Armed with Reason: The Podcast - Episode 23
A busy GVP week involves conflicting SCOTUS decisions on domestic abuser access and bump stocks -- "This is really low-hanging fruit"
Despite summer kicking in — and Armed with Reason about to take a brief July break itself — it was an unusually busy week for the gun violence prevention world. So GVPedia leaders Devin Hughes and Caitlin Clarkson Pereira decided to jump on the mics and update us about the (seemingly incongruous) recent Supreme Court decisions on striking down the bump stocks ban while also upholding the Rahimi decision. They further discuss the dead-end thinking of Justice Clarence Thomas’ “originalism.” Plus, Devin details The New York Times’ recent expose on the gun lobby’s favorite new sloppy researcher, William English.
You can listen to the podcast via our channel on Spotify as well as watch on YouTube, or read the transcription below.
We hope you’ll tune in and let us know not only what you think, but what you’d like to hear more about in the future. And if you are interested in recommending a guest, or even being one yourself, please let us know!
PODCAST TRANSCRIPTION:
Caitlin: Hi everyone. Thanks for joining us here on the Armed With Reason podcast, brought to you by GVPedia. The past two weeks have been very interesting on the gun violence prevention front, due to two rulings coming from the Supreme Court. The first was a ruling on bump stocks, excuse me, in which the Supreme Court overturned the previous ban imposed on this accessory. Just for anybody who isn't really clear, the point of a bump stock — they exist to allow semi-automatic rifles to fire hundreds of bullets per minute, making it very similar to a machine gun. And it actually was the Trump administration that amended federal regulations to clarify that bump stocks fall within the federal definition of a machine gun, and are therefore illegal under federal law, which as of a couple weeks ago is no longer the case.
And the second ruling was on gun ownership for domestic abusers. This was something that, a lot of folks were sort of waiting on the edge of their seats for. Thankfully, the court ruled that when an individual has been found to pose a threat to the safety of another person or people, the individual's right to possess a firearm can be taken away. The majority opinion was authored by Chief Justice Roberts, and the only one to dissent was Justice Clarence Thomas.
So Devin, an interesting start to a very hot summer around the country. I'm sure these these things have only made things — I don't know if exciting is quite the word — but have given us a lot to think about when it comes to gun violence, gun violence prevention, and the impact that court rulings, especially from the highest court of the land, have on the work that we do and the safety of people in this country. But today here on the podcast, I figure it'd be great if you and I can just have a conversation about these two rulings. And to start us off, if you want to give us a quick synopsis on the impact of both of these rulings.
Devin: Yeah, sure. And great to be here inside. Outside is more than 100 degrees. Inside is definitely preferable for now and probably the next few months. So yeah, in terms of the two court cases.
The one on bump stocks was 6-3, to repeal it; and the one on domestic violence restraining orders was 8-1 for upholding it. The bump stock decision wasn't as quite a big a surprise to me, unfortunately. There's this ruling back, I believe it was in the '80s, known shorthand as Chevron, where it basically allowed federal agencies to have a reasonable amount of discretion in terms of regulations, if Congress had not specifically decided on something one way or the other. And when it comes to bump stocks, as was mentioned in I believe it was Justice Sotomayor's descent, where it's like if it looks like a duck, quacks like a duck, walks like a duck, it's a duck. And with bump stocks it basically turns a gun into a machine gun, where with a machine gun you pull the trigger one time and bullets keep coming out until you stop pulling the trigger. For a semi-automatic, it's one trigger pull, one bullet comes out. Of course, people can pull a trigger very quickly. But with a bump stock, you basically do the one trigger pull and then the stock kind of pushes against your shoulder, pushes the gun back and forth against your finger; and then creates the very close equivalent of a machine gun. So it's still like one trigger pull, a bunch of bullets come out.
Now, the majority decided that no, that's not actually a machine gun because it's the gun hitting your finger a bunch of times, which counts as a bunch of trigger pulls and their velocity. And they basically rule that the ATF had overextended its bounds — while still leaving the area open for Congress to take action to ban them. Which a bill quickly emerged in Congress to do that, and it was quickly put down by Republicans in Congress, even though the original bump stock ban, as Caitlin mentioned, was during the Trump administration, and even Republicans during that time were like, yeah, this is a really dumb idea. This shouldn't be going on. So the ruling itself, like in terms of its impact, shouldn't have been all that major. It was just like, hey, the ATF has overextended its bounds. Congress can do something. Of course, Congress in its current composition wouldn't, but it still left that pathway open.
The more concerning part of it is it's basically limiting the ability of the ATF — and likely other federal agencies going forward — to respond to [gun] innovations. Because back in the 1930s, when you had the initial National Firearms Act that covered machine guns, nobody was thinking, Oh, somebody is going to create this device to bump a gun, the gun into somebody's figure and cause the same thing. And so it was an update to technological understanding and a response to how technology is trying to make guns ever more lethal. And this decision curtails the ability of the ATF and others to respond to those technological innovations that have deadly consequences. So it's more severe in the implications than the specific ruling itself.
Also in terms of the public health impact, while it's certainly dangerous, it's not going to have that major an impact most likely on top level numbers. Because, first of all, most guns used in crimes are handguns; and also bump stocks were used like in one high profile mass shooting. There may or may not have been a couple others that didn't reach a high profile status. But they weren't used extensively in crime, largely because they're unwieldy and almost like a novelty product — even though for a mass shooting, it definitely increased the lethality of the Las Vegas mass shooting. So it's not going to have the most profound impact, but it's still likely to have some negative impact. And kind of another reason on that is that we're getting auto sears on handguns, which can turn handguns basically into automatic firearms. And so in a way, the technology of the bump stock is already outdated. And we're going to yet another version of automatic guns that's even more dangerous to a degree. And this ruling also probably will impact the future regulatory capacity on stuff like that as well.
Caitlin: And well, I'll throw in my my brief thoughts on this. For me it's very surface level, right? We don't need bump stocks for anything. like nobody who says, Oh, I go on hunting trips every year with with my brothers and my cousins. And, you know, we bring our trusty bump stocks. Like what? First of all, if that's the case, what are you doing hunting? And second of all, that's not hunting. That's like just slaughtering a bunch of animals in the woods. So. I cannot fathom sitting up there and being one of the six people that says, Okay, well, because the semi-automatic rifle is not manufactured as a machine gun, and this piece causes the gun to move rather than the trigger to be in a continual pull motion that it doesn't count, it just... Some things are just beyond like legal nuances. And to me, that's what this is.
And especially because we have seen the havoc that it can wreak. The Las Vegas shooting in October of 2017 is the perfect example of that. And unfortunately, we don't know when the next shooting of that magnitude may or may not happen. History has told us, though, that the mass shootings just keep getting worse. So at some point somebody will out-do that, which is really scary. And for the ability for somebody to get a gun accessory easier because it's not banned who could then kill more people? It's just not worth it, especially for a tool that has no benefit for for anything really.
Devin: Yeah. And like even if you look at like the military, which has like all their firearms have a switch that allows them to go like semi-automatic burst mode or fully automatic. And all the Army training manual manuals and such say like 96-plus percent of the time you should stay in semi-automatic fire mode because it's more accurate. And a bump stock's going to be even more inaccurate than traditional automatic. So if you're looking like for self-defense or something, like, you're going to be less accurate with it. The only reason you would have a bump stock is if you're looking to kill a bunch of people in a crowded area in group where accuracy is of secondary importance.
Caitlin: Right.
Devin: And basically anybody who states they need a bump stock should likely be disqualified from having a bump stock. Like, there is no plausible reason for this other than increasing lethality. It doesn't help anything.
Caitlin: And life is not a video game, right. Like these are these are real people with real lives and real families. And I can't imagine being a survivor of one of the 60 people killed in the Las Vegas shooting and having this come out when it felt like maybe there was some semblance of progress that happened when the Trump administration said there's no reason for these to be available — and then to move backwards years after that.
Devin: Yes. At the time, basically everybody except for like the most extreme gun rights activists agreed that these are stupid. Like, there's no purpose to them. And as bad as the ruling was, like to a degree it's even more shameful that, like the Republicans in Congress are like, Yeah, no we're not going to do this now — even though like the court like provided that open door for Congress to say something, and Congress was.... Even though in 2017 there was basically unanimity on this, they're like, Yeah, no, we're too beholden to do anything on this.
Caitlin: It's further proof of people constantly being given the opportunity to do the right thing and consciously choosing not to. But that's a podcast for another day. What about the impact of domestic abusers having access to guns?
Devin: Yeah. So there's multiple studies out there that find that stuff like domestic violence restraining orders, that prohibit having a gun, purchasing a gun, are quite important, because these come about in a moment of crisis when the risk of lethality tends to be at the highest. And in these specific cases, you can't wait for a trial, say, two years later to find something. There's a direct threat, it goes to a judge, there's due process there. Like somebody can appeal afterwards if they feel they've been wrongly accused. There's a process there, but it prevents the additional lethality that the presence of a gun is going to have with domestic violence. Like a gun in a domestic violence situation makes it five times more lethal.
And so with the decision being 8-1 in particular, it was a relief to a degree. I wouldn't say it's a victory, because it's like in any sane universe this would not even be a discussion. But it's a relief on the public health grounds that, like, these are essential tools. And if you can't have these, like the domino effect I feel would be catastrophic. And so that's kind of the public health aspect of this. And I'm curious on your thoughts before going into the more legal implications of the 8-1 decision, kind of what it means for originalism, as it were.
ICYMI: United States v. Rahimi
Caitlin: So yes, for me, again, sort of similar to my bump stock theory. This is really low hanging fruit. And if we can't see somebody who has been identified as a threat, particularly to the people that he is related to, resides with, is in close contact with, people who may depend on him for where they live, for financial situations, for all of the horror stories that we hear as to why domestic violence incidents end up in tragedy because people don't have a path to leave these relationships — of course they should not have a gun! I mean, to me it's one of those one plus one equals two. And unless you're on another planet, like, nobody is going to prove otherwise.
There was a large part of me that did not think that we were going to have a positive outcome of this ruling. And I think the amount of who used the word relief, I think the amount of relief that a lot of victim advocacy groups showed when they were releasing quotes in press releases or they were on the news or in podcasts since, like that relief certainly is palpable. But again, it's so unfortunate that we've put people, particularly women and children in positions, and not exclusively. Like there are some situations where this would apply to women. But where the men in their lives should not have a gun because, as you said, the situation they're in with a gun could lead to being five times more likely for that person to be killed. Murdered. Yeah, and I don't know if it brings me relief necessarily as it does... it's hard, I think, as a woman, to have the right words in these situations, right? Like, I want to have faith in the Supreme Court to to do the right thing to protect the most vulnerable. But unfortunately, history, especially recently, hasn't proven that.
And, you know, not to go down a whole 'nother rabbit hole, but the day we're recording this is two years since the Supreme Court said, you know, women don't have the right to decide what to do with their bodies when it comes to pregnancy. And so as far as what my right is to do as a woman and protecting myself from an abuser who has a gun, part of me thought that we might head down that same direction. So, I did read — I wish I could recall which organization it was — there was one press release that came out that was was very blunt. And instead of saying, you know, words of praise and gratitude, it was just like, listen, this is the bare minimum. Like there's still so much that we need to do. We can't just take this as a victory today. There's an infinite amount of work that needs to continue on. We don't have time to stop and celebrate this, because there are so many people in dangerous situations, and we need to find a way to keep them safer than they were yesterday, than they were today after this ruling. And I certainly echo that sentiment.
Devin: Yeah. And like in terms of the specific ruling, I tend to agree with that blunt assessment where it's like this, step over this bar and the bar is laying on the ground, and you still have a Supreme Court, like, I really want to limbo, and like doing their utmost to just barely crawl over the bar. But I do think like where the relief comes from is, at least to me, like kind of the pushback against Clarence Thomas' originalism that he showed in the Bruen case — which also occurred two years ago and threw lower courts into disarray, because it was a history-only test, except for the history that we don't like, so therefore that doesn't count type approach that was unworkable.
And, Justice Brown, I wrote in her, there are so many concurring opinions and such like I think it has probably the record for the most concurring opinions. Like every justice had something different to say. And she has like, look, we have the proof, like with these lower courts, that they don't, like, Bruen's unworkable. The proof is there. While the main majority opinion was like, Oh Bruen's not unworkable, you just didn't understand what we were saying. And I think it's extremely telling that the author of Bruen was the one dissent. And when overturning the Fifth Circuit Court's opinion that had struck down the domestic violence restraining order stuff, he was like, No, they understood properly. And so it's like the author of the opinion of the Bruen opinion is like, No, they heard me correct, like, this is what was meant. And all the other justices are, like, kind of scrambling away to put that insane genie back in the bottle to where all of them are like, yeah, this is too far. We didn't intend this. And so we're going to blame lower courts for not understanding us.... And so there was a high degree of ass covering.
Caitlin: As per usual.
Devin: Yeah. And the sort of originalism that Thomas has practiced, and there's kind of a rejection of — which is important — but who knows how far that rejection goes, which we'll still probably, unfortunately, find out in coming cases, is like the project of originalism at its core level is basically, like, the only opinions that matter when it comes to questions of law are those from propertied white men, 200-plus years ago. And that's where you have to stop. If they didn't think of something, you can't do it. And morally, that is insane, because — particularly with the domestic violence cases — back then, domestic violence was codified. It was horrifically normal.
Caitlin: First of all, if you were going to shoot your wife, girlfriend, mother, daughter, child, son, anybody, right, like you had a musket, you had to pack it, okay? And I don't pretend to know exactly how things worked back then with guns, but we do know that it took much longer.
Devin: Yeah, it takes 20 seconds to load a musket, round about. Like, maybe if you're skilled, you can shave a few seconds off that, if you're unskilled, it takes longer. About the same thing for like a musket type and round. And so it's like you get one shot off and then it's like, hold still right. And then , 20 seconds later...
Caitlin: Coming off the heels of a time where if that didn't work, you could just call somebody up and say, well, Caitlin's a witch, and they would just set me on fire in the town center. So there were plenty of ways to take care of, you know, a spouse that you didn't want to have to live with anymore, whatever the specifics may have been.
Devin: And like, beating women back then was a horrific standard. It's like, yeah, you discipline your wife, you discipline your children. And that meant stuff that today would rightfully throw you in prison. That would rightfully get that domestic violence restraining order and have somebody's gun stripped away from them in that moment of crisis. And to say that, like a lot of stuff has changed over the last 200 years, and a lot of that stuff is for the better. And when you look at the course of American gun laws — and despite what originalists want to say, there were plenty of them at the founding around that time and more going forward — it just works. They just worked in specific areas. But as people became part of The People that's in the Constitution, Declaration of Independence and such...
Caitlin: Much to many other people's chagrin, by the way.
Devin: Right. Yes. As you see that, you see more laws coming about, like, particularly like gun violence prevention laws after women got the right to vote, after black people were not treated as property anymore. Like you do see this evolution towards restrictions on dangerous activities. And the project of originalism is to basically silence the voices of women, silence the voices of people of color, and to throw things back when only propertied white men had a voice and only those things stand. Rather than recognizing the Constitution as a living document where the ideas presented in it can be carried forward. But the interpretation of those ideas shouldn't be set in stone.
And even the founders themselves were not originalists. Like you have Thomas Jefferson explicitly stating that like, yeah, laws and customs and such should evolve. It's insane to have everything put in a straitjacket from back when we did things. So even the founders rejected originalism. And in this decision, tying it back to Rahimi, like you had Thomas, who was the author of Bruen, saying this is the originalism I want, and the rest of the court to varying degrees going that's insane. How can we tie in what, like make it look like Bruen's still feasible, but then step away from this insanity of it? And that's why you have so many different justices giving concurring opinions, because there's a major divide on just how far down the path of insanity that they're willing to go.
Caitlin: Right. As as we were sitting here, I received a fundraising email that just popped up in my notifications from an organization, praising "the life-saving decision of the Supreme Court of the United States."
Devin: Yeah, I mean, it is technically life saving, but it's also like, hey, you throw somebody into the water, into the deep end, they're drowning. Then you send them, like life raft, pull em up and say, see, I saved your life. It's like, yeah, but it wouldn't have been necessary had you not thrown me into the deep end in the first place.
Caitlin: Right. And there is a quote from Guns Down America, actually, that I wanted to read. I think this maybe is a good summary of my emotions. This came out the day of the ruling last week. It says,
"Today the Supreme Court did the bare minimum to keep weapons out of the hands of domestic abusers just days after they allowed bump stocks back on the market. The timing is not lost on us. Both of these should have been common sense decisions. But today, children are waking up to another day in America where there are more guns than people. While the Supreme Court pats themselves on the back for doing the bare minimum to protect women and children who are disproportionately the victims of domestic firearm violence, we know the reality is that we continue to face an epidemic of gun violence. Where visiting more movie theaters, schools, and music festivals still come with a fatal threat. Let's not get it twisted. No one gets a bonus for meeting expectations."
And there's that. So call me a pessimist, or someone lacking gratitude, or whatever it might be. But again, when we talk about common sense gun legislation, like this is the epitome of common sense. So again, maybe there is a sense of relief because many of us were not expecting it to go this way. So, there is certainly value in that for the safety of individuals. But my goodness, again, this is where the bar is.
Devin: Yeah, and I guess it depends on just how low your expectations are, whether they're at zero or a negative number.
Caitlin: Right. I know right. What's what's measurable here exactly.
Devin: Yeah. And I do kind of last thing on this is there's an excellent thread by Jake Charles on X, which was formerly known as Twitter and should still be knwn as Twitter. But anyway, Jake Charles has an excellent thread on Rahimi and like what all the justices said and such. So I highly recommend checking his stuff out if you're interested in more detailed legal analysis.
Caitlin: So to shift the conversation slightly. One other thing we wanted to bring up today was an important article that The New York Times ran last week about the work of William English. Devin, can you explain more about this article and English's impact on the gun violence discussion?
Devin: Yeah. So the reason this is semi-relevant as well as, one, it also occurred in the past couple of weeks. And two, it had an impact in the Bruen case. So at GVPedia we talk a lot about the defensive gun use myth, as well as the myth of more guns, less crime. And the primary authors of those myths through history have been Gary Kleck and John Lott, who we've discussed both of them in extensive detail in our writings and on the podcast.
However, for the Bruen case, a new researcher emerged by the name of William English, who's at Georgetown. Nobody in the gun violence world had heard of him before, but he filed this amicus brief, and a bunch of other amicus briefs cited his new research on defense of gun use and the more guns, less crime hypothesis, where he found that there was something like 1.67 million defensive gun uses annually. We'll get to that number in a minute. And also, that right-to-carry laws, or the move of states to right-carry-laws from more restrictive permitting systems, did not increase crime. So kind of providing the public health cover for justices to basically ignore the research out there, finding that guns make things less safe. And to just, kind of further bolster going down a history approach where it's like, the public health stuff is, debatable, so we're just going to kind of toss it all to the wayside.
And this report from The New York Times, released last week, uncovered that English's research had been paid for by gun lobby organizations, and that was undisclosed. And that he was receiving fees for testifying in court cases, which, like his work, has kind of been the new hot thing in program circles, for like $250 to $350 an hour. And so really profiting off these two pieces of research — which were not peer reviewed. He basically self-published them, and then they were picked up in the amicus briefs and spread all over the place as if these were, like, profoundly important and new research. And to a degree it was profoundly important because it shaped a lot of stuff, and was just taken and used by the gun lobby rather gleefully. And that sort of pattern existed for like two years until this report by The New York Times comes out showing that, yeah, it was paid for, and additionally very sloppy because they were able to uncover his own data set, which I don't know how they accomplished that, but they did, and found that he was suppressing stuff that was not as beneficial to the pro-gun narrative.
For example, he chose to highlight gun owners who felt that having high capacity magazines were quite important for self-defense; and he excluded a bunch of testimonials saying like, nobody needs these things for self-defense. So he was basically selectively putting out the data. Also, the methodology that he used, while claiming it was the largest survey done on defensive gun use, which is debatable. And like putting out this work as if it was new and learning from the mistakes of the past. It repeated all the mistakes of the past like it didn't improve at all on researched done by Gary Fleck and others. It was basically ignoring all the lessons about false positives and the research debate that had emerged. He just kind of put it out there. And with the right-to-carry research, like one of the many issues with it was that he held up Massachusetts as an example of like a right-to-carry state, even though it's very much a may-issue state and has strong restrictions; and then has Alaska as a more restrictive state, even though they're now a permitless carry state, because he points to the fact that they have a low number of permit holders. But that's because you don't need a permit to carry a gun in Alaska. And so he's like swapping Alaska and Massachusetts, making all sorts of just very bizarre choices that are just fundamentally incorrect, to not get too far into the weeds. And there is no way that this would pass through peer review, as a result.
And so you have this incredibly sloppy research paid for by the gun lobby that's then used in court cases across the country. And this is a classic case of the gun lobby's firehose of falsehood, where I guess, in a way, they figured the jig is up with Gary Fleck and John Lott's research, so let's find somebody new, package the conclusions that we want in a new format — even though they're the same conclusion, same sort of methodology and stuff — and then say, look at this new research that refutes all this other stuff. And then because it's amplified so much by the large network of right wing media, it gains a power that's insane. And then it takes multiple years for those looking to find accurate information for, like this New York Times article to come out, or for other academic articles to rebut this. And two years later like, while what The New York Times did was quite impressive and important, two years is too late. By that time it's firmly ingrained, like it's not going anywhere.
So it's yet another aspect of the firehose of falsehood that is going to need to be challenged and refuted in detail. And if that ever occurs at a scale large enough to dampen the impact of this research, and put air quotes, the gun lobby will just come up with something else and throw it out there. So it's a kind of never-ending struggle to counter the firehose of falsehood, but it also needs to be accelerated and happen a lot quicker with organizations, academics, and reporters, when disinformation comes out, very quickly responding to it and not taking two years. And because if there continues to be a two-year lag, if there even continues to be like a month lag, it's going to be kind of too late. And it also needs to be something that high-level researchers, larger organizations have to get on board with it. At GVPedia we do what we can to myth bust and get the accurate information out there, but we're under no illusions that we're a small organization, like there's only so much we can do. Our microphone, as it were, is relatively small, and there needs to be a lot more effort put into countering disinformation before it gets too late.
Caitlin: Yes, and we are in for quite the ride, considering it is the beginning of summer and we are only a couple of months away from the campaign trail really heating up. And the firehose of falsehood will certainly be in full gear for us. So some of what Devin was speaking about earlier in the podcast about writings that we've done, you can find on our Substack, which is called Armed With Reason. So if any of this is of any interest to you, please feel free to check our work out there.
And just a general announcement, we are going to be slowing down our podcast episodes a little bit this summer. We know that people are busy, out and about, hopefully enjoying some sunshine and some family time. So we have some great topics in store for the fall. But Devin and I might jump on here occasionally when things happen, for better or for worse, just to make sure that everybody who takes the time to listen and to support our work just has an opportunity to be in the know. So if there's something this summer that you're interested in learning more about, please feel free to reach out to us, and we would be happy to jump on the podcast for a little bit and discuss it. So all right Devin, well here we are again — low-hanging fruit and low bars. But I guess we'll take whatever victories we can get when they come to us. Hopefully the next victory we have to celebrate actually feels like a tried and true victory. So all right, well, enjoy the rest of your June. And, we will see you back here soon.