen challenge on age constraints for purchasing AR-15-style semi-automatics is also pending.
Lower courts nationwide are struggling to apply the new ruling, and struggling to reach consistent decisions doing so. Judges have pointed out that they, and their colleagues, are pretty ill-equipped to study, assess, and accurately apply historical attitudes on guns to new legislative contexts. At best, as with all originalist ventures, whatever historical theses can be pieced together are incredibly subjective, manipulable, and of questionable relevance.  

A GW Bush appointed Judge criticized Bruen, when forced to apply it recently, for forcing the creation of “an entirely bulletproof and unrestrained Second Amendment.”

As are so many conservative policy movements, today’s Gun Movement is the product of a vocal, disproportionately weighted minority—not real people.

Though concerns for gun safety, and human safety, unite real people on both sides, GOP leadership and the NRA have worked to silence their party’s unifying safety cry;

instead casting gun control as a menacing strawman to justify their push, in false “response,” to pulverize safeguards (and make $$$)

This movement has facilitated expansion and creation of a whole lotta dangers.

Stand Your Ground Laws
The first SYG laws predate Bruen, but not by very long. Florida passed the country’s first SYG law in 2005.

SYG operates under the principle of shoot first, ask questions later. It gives somebody a legal right to use deadly force (by guns or otherwise), outside their own home, if they “reasonably believe” they’re threatened.

Like in other iterations of the self-defense justification, SYG claims are strongest with evidence of an actual threat posed by the eventual victim, actual injuries to the eventual attacker, and other evidence of the interaction supporting the belief that the victim posed an imminent threat. But that also begs the question: why pass SYG laws when self-defense provisions already reasonably cover defending yourself against actual threats…?

SYG’s vindication of deadly force applies EVEN, as is key here, if what you initially perceived as that deadly force from them was NOT actually force or aggression at all. With a “reasonable belief,” you can still legally kill an innocent victim—as a kind of ‘pre-retribution’ for what you thought they were going to do.

To qualify for SYG’s liability-shield, that “belief” of a threat is enough.

Subjectivity of belief, even with the standard’s grounding in “reasonability,” varies further in relation to what’s “reasonable” in different regions, racism, regressive social values, etc.

And the more people lock in, fear-monger, perpetuate and voice their biases, the more “reasonable” that fear -> violence response becomes in any given society (which is also why every additional state law, court ruling, viral TikTok, local op-ed permeates through the rest of the country pretty quickly). Deaths and injuries covered by SYG laws disproportionately befall Black and Brown victims.

Looking at the recent cases, the expansive threat assessment is (ironically) not very discriminating—though I of course don’t mean that in the good way^. For reckless gun owners, there’s no benefit of the doubt. Just about anyone can and will be presumed a threat, from teenage girls in cheer uniforms, to a Black boy knocking respectfully at front door, to a white woman looking at directions behind her own steering wheel, to a child playing hide-and-seek. I say this with the caveat that we technically haven’t seen these cases’ legal resolution yet (and thus whether the SYG-esque defenses will be effective), but still.

Either way, for the victims (and potential victims) living in any SYG jurisdiction, the heightened risk of deadly force applies just about anywhere, even in public spaces and places you have a legal right to occupy.

Many of us were first acquainted with this risk, and SYG laws, when quintessential Florida man George Zimmerman shot and killed Trayvon Martin, a Black high schooler. 17- year-old Martin was walking around his dad’s neighborhood (unarmed with any weapon and not engaging in any threatening behavior), talking on the phone with his girlfriend, when Zimmerman killed him. Florida’s SYG laws prevented Zimmerman from facing any charges for killing Martin.

It’s interesting to compare the Bernie Goetz self-defense case to modern SYG fact patterns. Though Goetz pre-dated SYG, his case would’ve been a perfect candidate.

For those of us only familiar with Goetz from “We Didn’t Start The Fire”—Bernie Goetz was a scrawny electrical engineer living in 1980s NYC who, after allegedly being accosted by four young Black men attempting to rob him on the subway, shot them with a gun he had concealed on his person.

The Goetz case illustrates how times have changed: on the one hand, in 1984, Goetz’s racial animus, so evident through today’s lens, played little into the narrative. On the other, the legal world pre-SYG didn’t presume Goetz’s violence was acceptable, and didn’t officially shift guilt to the victims, giving the deceased an impossible burden to prove otherwise.

While the Goetz case was still controversial in its own right, Goetz’s fear that he faced a risk of deadly force against him on the NY subway was more unanimously deemed “reasonable.”

New Yorkers by and large defended the subway vigilante at a time when NYC was notorious for violent crime (averaging ~6 murders/day).

Most believed his account of menacing behavior, his assessment of their interactions with riders at other end of car, and believed that four had surrounded Goetz and demanded money. (As long-time NYC resident this decade, -I’ve- been accosted more than once on the subway, and feel fear even more frequently therefrom. But that said, I’ve never turned to deadly force…!)

Goetz’s self-defense claim successfully exonerated him for the deaths and injuries, and he was only convicted of criminal possession of a weapon (now a virtually obsolete crime itself)—for which he served eight months. The outcome shows the efficacy—and the risk of racist fallibility—in standard self-defense provisions, without expanding the defense to SYG’s near presumption that murder is justified.  

Goetz, Zimmerman, and the four recent shootings all illustrate the last fundamental principle now enshrined in SYG laws (and next section’s Castle Doctrine): the eventual aggressor has no duty to retreat. Many other self-defense-related provisions require someone who feels threatened to attempt to leave or deescalate the situation before resorting to violence themselves—but SYG has no such requirement. Someone in Zimmerman’s position, e.g., can act aggressively and taunt their soon-to-be victim in response to their alleged “threat,” ultimately adding insult to injury and shooting them.

Today, ten U.S. states and counting boast their own SYG laws, with no duty to retreat.

Castle Doctrine
Three of the four headline-making shootings within the last month took place on the shooter’s home property. We must thus address the Castle Doctrine, another sibling in the self-defense and SYG family. The doctrine’s name and principle stem from the premise that “a man’s home is his castle” (presumably, a woman’s is hers too)—and therefore, a perceived attack on someone in their “castle” is legal justification enough for deadly force. The eventual victim’s mere presence can be enough to vindicate their killing, without them posing an actual threat, without wielding deadly force themselves, and without any duty on behalf of homeowner to attempt retreat or de-escalation first.

As for the four recent cases:
Ralph Yarl, the unarmed Black teen shot for knocking on the wrong door when picking up his younger brothers: The 84-year-old white man (the homeowner Andrew Lester) who shot him was arrested, but released on moderate bail. Missouri has SYG laws, and Lester has already asserted them in defense to his felony assault charge. In this case, we’ll have to wait until the trial (or negotiations) to see if Lester is exonerated under SYG.

In the case of the Texas cheerleaders shot after practice in a grocery store parking lot for approaching the wrong car: Pedro Rodriguez Jr., the adult man who shot at them (and left one in critical condition) was charged with “deadly conduct,” a third-degree felony in Texas. Third degree + this wishy-washy “deadly conduct” charge seems low, especially as evidence has shown that Rodriguez continued shooting at the girls even after they retreated, wounded, to their own car and started driving away. Texas has also adopted SYG laws. We shall see…

The death of 20-year-old Kaylin Gillis, who took a wrong turn into a driveway: the old white male homeowner who shot her, Kevin Monahan, is still in custody for second-degree murder in upstate New York. New York doesn’t have any SYG laws, but the Castle Doctrine does apply, meaning Monahan had no “duty to retreat” before using deadly force on his own property. Gillis, too, was driving away when Monahan fired the fatal shot—the victim’s retreat should play into any self-defense assessment.

The newest case, where a 14-year-old girl was shot playing hide and seek: the Louisiana girl was hiding on her neighbor David Doyle’s property when Doyle heard a noise and opened fire on her. Doyle, a 58-year-old white man, has been charged with multiple counts of assault and battery. Louisiana also has SYG laws. I am sensing a more-than-anecdotal correlation between SYG laws being on the books and citizens feeling dangerously comfortable shooting at people.

Violence begets violence.
This last refrain is more opinion than law, but an opinion I’m more emboldened to say as violence proliferates. I also have to thank the late Judy Heumann (subject of my first newsletter) for echoing these sentiments and further empowering me to speak them.  

From the Black Panthers’ ill-fated Second Amendment strategy in the 1970s, to the “self-defense” rationale behind SYG, to every “good guy with a gun” who’s failed to prevent mass casualties—we see time and again how violence, even as a means towards noble ends, often backfires in a flawed system populated with bigots. Within those same imbalanced power structures (and honestly, probably without them too) violence just normalizes and begets more violence.

Let’s debunk that good guy with a gun fallacy once and for all—it’s kinda like those prepper types, or Branch Davidians @ Waco, who claim to arm themselves against some impending government assault: (1) no one weirdo family is going to fell an entire nation state’s resources, and (2) the obsession with violence becomes a self-fulfilling prophecy. All the while, they’re creating more comfort with violence while amassing means to escalate domestic abuse and all other social disputes, by having killing machines at their disposal.

I know I carry my own bias (of being a relatively small, asthmatic, non-muscular woman, who would be at a disadvantage in a hierarchy of physical-aggression capacity).

But the better strategy, imo, is to get better people in government, build better structures and training and education to protect competence within and without the government, cut military and law enforcement weapon spending to allocate elsewhere, and create means of conflict intervention on both sides (govt and civilian) that don’t rely on some dangerous, primal violence hierarchy.