Buffalo. Uvalde. Those are the sites of just two of at least 277 reported mass shootings in America in 2022 alone — spelled out in black and white in the dissenting opinion in one of the most consequential Second Amendment cases the Supreme Court has ever decided.
That is certainly not how Supreme Court dissents are usually crafted. But in his final days on the court before retiring, it is clear that Justice Stephen Breyer did not want his fellow justices, nor the American people, to look away from that deadly reality. Breyer understood the assignment, and the fact that the nation’s safety depends on it.
Breyer, in uncharacteristic form, focused unflinchingly on the gun violence that is happening in real time. He also laid bare the fallacies and disingenuous reasoning of the court’s majority in striking down a New York state law that required those seeking licenses to carry firearms outside of the home to demonstrate a need to do so — in the process, imperiling similar laws in Massachusetts and elsewhere.
In a dissent joined by Justices Sonia Sotomayor and Elena Kagan, Breyer wrote that he cannot agree with a decision that strikes down such laws “without considering the State’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision.”
Breyer, who makes his home in the Bay State when he’s not on the bench, is by no means a judicial activist. In fact, he’s perhaps the most professorial justice on the court, often engaging lawyers arguing before him in long, complex hypotheticals and citing obscure and ancient legal treatises in his opinions.
If anything, his professorial approach can make him seem removed from the realities of how the rubber of the current state of the law and the political climate meet the road. His recent book and speeches promoting the idea that the Supreme Court should not be seen as a partisan institution seem to have completely missed the viciously vitriolic political battles of the last several Supreme Court confirmations as well as efforts by the last president to have the high court do his antidemocratic bidding.
But in his dissent in the gun case, Breyer took a different tact by placing the cold, hard reality of our nation front and center.
“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms,” Breyer wrote.
In a separate opinion concurring with the court’s majority, Justice Samuel Alito, unconcerned that attacking a fellow justice at the sunset of his career on the bench might be a bad look, swiped at Breyer for mentioning the recent spate of mass gun violence at the opening of the dissent. But Breyer clapped back, also in an uncharacteristically direct way.
“[Alito] asks why I have begun my opinion by reviewing some of the dangers and challenges posed by gun violence and what relevance that has to today’s case,” Breyer wrote. “All of the above considerations illustrate that the question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts.”
In short, Breyer called out the court’s majority for the very judicial activism that conservatives often accuse its Democratic-appointed justices of. And he’s not wrong.
Why the late-career alteration in Breyer’s traditional approach? Perhaps it’s a signal to the justices who will probably spend the rest of their high court careers issuing far more dissents than majority opinions in such high-stakes cases: Sotomayor, Kagan, and soon-to-be Justice Ketanji Brown Jackson.
Perhaps Breyer saw this as one of his last shots to secure his legacy — as a pragmatist willing to step out of his own comfort zone to show that the Constitution allows room for both the right to bear arms and the right of children not to be gunned down in their classrooms.
Maybe he is holding out hope that the court will again have a majority that won’t bend or ignore the text of the Constitution, the facts before the court, or the reality in which that law and those facts exist.
Whatever the reason, I am grateful to Justice Breyer. And I hope that his colleagues, and the nation, are listening.