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November 15, 2021

Op-Ed: Did the Supreme Court Tip its Hand on the Blockbuster Gun Case it’s Hearing Wednesday?

[Cross-posted from Los Angeles Times]

By Aaron Tang

For years, cities across the country have limited who may carry a gun in public. The Supreme Court will soon decide whether these limits violate the 2nd Amendment. The effect could be staggering — the difference between a few hundred guns and hundreds of thousands of guns on the streets of Los Angeles, New York City or Washington.

With stakes so high, commentators have naturally speculated about the outcome. Given the court’s conservative supermajority, many expect the court to dramatically expand the right to carry firearms in public.

Quietly, however — in a rare action taken through the court’s docketing procedures — some of the court’s conservative justices may have tipped their hand. What they’ve revealed is a fact-sensitive approach to the case that should give gun safety proponents reason for cautious optimism.

Start with a bit of Supreme Court 101. When a party that has lost in a lower court wishes to obtain the Supreme Court’s review, it files a petition for a “writ of certiorari.” The most important page of this petition is the first one, which sets forth the question presented by the case. As the court’s own rules explain, “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.” The “question presented” thus dictates the scope of the court’s analysis.

It takes four justices to vote in favor of granting a “cert” petition. And in nearly every granted case, the justices vote to accept, verbatim, the question presented in the petition. (Occasionally the justices will limit their review to one of multiple questions in a petition, or add a threshold question to clarify the court’s power to hear the case. )

In the cases the court initially decided to hear this term, the justices accepted the exact wording of a question presented in all the cert petitions — all, that is, except the landmark gun rights case, New York State Rifle & Pistol Assn. vs. Bruen. In this case, they took the significant step of rewriting the question presented, and thus changed the trajectory of the case.

Rewriting a question may seem trivial. It is not. Last term, out of 58 cases, the Supreme Court rewrote the question presented in just one. Tellingly, the justices then decided that case entirely on the basis of the revised question, holding that an earlier decision by the court does not apply retroactively. The same was true in the year I clerked at the court: The justices rewrote just one question and proceeded to decide that case precisely on the new grounds.

In this term’s gun case, the revision seems equally crucial.

Current New York law forbids individuals to carry a gun in public unless they can demonstrate a “special need” for self-defense. In challenging this law, the original cert petition presented this question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

To gun rights activists, the answer is an obvious no because all law-abiding citizens should have the right to carry a gun in public, regardless of whether they have a special need. And if the conservative justices had strongly agreed, the petition would probably have been quickly accepted as written.

But that’s not what happened. As the court’s docket shows, the justices first discussed the cert petition at a private conference in March, before debating it again at two additional conferences in April. In each conference, however, the conservative justices failed to produce the four votes needed to grant review. (None of the liberal justices are likely to have voted to grant the case because they almost certainly agreed with the lower court ruling upholding New York’s law).

Then, at another conference held at the end of April, the justices voted to grant the case.

What changed? The record indicates just one thing: The court rewrote the question presented, limiting it to ask “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

The rewritten question focuses the court’s review first to the matter of concealed-carry, rather than open-carry, licenses — a sensible move because that is the type of license for which the petitioners originally applied.

The second change is more important. Rather than asking about the right of all law-abiding citizens to carry guns in public, the court’s rewritten question focuses on just the original two petitioners — individuals who were denied special need licenses by New York. In doing so, the justices have made clear that the specific, factual circumstances surrounding the applications will be crucial to their analysis. (Otherwise, the original question presented would have sufficed.)

What, then, are the specifics of the applications? One of the petitioners, Robert Nash, explained in his application that he needed a concealed-carry license because of a “recent string of robberies in the area” around his home, including a robbery that occurred on his street just days before he filed for the license. Yet the New York licensing authority still rejected his application. In contrast, the other petitioner, Brandon Koch, openly admitted in his application that he did “not face any special or unique danger to his life.”

By training the question presented on these facts, the court hints at an outcome that both sides in the gun debate should be able to live with.

State laws that condition the right to public carry on a demonstrated need for self-defense could be constitutional, in keeping with a lengthy historical tradition of similar laws. So New York would be free to deny licenses to applicants like Koch who lack a special need, thus substantially reducing the number of guns on the streets. But states may not utilize a special need requirement as a de facto ban on all public carry. Doing so would infringe the 2nd Amendment right of those who face real and particularized dangers — such as Nash.

The Supreme Court has begun its 2021-22 term with its lowest approval rating in decades. A fact-sensitive, centrist ruling on gun rights would go far toward bolstering its public legitimacy.

November 15, 2021

What Trump Can Teach Us About Con Law Ep. 58: 'Executive Privilege, SB 8 Update, and Rust'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

An update on SB 8, Executive Privilege of presidential records connected with January 6th, and a short digression into criminal law about the tragic death on a movie set. Listen to Ep 58 of the What Trump Can Teach Us About Con Law podcast.

November 15, 2021

The Corporate Shadow in Democratic Policing

[Cross-posted from Science]

By Elizabeth Joh

Abstract: Facial recognition, body cameras, and other digital technologies are increasingly commonplace tools of police departments. These provide police with an increased ability to collect vast stores of information on our movements and habits, both online and in real life. These new forms of investigation have led to successes in ways that might not have been possible with traditional policing. But they also raise the specter of unchecked police surveillance. As a result, privacy and civil liberties groups have raised concerns about how much control we have over the most intimate details of our lives. But there is another, less obvious, challenge to democratic policing from these profound changes. Private companies, not public agencies, are typically responsible for the design, production, and sales of products like body cameras and facial recognition software. That the police neither design nor produce the tools that raise some of the most important questions about privacy and civil liberties today has profound consequences for how we think about democratic policing. Perhaps the central dilemma about this corporate shadow in policing is the tensions that exist between public accountability and private interests when police departments are customers.
November 15, 2021

What Trump Can Teach Us About Con Law Ep. 57: 'The Eastman Memo'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

John Eastman, a mainstream conservative lawyer working for Trump, outlined a plan for VP Pence to declare Trump the winner of the 2020 election regardless of the votes. It didn't happen, but should we be worried about the memo when it comes to future elections? Listen to Ep. 57 of the What Trump Can Teach Us About Con Law podcast.

November 15, 2021

NSO Group Loses Immunity Claim at the Ninth Circuit

[Cross-posted from Just Security]

By William S. Dodge

In 2019, the messaging platform WhatsApp sued NSO Group, alleging that the Israeli company sent spyware through WhatsApp’s servers to approximately 1,400 mobile devises in violation of state and federal law. NSO argued that it was immune from suit because it was working on behalf of undisclosed foreign governments. Yesterday, the Ninth Circuit rejected that argument. (Disclosure: I submitted an amicus brief in support of WhatsApp, along with Sarah Cleveland and Chimène Keitner).

The Ninth Circuit held that the Foreign Sovereign Immunities Act (FSIA) “occupies the field of foreign sovereign immunity as applied to entities and categorically forecloses extending immunity to any entity that falls outside the FSIA’s broad definition of ‘foreign state.’” In Samantar v. Yousuf, the Supreme Court held that the FSIA does not apply to foreign officials, whose immunity is governed instead by federal common law. Based on Samantar, NSO argued that it too could claim immunity even though it fell outside the FSIA. As the Court of Appeals noted, however, “[w]hile the FSIA was silent about immunity for individual officials, that is not true for entities—quite the opposite. . . . If an entity does not fall within the Act’s definition of ‘foreign state,’ it cannot claim foreign sovereign immunity. Period.”

Because the Ninth Circuit held that the FSIA comprehensively addresses the sovereign immunity of entities, it did not reach the question whether NSO would otherwise have been entitled to immunity under the common law. The answer to that question is also “no.” Chimène Keitner and I have recently argued that U.S. courts developing the federal common law of foreign official immunity should not extend more immunity than is clearly required by customary international law. In any event, as explained in the amicus brief, there is no support in either international law or U.S. case law for extending foreign official immunity to companies. To echo the Court of Appeals, foreign official immunity is for foreign officials. Period.

As WhatsApp’s civil suit against NSO moves forward, it is also worth noting the Commerce Department’s decision last week to add NSO and another Israeli company to the Entity List for supplying spyware to foreign governments that used it to target government officials, journalists, activists, and others, a decision that effectively prevents the NSO from receiving U.S. technology. NSO is learning the hard way that having government clients does not shield it from the consequences of its actions.

November 1, 2021

A Middle Ground on Abortion That Originalists Should Embrace

[Cross-posted from The Washington Post]

By Aaron Tang

As the Supreme Court weighs the future of Roe v. Wade, one of the chief arguments for overruling the case — and allowing states to ban abortions throughout pregnancy — is that the right to abortion is inconsistent with the C

The problem with this argument is that it is historically inaccurate. If the conservative justices wish to be faithful to the Constitution’s original meaning, they should not eliminate the right to abortion. Instead, they should restore it to the position that characterized American society throughout our early history, recognizing a constitutional right to abortion early in pregnancy.

This understanding would allow states to prohibit abortion after 15 weeks, just as Mississippi has done in the case to be argued Dec. 1. But states could not ban abortions any earlier. A moderate ruling of this kind could be just what the court needs to restore its battered credibility.

As Justice Amy Coney Barrett has explained, originalism is the philosophy that the Constitution has “the meaning that it had at the time people ratified it.” In the context of the 14th Amendment — the provision that Roe held encompasses the right to abortion — originalist justices have asked whether a right is “deeply rooted in this nation’s history and tradition.”

Time and again, they’ve answered this question by pointing to a historical consensus under state law. As leading originalist and former federal judge Michael McConnell has shown, the 14th Amendment’s original meaning requires “a substantial consensus of the states” to recognize a right over time. Thus, when Justice Antonin Scalia dissented from the court’s 2003 decision recognizing a right to same-sex sexual activity, his reason was that at the time the 14th Amendment was ratified in 1868, only five of the 37 states in the union permitted the practice.

The importance of a state-law consensus is why antiabortion advocates have long rested their argument on the similar claim that when the 14th Amendment was ratified, 27 of the 37 states banned abortion throughout pregnancy. The state of Mississippi makes this claim in Dobbs v. Jackson Women’s Health Organization, the pending case, and no fewer than five amicus briefs repeat it.

This claim is wrong, grounded on a series of historical errors. The foundational mistake is the failure to grapple with the long-standing rule that abortion was legal so long as it was performed before quickening, the first noticeable fetal movement that often occurs at 15 or 16 weeks.

The concept of quickening is crucial because people understood it to represent the first sign of life. Sir William Blackstone, an 18th-century jurist whom originalists deem a “preeminent” originalist authority, wrote that abortion is unlawful only after a “woman is quick with child” because that is when life “begins in contemplation of law.” As historian James Mohr has explained, the “distinction between quick and unquick” pregnancies was “virtually universal” in 19th-century America.

This historical reality undermines the 27-state claim. For instance, antiabortion advocates include Oregon in their count. Yet Oregon’s own prosecutors recognized in 1909 that, under the state’s 1864 abortion law, “abortion is not a crime . . . unless it results in the death of the mother, or of a quick fetus.”

Alabama and Nebraska are two other faulty examples. The Alabama Supreme Court declared in 1857 that abortion was not punishable by Alabama law unless “the woman was ‘quick with child,’ ” a fact at least one pro-life writer has conceded. And the Nebraska statute forbade only giving “any poison or other noxious or destructive substance” to a pregnant person. Safer abortion procedures remained legal.

The more accurate statement is that just 16 of 37 states prohibited abortion throughout pregnancy when the 14th Amendment was ratified. To put it in originalist terms, every single state recognized the lawfulness of pre-quickening abortion at the founding. And a substantial consensus of states continued to embrace this deeply rooted tradition in 1868.

Even the 16 states that banned pre-quickening abortions should hold dubious weight for originalists. Their laws were enacted in response to an all-male medical lobby that argued abortion was inherently “disastrous” to women’s health and that a woman was so “prone to … derangement” that she should not be “allowed to judge for herself in this matter.” Originalism is bound no more by these distorted views than it is bound by historic laws rooted in bigoted beliefs about white supremacy.

As much as this history undermines antiabortion forces who claim there is no constitutional protection for any abortion right, it also suggests that the existing rule, which prohibits states from banning abortion until fetal viability at about 24 weeks, lacks originalist support. Virtually every state in 1868 banned abortion after quickening.This outcome might be far from ideal for either side in the abortion wars. Yet in this deeply polarized moment, an originalist abortion middle ground may be the best the court — and the American people — can hope for.

November 1, 2021

Review: 'Gunfight, My Battle Against the Industry that Radicalized America'

[Cross-posted from The Daily Yonder]

By Lisa Pruitt

On the 20th anniversary of 9/11 in September, J.D. Vance tweeted a photo of himself holding his young son amidst a table of guns.  He captioned it, “Took the toddler to a gun show this morning.  Saw some amazing historical weapons, some going back to the Civil War.” 

Vance is, of course, the author of the best-selling memoir Hillbilly Elegy, now running as Republican for the U.S. Senate from Ohio. 

I found the tweet curious.  After all, Vance has told us an awful lot about himself in all that he’s written, and he’s never held himself out as an outdoorsman, hunter, or gun collector. In his memoir, Vance did mention his Papaw giving him a BB gun.  And we know Vance did a stint in the Marine Corps, but his was a desk job, in “public affairs.”    

So what gives with the kid at the gun show? 

I suspect the answer lies in what Vance wished to communicate with his tweet—and who he wished to reach.  Vance has recently taken policy positions that indicate a right-ward lurch on a range of polarizing issues.  He notoriously retracted his 2016 criticism of Trump and has been chasing Trump’s endorsement for months.  But Vance may have accomplished more with that single tweet than with all his recent op-eds and policy statements combined.  After all, few messages will reach a MAGA voter as clearly and directly as a kid at a gun show.

As I thought about Vance’s tweet, though, I realized that in a different place and time—and from a different source—I would not have recoiled from a photo of a child at a gun show any more than I would have recoiled from a photo of a child accompanying a parent on an errand to the barber shop or an outing to the county fair. 

That’s because I grew up in rural Arkansas, in a place where hunting was so common and culturally significant that school was dismissed the first two days of deer season every November.  The local newspaper regularly published photos of kids as young as 10 years with the deer they’d bagged.  I’d wager that 90% of the households in my community owned guns, all used primarily for hunting and target practice, with a spectral need for defense of home and family at back of mind.  Implicit in this culture was a healthy respect for the lethality of these tools. 

But guns have long signaled something different in rural places than in urban ones.  Just as significant, guns now signify something radically different than they did a few decades ago.  In short, guns have become highly politicized, both a cause and a symbol of our nation’s accelerating polarization.    

If you’re curious about that shifting meaning and the rural-urban rift in relation to firearms, you’ll want to read Gunfight:  My Battle Against the Industry that Radicalized Americaa compelling and timely new book by Ryan Busse.   

Busse, who grew up rural in western Kansas and until last year was a gun industry executive, uses memoir as a vehicle for serving up a tell all on one of the nation’s most secretive, profitable, and powerful industries.  He takes the reader through step after increasingly painful step of how the firearms industry—effectively corralled and led by the National Rifle Association—became so mighty a force in American life and politics that many in Congress quake in their boots at the very mention of three little letters:  NRA.  

Two Factions of Gun Owners

Busse attempts to thread the needle between two broad factions of gun owners.  On the one hand are hunters and outdoors folk, the aficionados of guns like old-school, bolt-action rifles, pistols with artisan grips and such—the sorts of guns that are, or could become, family heirlooms.  The folks who own these guns are widely associated with rural America.  They’re the people I grew up with.

On the other hand are what the industry once pejoratively (and politically incorrectly) called “tactards,” those drawn to fire power, high capacity magazines, and the semi-automatic experience associated with so-called “black rifles.”  Interestingly, lots of folks also associate these guns with rural America, though no one needs a semi-automatic weapon to hunt game or to protect themselves.   

Busse is firmly in the former camp.  His love of guns and the outdoors—and his respect for both—drew him as a fresh-faced 20-something to his dream job with Kimber, a boutique manufacturer of rifles and pistols based in Kalispell, Montana.  The early rollicking pages of Gunfight exude a youthful enthusiasm. Those chapters are populated by colorful characters like Busse’s first boss at Kimber, an Aussie who ate three meals a day at the neighborhood strip club (who knew strip clubs served breakfast?) and a fellow Kimber salesman with a “world-class mullet,” a mustard-yellow pick-up, a dog named Ted Nugent (after the famously pro-gun rocker), and chronic girlfriend problems.

But as Busse climbs the corporate ladder, the gun scene in the United States shifts away from the old guard gun faction, which Busse calls “wise men,” and towards the tactards and their black rifles.  This is where the tale turns ominous—for both Busse and the nation.  There’s the bullet-proof glass erected at Kimber’s manufacturing facility to protect executives in the event a worker “goes postal.”  There are the crass jokes about a “back-to-school sale” on guns in the wake of Columbine.  Eventually, as Busse refuses to toe the industry line on politics, there are threats against him.   

This shift from old guard to tactard is illustrated well by two vignettes from Gunfight.

The before times are represented with a description of the Southwind Classic, an annual prairie dog hunt Kimber sponsored at the Kansas ranch of Busse’s youth.  The event gathered trade journalists to try the company’s wares and have a good time.  When a young writer showed up at the event in 2004 with an AR-15, the wise men of the industry 

huddled around the new kid to explain the unwritten rules of their polite gun society. … ‘Look, son “normal” people don’t use or shoot that kind of gun,’ one of them explained. … ‘We’re not like those tactards,’ someone said, referring to … fringe consumers who believed more in the rifles of militia building than the art and craftsmanship of the fine guns we were trying to sell.

Fast forward eight years to the after times.  Busse describes in chilling detail the Bushmaster XM-15 E2S Shorty AK that Adam Lanza used in the Sandy Hook school massacre in 2012: “specifically designed for professional military combat in close-quarter situations … like vehicles, terrorist-filled caves, and buildings with numerous hallways and doors—building like grade schools.”  Busse details the gun’s various upgrades to establish that Lanza was “equipped with the most lethal military weaponry ever made,” thus illustrating how the industry had shifted to cater to the very tactards the old guard had shamed and shunned less than a decade earlier. 

Busse argues that fearmongering and associated pressures within the firearms industry effectively fueled not only the development of guns like Lanza’s—guns “designed to win wars through efficient mass killing”—but also the demand for them:

“Social media accounts boomed. New companies were built. Fortunes were made. Lanza and his rifles were products of it all, and when he arrived at Sandy Hook and pulled out his own black rifle, there were no norms left to break.”

Studies in contrast like this one make Gunfight a menacing account of how quickly the firearms industry changed, in a deadly feedback loop with what Busse sees as a radicalized segment of America.  But it’s impossible to say which came first, the chicken or the egg?  That is, was the firearms industry fomenting the radicalization, as Busse asserts, or was it radical, right-wing forces outside the industry that prodded firearms manufacturers down the incendiary and deadly path they are still on?

Busse’s Big Pivot

Whether the genesis of the polarizing winds was from within the industry or outside it, Busse saw the tornado taking shape on the horizon well before Sandy Hook. Busse’s big pivot—at once personal and professional—came midway through the Bush administration when he spoke out in a high-profile venue against a Bush-Cheney plan to open public lands in the West to energy exploration.  Among the places at risk was Badger-Two Medicine, Busse’s most beloved Montana hunting grounds and a place sacred to the Blackfeet tribe. 

Busse didn’t see his pro-conservation position as being at odds with his employer or his industry, explaining he was “trying to help save places so we can sell more guns.”  But his stance attracted attention from across the political spectrum because it marked him as a turncoat, “a red-meat gun executive who criticizes a Republican.”  Busse writes of being “betrayed and embarrassed” at having “been duped into believing I was part of an industry that shared the values of my childhood—much of the talk about conservation and hunting was just another ruse to get people like me into the culture war.”  

Both the NRA and the National Shooting Sports Foundation came down on Kimber for Busse’s opposition to the Bush administration plan, and for a time, his job seemed to hang by a thread.  Yet the attention Busse garnered from his contrarian stance convinced him he could “exert an outsized impact by staying inside the industry.”  So stay he did.  By Busse’s account, he was a fly in the ointment of the firearms industry during that time, a consistent voice of moderation in the face of a freight train barreling in the direction of hate, intolerance, fear—and the attendant proliferation of military- style weapons available to anyone who wanted them.

Busse’s writing is clear, and the story thread of Gunfight is fast-paced and engaging.  He does a fine job of stitching together much of the recent history and politics of firearms in America.  But perhaps Busse’s greatest value add is having been in the room where it happened.  Busse was privy to industry decisions about marketing and re-positioning their wares to take advantage of shifting tides and emerging cultural forces. 

Among these forces was the role of Iraq and Afghanistan War veterans-turned-influencers, men like Kyle Best and Mat Lamb who developed massive followings on social media and inspired wannabes that the industry called “couch commandos,”

the millions of consumers who had never fought in a war, much less joined the military, but who nonetheless considered themselves experts simply because they scrolled through the social media feeds of [influencers] like Lamb and Best, and knew how to play first-person-shooter video games from the comfort and safety of their couches.

Thanks to the demand created by consumers like these, guns in “desert tan” finish became a standard feature of new product launches. 

Other aspects of gun marketing also morphed to meet the moment’s burgeoning new consumer sectors.  Corporate leaders had previously consulted with attorneys to avoid giving guns names that might expose companies to liability on the basis that they encouraged deadly  behavior.  Thus products had long been marketed with mundane names like Kimber Custom Classic, the Remington 870, and the Smith & Wesson Model 629.  But as the industry shifted to fuel sales to the new “tactical culture,” it embraced provocative names like the Ultimate Arms Warmonger and the Combat Super Sniper AR-10.

The pages of Gunfight are replete with illustrations of the power and greed of the firearms industry.  Take the bipartisan Manchin-Toomey amendment, introduced in 2013 in the wake of Sandy Hook.  Seeing some federal gun reform as inevitable—and even a good idea—a few industry players expressed early support for the amendment, a less restrictive option than one proposed by the Obama administration.

The Manchin-Toomey amendment would have done nothing but close the loophole that permits purchasers to avoid background checks when they buy at gun shows.  That law had long been a thorn in the flesh of those seeking regulation, in part because it was that very loophole that had enabled Dylan Klebold and Eric Harris to get their hands on the guns they used to kill 15 at Columbine High School in 1999.  Indeed, the loophole is another reason the photo of Vance at a gun show is, well, triggering—no pun intended—for those who support common sense gun reform. 

As Busse explains it, the Manchin-Toomey amendment would have had a negligible impact on gun sales, simply channeling purchasers to established retailers.  But for the NRA, stopping the law—any gun safety law—was about more than short-term profits.  It had become a matter of principle after Smith & Wesson secretly negotiated with the Clinton administration in 2000 to agree to several safety features and marketing limitations, e.g., trigger locks, not marketing firearms to the general public, in exchange for limits on liability associated with handgun violence. 

Combined with Clinton’s success with the Brady Bill and the assault weapons ban of the 1990s, Smith & Wesson’s move—considered a betrayal to the industry—had been too much for the NRA to bear; indeed, it also put both Clintons permanently in the cross-hairs of the organization.  After Smith & Wesson’s back room deal, Busse asserts, the industry rigorously policed internal dissent.  It embraced zero tolerance of gun safety regulation and developed a lobbying machine capable of achieving that goal.    

It was in that context that Wayne LaPierre and his deputies went for broke on Manchin-Toomey.  In the face of what looked like the worst of a string of public relations disasters for the gun industry over the course of a few decades—the massacre of 20 first graders and six educators—the NRA announced it would “score the vote” on the amendment.  This meant politicians’ NRA rating was at stake.  Too many senators, anxious to retain their A+ grade from the NRA, were unwilling to call the organization’s bluff.  Manchin-Toomey failed by a vote of 54-46. 

A Million Gun Sales after Sandy Hook

If the slaughter of innocents with a semi-automatic rifle inside the walls of a primary school couldn’t move the needle on gun reform, it got harder to imagine what could.  Equally shocking was the NRA’s decision to roll out a new slogan in the wake of Sandy Hook:  “The only thing that stops a bad guy with a gun is a good guy with a gun.”

Again, the firearms industry turned a national tragedy into a literal call to arms, which meant it conveniently doubled as a sales opportunity.  Not only did the slogan stick among a growing number of second amendment absolutists, a million guns sold in the week following the massacre.  Other staggering new records were set, as daily gun sales hit 30-to-40 times normal levels at national retailers like Bass Pro Shops and Cabela’s and tens of thousands of high-capacity magazines flew off the shelves in a single hour.

As Busse expresses it, the firearms industry had again succeeded “in converting an opportunity to make policy improvements into just another temperature increase for the national pressure cooker.”  It is that failure to make policy improvements that Busse seems to think portends ill for gun owners like him and other hunters, those of the old-fashioned, wise men variety.  Busse argues that if gun owners won’t accept moderate regulations, they risk far more sweeping regulations once the legislative tide finally turns on gun safety measures.  The weakness in his argument is that it’s nearly impossible to see that tide ever turning with sufficient force to threaten the sorts of guns the old guard values and owns.    

The firearms industry flex, like the one in response to Manchin-Toomey, is a move Busse documents through one mass murder after another—and through one Democratic administration after another.  The specter of regulation always goosed gun sales, in part because the firearms industry messaged paranoia—even lies—about the loss of gun rights.  During the 2008 presidential campaign, for example, the NRA claimed Obama would “ban use of firearms for home self defense,” “ban the manufacture, sale and possession of handguns,” develop plans to “ban virtually all deer hunting ammunition” and “erase the Second Amendment from the Bill of Rights and exorcise it from the U.S. Constitution.”  No evidence supported these assertions, but like the “alternative facts” that came to be associated with the Trump administration a few election cycles later, truth was beside the point. 

In talking about how the industry leveraged Obama’s Blackness to drive up fear, Busse doesn’t shy away from calling out a racial dog whistle.  For example, he summarizes the NRA’s message about Obama’s candidacy:  “the only thing worse than losing a culture was having it taken by a Black community organizer from Chicago with a law degree from Harvard.”  

Book Ignores Street Violence, Suicide

Yet Gunfight generally neglects other racialized and gendered phenomena associated with guns.  These include the role of firearms in killing thousands every year—disproportionately people of color—in street violence, as well as their role in an epidemic of intimate partner violence.  The word “suicide” isn’t used once in the book.  Busse also glosses over controversies associated with self-defense, though he does name names in placing the blame for the “Stand Your Ground” law that protected George Zimmerman when he killed 17-year-old Trayvon Martin in 2012:  Marion Hammer, LaPierre’s predecessor at the NRA.  The epidemic of children—including toddlers—who get their hands on guns and kill or wound people accidentally or purposefully also is not taken up in the book, though this phenomon surely implicates all gun owners and suggests that the gun safety norms that were a feature of my rural upbringing have fallen away.  All told, hundreds of thousands of lives have been lost to gun violence in the last decade, but Busse sticks almost entirely to headline-grabbing mass shootings to bolster his depiction of an industry with no internal controls and, he concludes, no decency. 

Following Busse’s initial dust-up with the firearms industry over his pro-conservation stance, he describes an enterprise in airtight alignment with the Republican Party and all its policy stances.  What Busse reveals, in fact, sounds remarkably like an early iteration of the sort of loyalty and purity tests we have seen more recently in American politics, though associated with the cult of personality as much or more than policy positions.  Consider that the few members of the GOP supporting an investigation into the Capitol insurrection of January 6 have become pariahs within their party.  

Indeed, while Gunfight was already in the publication pipeline on January 6, 2021, it’s interesting to revisit the line Busse draws between the old guard and the tactards in light of that day’s events.  Initial reports suggested that it was rural and working class white folks who’d stormed the Capitol, but subsequent investigation has revealed that relatively affluent suburbanites led the charge.  The coastal elites among whom I live and work tend similarly to associate rural folks with the black-rifle set—if they differentiate at all between Busse’s two factions of gun owners.  Guns have thus become one more reason for folks in my uber woke world to cast rural residents as the bad guys, though I suspect there is no more correlation between rurality and the take-no-prisoners, permit-no-regulation set in the gun industry than the media have found between rurality and the January 6 insurrectionists.       

Gunfight depicts the firearms industry as a big bully, but it hasn’t just bullied senators, members of Congress and, by extension, the entire nation.  Part of the book’s tension comes from the parallel bullying Busse experienced as a dissident within.  In one jarring scene, Busse’s boss at Kimber—angry at slumping gun sales at the end of Obama’s presidency—quips, “The problem is that we have Democrats. Let’s solve our problems, Ryan. How about we just kill all the Democrats? Well, all of them except you, Ryan. Let’s kill all the Democrats except Ryan.”  

In the face of such an abusive workplace, Busse’s explanation for why he stayed at Kimber as long as he did is not always convincing.  At several junctures, one fears he will sacrifice his marriage for the company and his career, as his wife repeatedly implores him to get out of the gun business.  In the face of these pressures, one assumes that Busse was not only stubborn, but presumably well compensated, perhaps anticipating that Kimber would go public and deliver a windfall.  That didn’t happen, and sanity—as well as the proverbial love of a good woman—ultimately prevailed when Busse left Kimber in mid-2020.

As should be evident by now, Gunfight is not just about guns.  It’s about how guns have become a potent symbol in the culture wars—of Right v. Left, Republican v. Democrat and—accurately or not—rural v. urban.  This book is also about greed, power, lobbyists, the post 9/11 wars, militias, and how we got to January 6.  At the end of the day, Busse may convince you that guns are not only literally killing people, they’ve become a potent symbol of the polarization that’s killing our democracy.

Lisa Pruitt is a the Martin Luther King Jr. Professor of Law at the University of California, Davis, and runs the Legal Ruralism Blog. She previously reviewed Senator Jon Tester’s memoir, Grounded, for the Daily Yonder and was interviewed for the Yonder’s Path Finders series in April 2021.