Balkinization  

Thursday, December 20, 2012

Guns and Courts

Jason Mazzone

People who spend their lives reading Supreme Court opinions sometimes end up imagining that the Supreme Court is responsible for everything, good and bad, that happens in American politics and society. Since the Sandy Hook shooting, various commentators have asserted that the five justices in the majority in the recent Second Amendment cases of DC v. Heller (2008) and McDonald v. City of Chicago (2010) bear responsibility for Adam Lanza's actions. Professor Geoffrey Stone now writes:
By distorting the text and meaning of the Second Amendment and ignoring the common sense judgement of the rest of the civilised world, the five conservative justices fed into and reinforced the frenzy about gun ownership in America. And by preventing American citizens from engaging freely in the democratic process to decide for themselves what controls on guns are most sensible, those five justices tragically and needlessly set America apart from the rest of the civilised world — with predictable consequences. 
Professor Stone's point about the rest of the world is that out of 188 written constitutions around the globe today, 185 of them (he reports) do not include any analogy to our Second Amendment. This fact is relevant, Professor Stone says, because the majorities in Heller and McDonald were wrong when they concluded that textually and historically the Second Amendment right is not tied to militia service. Thus, Professor Stone says, "[a]ll that is left . . . is the question of whether there is a fundamental personal right to own a gun for the sake of owning a gun." On that issue, he tells us, "the nations of the world are in agreement — there is no such fundamental right." 

Professor Stone might be right that the Court got its history wrong in Heller and McDonald. But Professor Stone's effort to cast the Court as villain in the larger story about guns and violence is very hard to square with reality.

For one thing, the Supreme Court was exceedingly late to the scene. Americans had guns--and some Americans used them to commit terrible crimes--well before the Supreme Court recognized an individual constitutional right in Heller. Indeed, until Heller was filed, gun rights advocates refrained from bringing an earlier case to the Supreme Court because they believed that the Court would reject an individual rights argument.

Professor Stone's argument that the Court has prevented Americans from using the democratic process to adopt gun regulations is also not persuasive. In Heller, the Court's narrow conception of the individual right at issue--to possess an operable handgun for self-defense--tracked very closely the views of the majority of the American population. Heller and McDonald had very little practical impact. They invalidated gun laws that, as measured by the rest of the nation, were extreme outliers: a total ban in the District of Columbia and Chicago respectively. The Court brought those jurisdictions in line with the democratic preferences of the country as a whole. 

We don't, of course, know how far the Court in the future will extend the right recognized in Heller and McDonald. But if the five justices in the majority in those cases were seeking to prevent Americans from adopting, through democratic measures, gun regulations, they have so far failed in a spectacular fashion. Lower federal and state courts have rejected virtually all of the 500 or so Second Amendment challenges brought since Heller. This is not surprising, given that in Heller and McDonald the laws at issue were such outliers. The important exception is the Seventh Circuit panel's decision in Moore v. Madigan (2012) holding that the Second Amendment protects also some right to carry a firearm in public. Again, though, the Illinois law at issue in that case--a near-total ban--is uniquely an outlier as measured by the rest of the nation. And the Seventh Circuit panel stayed its mandate to give the legislature the opportunity "to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public." This, too, is hardly a case of preventing democratic bodies from regulating. 

While Professor Stone is incorrect about the impact of the Court, it would likewise be wrong to think that the Court doesn't matter. Heller and McDonald were significant decisions. But their significance, and the Court's impact, might well be democracy-enhancing rather than democracy-constraining. Not only was the Court in Heller and McDonald deferential to democracy, it may also have provided a framework that will facilitate future democratic measures. This is because the slippery slope argument long championed by the NRA--that if the government takes some guns it will take all guns--no longer has any force. Whatever new laws Connecticut and other states now adopt, whatever Vice President Biden's committee now proposes, Heller and McDonald set limits. Limits facilitate as well as constrain.               


  

   

Comments:

Alas Finley Peter Dunne's Mr. Dooley could not speak out on Bush v. Gore (5-4, 2000) to reconsider his observation that the Court follows the "illiction" returns, when in effect the majority elected Bush/Cheney. Looking back at the Bush/Cheney 8 years, shouldn't the majority be squirming at what it wrought upon our nation with its rush to misjudgment? Get over it? A shrug of the shoulders?

Bush v. Gore was a political decision. So was Heller, so was McDonald, so was Citizens United. each 5-4. Is it coincidence that these decisions benefitted the Republicans? The Second Amendment had been dormant for many, many years. It was supporters of the Republicans who pushed and pushed the Second Amendment as an individual right rather than a collective right connected to the ancient concept of the militia in the early days of this nation, militias needed to defend the states and the nation in times of strife. Times changed from muzzle loading muskets to the current technology of guns. (By the way, the term "arms" in the Second Amendment is not limited to guns.) Consider further advances in technology that can more efficiently kill, injure and maim. If this is what originalism requires, shove it.

So let's turn Stone over and over and over to pass on his message, his wisdom. The unelected Justices deserve as much, or perhaps more, criticism than elected officials who can be voted out of office.
 

Heller is not an obstacle to gun regulation. Connecticut has one of the strongest set of gun regulations in the country: waiting periods, licenses required for handguns, no "assault weapons," indeed, the whole wish list of gun controllers. The guns used in the Newtown shooting were purchased and held in compliance with these laws.

What Heller is an obstacle to is gun prohibition and gun confiscation. The prohibition of private gun ownership would indeed make future Newtowns less likely.

The problem is this: There are 300 million private guns in the US. The Chinese Communist Party was able to disarm the Chinese population when it seized power in 1949 because it had absolute power. The US government is constrained by the 4th and 5th amendments, and so even if the 2d amendment were repealed, the Government would not be able to seize more than some large fraction of the guns in private hands. The ones most likely to remain in private hands, of course, would be held by those most likely to commit crimes with them. And I don't believe that a repeal of the 2d amendment would even pass Congress, let alone be ratified by the states.

So we are left with inherently ineffective gun laws, weak commitment laws for mentally unstable people and a culture (read: Hollywood) that promotes violence. These are tough problems, though, and it's so much easier to demagogue them.
 

Certainly the whole burden of Newtown can't be loaded onto Heller. There are also the rather distinctive values of American society to consider. But from overseas, where I sit, it doesn't seem likely that Heller will be "democracy-enhancing."

Here in Japan, for example, the American unwillingness to regulate guns is regarded as sick and incomprehensible, and a defect of the American political system. As one friend, a graduate of the top law department in the country (Tokyo University's), put it the other day: "So what if peoples' opinions are so diverse about the issue - that's what laws are for." Of course one could talk about the need for laws to have democratic legitimacy, but that argument falls on deaf ears. When the inability to regulate guns is presented as an outcome -- or even worse, as a shining example -- of American democracy, many people outside the American thought bubble have second thoughts about democracy altogether.
 

Heller is an obstacle to some gun regulation but it allows many categories of regulation.

I already dealt with Douglas' comment about Ct. gun laws in another thread, including how somehow it didn't stop the mother to apparently legally own the weapons in question.

We cannot simply disarm people but like that judge who sentenced the shooter of Gabrielle Giffords, a gun owner, a supporter of Heller, noted, there are things we can do that would and would continue to temper gun violence like we regulate speech to temper speech related crimes, if ones usually less lethal.

Finally, Heller was a product of society -- society as a whole supports gun ownership but of a regulated variety. This led in part to presidents (and challengers in fact) that supported a RKBA, who chosen justices who upheld them.

Since Sandy Levinson on down on the liberal side agrees, it is a bit sad Heller and McDonald was 5-4, but some of the justices were from an older generation or more supportive of regulation. OTOH, there have been liberal judges in state and federal courts who supported the RKBA too.

This reflects the state of society and the legal community too. Finally, as Prof. Amar notes, society understood the 2A by the time of the 14A to protect personal ownership. A Court that totally goes against what society believes is unlikely.
 

Joe's closing line:

"A Court that totally goes against what society believes is unlikely."

can challenge originalism, which presumably was the focus (with history) of both the majority and the dissents in Heller. Heller's 5-4 was not "totally." Justice Scalia instead of referring to the "slippery slope," as he occasionally does in dissent, came up with his dicta on certain areas of regulation that has been criticized by both those on the left and the right as not following history or originalism. So I don't think 5-4 was odd in Heller. Some of the dissenters were appointed by Republican Presidents.

Consider Joe's closing line as to Brown v. Board of Education, which was unanimous, in effect overturning almost a century of limited (school) discrimination and Jim Crow. Perhaps the Justices in Brown were more courageous than in Heller, judging by the way a great portion of society (in the former slave states) fought post-Brown and the Civil Rights Acts of the 1960s tooth and nail, with remnants of Nixon's Southern Strategy still around, including Sen. Lindsey Graham's (Cracker, S. Car.) lament about the lack of enough angry white voters to prevent the reelection of America's first African-American President. Perhaps the Heller majority provided ammunition (politically?) to those angry white men. Ah, those demographic changes: if voting will not serve the angry white voters, what will?

By the Bybee [expletives deleted], I wonder if there is information on the 300 million private guns in America with demographic ownership breakdowns?

[Note: it was the Warren Court's decisions, perhaps starting with Brown, that brought about the originalism movement, that continues to evolve While very few directly and openly challenge Brown today, perhaps Heller is an indirect challenge.]
 

The development of constitutional law in a common law way is alluded to by Shag and as Prof. Balkin and others note, it provides a (modified) public check on the whole affair both by who appoints and their general outlook.

Cf. Souter saying the justices in Plessy thought they were doing pretty much, but by the time of Brown, it wasn't enough. See also, Justice Robert Jackson's unpublished concurring opinion.

One can debate how surprising or whatever the 5-4 vote was but at least in McDonald, it is a bit curious to me. Stevens alluded to (but didn't support) a possible "liberty" right to own guns. Breyer in Heller assumed one but still found a means to upheld the law. Stevens in oral argument in McDonald, as was his wont, tried to find some means to limit the damage.

Recognizing a liberty interest while leaving open the reasonable regulation (which won't satisfy some around here) was a way to go. But, the dissenters in effect drew the line in the sand.

Let's see what happens when the next case comes up.
 

Heller and McDonald were significant decisions. But their significance, and the Court's impact, might well be democracy-enhancing rather than democracy-constraining. Not only was the Court in Heller and McDonald deferential to democracy, it may also have provided a framework that will facilitate future democratic measures. This is because the slippery slope argument long championed by the NRA--that if the government takes some guns it will take all guns--no longer has any force. Whatever new laws Connecticut and other states now adopt, whatever Vice President Biden's committee now proposes, Heller and McDonald set limits. Limits facilitate as well as constrain.

Where in the Heller decision do you see a willingness by the Court to narrowly define or limit the "arms" protected under the 2A guarantee to allow laws like prohibitions of "assault weapons" - semi-automatic rifles based upon their cosmetic military appearance?

From Heller:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding...

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right...

The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society...


In sum, Heller suggests that the government may not ban entire classes of small arms commonly owned by the citizenry. The only limit suggested by the Court was that the 2A did not reach unusually dangerous small arms used by the military and are not commonly owned by the citizenry like automatic firearms such as the M16.

It is difficult to see how a Brady Bill-style "assault weapon" prohibition survives any level of 2A scrutiny under Heller given that they are small arms commonly owned by the citizenry and the legislative definition of an "assault weapon" is entirely cosmetic and does not reach similarly or more dangerous semi-automatic rifles and shotguns commonly owned by the citizenry.

Sometimes, limits on government power are really limits.
 

Putting the dicta in Heller where the sun don't shine, the decision (5-4) is limited to "guns du jour arms" in the home for self-defense. But gun rights yahoos look down the road to outside the home, with both concealed and open carry rights, presumably for self-defense, including in public places, with no limits on the number of "guns du jour arms" and expansion of "du jour arms" with technology advances that may be more lethal, in self-defense, of course. The majority left it to states via their legislatures, governors and courts and lower federal courts to expand beyond its limited decision. So the experiments may result in even greater carnage. Is that a slippery slope or a landslide?

And Brett's "moderate" NRA proposes what? Armed guards in all schools. This would then extend to armed guards in other places where people of all ages gather. We end up with a fortress society, with NRA backed politicians promising a car in every garage, a chicken in every pot and a gun in every hand. The NRA is not in any sense moderate, rather it is absolutist on the Second Amendment.
 

Tom Toles' political cartoon at the WaPo today sends a powerful message under the protection of the First Amendment's Speech/Press Clauses. Contrast this with the NRA response to the CT tragedy by its president placing blame on the First Amendment in support of his Second Amendment absolutism. Many may recall as kids learning "Sticks and stones may break my bones but names will never hurt me." Has this nation reached the point that the Second Amendment trumps the First Amendment? Take a careful look at Toles' cartoon. Ponder its message.

[Note: I await Prof. Eugene Volokh's commentary on the NRA's president placing blame on the First Amendment for gun tragedies, since, in my view, Prof. Volokh, as demonstrated at the VC Blog, seems to be as close to an absolutist on both the First Amendment's Speech/Press Clauses and the Second Amendment, perhaps the pre-eminent legal scholar in the blogosphere on these topics.]

By the Bybee [expletives deleted], Google "Serial Killers Named Wayne" for some interesting hits.
 

Shag:

Just because you have the ability to exercise a right does not mean you should.

I can legally shoot and kill some fool who walks into my garage by mistake.

Video game makers can make addictive games which give kids adrenaline rushes from shooting people to death.

Doesn't mean we should do those things.
 

I can legally shoot and kill some fool who walks into my garage by mistake.

# posted by Bart DePalma : 10:58 AM


I'm pretty sure the 2nd amendment doesn't give you the right to kill someone who accidentally walks into your garage.
 

Maybe Heller and Macdonald are not responsible for the Sandy Hook tragedy, but overruling them would most certainly help prevent further massacres.

Nobody talks about prohibiting private gun ownership. Even in a country such as mine, France, where guns are heavily regulated, there is no such prohibition. But one could restrict access to guns, especially to semi-automatic weapons. It should be much less easy to get a license, not to say to purchase a gun.

Re the common claim : guns do not kill, men do. Well, technically that is right. But the atomic bomb does not kill either, remember. It's men who kill. You do not need to be a philosophy graduate to know that if you do not give someone the means to a certain end, well, the end is less likely to be fulfilled than if you do give them access to those means.

Unless having an H Bomb at home is a right protected under the second amendment, of course...


 

I wonder if the majority Justices in Heller and McDonald watched the NRA's Wayne LaPierre on Meet the Press today, and if so, whether any of them were squirming, not at the slippery slope but at the landslide of violence created by their decisions, as demonstrated by LaPierre's responses to mass killings, not with knives, not with baseball bats, not with brass knuckles, not with dirks, not with sling shots, not with fists, but with guns capable of mass killings.

The late Walt Kelly's Pogo might have responded:

"WE HAVE MET THE ENEMY, AND THEY ARE GUNS!"
 

It is unclear, since they only dealt with handguns, what effect Heller and McDonald will have in semi-automatic regulation.
 

Shag: I wonder if the majority Justices in Heller and McDonald watched the NRA's Wayne LaPierre on Meet the Press today, and if so, whether any of them were squirming, not at the slippery slope but at the landslide of violence created by their decisions.

Landslide of violence? Criminal abuse of firearms is down, perhaps because so many millions more are now armed both inside and outside their homes.

Why would a judiciary well guarded by armed police find Mr. LaPierre's suggestion of lesser protection for schools at all strange or uncomfortable.

As soon as firearm prohibitionist politicians disarm their security details, then they might have moral (if not common sense) standing to criticize Mr. LaPierre's suggestion.
 

2 fighters killed and 2 wounded by a gunman in upstate New York. Apparently it's time to start arming fire fighters.
 

Baghdad, we're all guarded by well-armed police.
 

Joe's (presumably in response to my comment):

"It is unclear, since they only dealt with handguns, what effect Heller and McDonald will have in semi-automatic regulation."

raises the question whether the dicta in each - or either - case referenced "semi-automatic regulation. But on the street, to use the vernacular, and in practice, including by state fiat, Second Amendment enthusiasts have "hope," perhaps more than hope, that such semis are appropriate. Perhaps the Heller and McDonald 5-majority are squirming for not mentioning semis being subject to regulation. Consider the response of the NRA on the subject following the CT tragedy.

Keep in mind that Brown v. Bd. of Educ. (1954-UNANIMOUS!) dealt "only" with education in public schools, giving hope to million who had been subjected to such discrimination even after the Civil War and the Civil War Amendments. Brown gave "hope" to millions so deprived that other than public schools discrimination would end, and in time much of that discrimination did end, although remnants of the Nixon Southern Strategy continue to the present. This "hope" created the reactions of many millions of despair with Brown, fighting Brown and Civil Rights Acts of the 1960s tooth and nail.

Some cynics might say that Heller and McDonald gave "hope" to millions to lawfully access arms beyond handguns, but creating much despair for many millions witnessing the slaughters over the years not only in schools with semis.

No one seems to directly challenge the unanimous Brown decision anymore (even originalists), unlike the 5-4 Heller and McDonald. Do the changing demographics (that have been no secret over the past decade or so) connect the dots between these decisions that are over 50 years apart? It seems that some states have recognized the demographic changes with changes in laws broadening self-defense.

I'm aware of the Article III case/controversy limitations on the Court. But the Court is at times, including presently, very political.

Further on connecting dots, consider that originalism surfaced in the 1980s as a challenge to the Warren Court that unanimously decided Brown. Coincidence?

Sure, in Heller and McDonald handguns were involved, not semis. But consider the view on the street of the gun rights yahoos following Heller and McDonald. How many cases, how many years, will it take for the Court to address the full implications of the Second Amendment? In the meantime, how many will be slaughtered by semis and other arms technology coming down the pike?
 

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