Tag: second amendment

Gun Control Advocates Should Applaud the Supreme Court

The Supreme Court ruled last week that state and city governments must respect the individual right to bear arms that is guaranteed by Second Amendment to the U.S. Constitution. This ruling does not necessarily invalidate all gun control laws, but it will likely mean the demise of outright bans and restrict significantly the ability of states and cities to impose other kinds of controls.

Advocates of gun control have decried the ruling because they believe guns cause crime and that gun control laws, by gun reducing gun availability, reduce crime. Regardless of the constitutional questions, however, both arguments for controls are flawed.

Many crimes do not require an armed perpetrator, and numerous weapons can substitute for guns (knives, baseball bats, fists, bombs, chains, shivs-the list is endless). Even if guns encourage or facilitate crime, guns potentially prevent crime by giving criminals reason to worry that victims might shoot back. In addition, gun controls cannot make guns disappear; they can only attempt to reduce availability via regulation, taxation, or prohibition. Those with illegitimate purposes, however, can circumvent such policies by borrowing or stealing a gun, or purchasing one on the black market.

Existing evidence indicates that the availability of guns plays a small role in causing crime and that gun control does little to reduce crime. Numerous countries have widespread gun ownership but low crime or violence rates; other countries have strict gun control laws but abundant guns and substantial violence. Police stations, army barracks, and rural households have high gun prevalence but little crime. Simply stating that guns automatically lead to high levels of crime is facile.

In addition, gun controls have costs, both for individuals and for society.

Many people derive a benefit from owning guns. Some enjoy collecting, others like hunting or target-shooting, and others want guns for self-defense. Controls raise the costs of gun ownership, thereby harming legitimate users. The costs of many of these controls are mild-a three-day waiting-period to buy a gun, for example, imposes small costs on those with legitimate reasons to own a gun. Yet such controls do little to deter illegitimate uses, so they also have minimal benefits.

The potentially significant cost of mild controls is that they evolve into strict controls. A century ago no country had substantial controls on gun ownership, yet most now have strict controls or virtual prohibition. If gun control becomes prohibition, the potential for adverse effects is large. Prohibition creates black markets, which means violent dispute resolution, corruption of judges and police, and disrespect for the law. Such outcomes are easily worse than any negatives of guns themselves.

The most significant negative of gun control is distracting attention from policies like drug prohibition that play a far larger role in generating crime. So long as policy generates a demand for crime, policy can do little to reduce crime.

Critics of the Supreme Court’s decision, therefore, have no cause for worry. If the ruling prevents many or most gun control laws, that will be good for everyone.

C/P at psychologytoday.com

A Few More Points on McDonald

I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:

  • Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause.  No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause – just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
  • Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision.  While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes.  Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states.  That means P or I is relevant and enters the casebooks and Court precedent.
  • The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments.  They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age.  This may or may not be correct as a matter of policy or social science – the evidence I’ve seen seems to point against them – but it’s irrelevant to the legal analysis.  If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate.  As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation.  Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
  • Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible.  One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”  The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
  • Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous.  There but for the grace of God goes any right – and any limitation on government power.  As I said yesterday, “Thank God that vote is Justice Thomas’s.”

For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.

Democrats, Kagan, and the Second Amendment

Today Politico Arena asks:

What are the political implications for Democrats and for the Kagan hearings of today’s Supreme Court gun decision?

My response:

The Supreme Court’s decision today that the Second Amendment applies against the states cannot be helpful to Democrats in the upcoming elections or to Elena Kagan in her confirmation hearings. Most Court-watchers expected the decision to come out as it did, yet the dissent by the Court’s four liberals speaks volumes. How could other rights in the Bill of Rights be good against the states, but not this right? Given the quality of their argument, the conclusion that the Court’s liberals are picking and choosing their rights on political grounds is inescapable.

And that issue will arise in the Kagan hearings, given some of her past statements about the Second Amendment. Will it block her confirmation? Probably not, given the numbers. But the discussion should illuminate the issue for the voters, and that’s good.

The Court Restores a Fundamental Right

Today is a big victory for gun rights and a bigger one for liberty.  The Supreme Court has correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government.

It could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions, and that all individuals possess certain fundamental rights.  It is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.

Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment.  Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”

Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess—and indeed it is “essential to the preservation of liberty.”  The Framers of the Fourteenth Amendment—the most important “Framers” in this context—plainly deemed this right “necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.”  All arguments to the contrary lack legal, historical and even philosophical basis.

And so it is a very good thing, again for liberty, that the Court needs Thomas’s fifth vote to rule as it does: while the plurality declines to reconsider the old and discredited Privileges or Immunities precedent, Thomas’s clarion call for a libertarian originalism provides a step on which to build in future.

Finally, as we celebrate the belated recognition of a precious right—the one that allows us to protect all the others—we must be shocked and saddened to see four justices (including Sonia Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process.  This is a nation of laws, not men—a republic, not a pure democracy—and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote.  Thank God that, in this case, that vote was Justice Thomas’s.

Elena Kagan, Super Tuesday, Tea Parties, Guns

Just as Tuesday’s primary elections were good news for libertarians, they were bad news for Elena Kagan.  Now that Arlen Specter (D-R-D-PA) will never again face an electorate, we will be able to see his true colors, whatever they are – this should be interesting! – on the Senate Judiciary Committee.  Blanche Lincoln (D-AR), assuming she wins her June 8 primary run-off (having to tack left to do so), will be a possible vote against Kagan so she can show skeptical Arkansans that she’s not an Obama-Reid-Pelosi rubber stamp.  And Rand Paul’s trouncing of establishment candidate Trey Grayson in the Republican primary should strike fear into the hearts of all senators running for re-election this fall (or even 2012) such that they refuse to accept pablum from a judicial nominee’s testimony.

The above races, combined even more notably with Scott Brown’s victory in Massachusetts in January, reinforce that voters are upset with Washington and they ain’t gonna take it any more.  Put simply, this fall’s election is shaping up to be a repeat of 1994 – except now we have protesters, the Tea Party movement, actively opposing every type of government expansion, bloat, and “stimulus” emanating from the federal government.  Elena Kagan will still get confirmed but she will face tough questions about the limits on government power; a 59-seat majority is nothing to sneeze at, but her confirmation margin is eroding every day.

Turning to one aspect of Kagan’s record that will get some attention in coming weeks, Ken Klukowski of the American Civil Rights Union argues that the nominee “confirms that President Obama’s gun-control agenda is to create a Supreme Court that will ‘reinterpret’ the Second Amendment until that amendment means nothing at all.”  Now, even though Ken and I have tangled before, I have no doubt that Obama is not the best president ever for the defense of the natural right to keep and bear arms for self-defense.  Still, Ken’s claim here that Kagan’s decision not to file a brief on behalf of the United States in McDonald v. City of Chicago indicates that she is anti-gun rights is specious.

Doug Kendall of the Constitutional Accountability Center – a progressive group that nevertheless has the intellectual integrity to support the application of the right to keep and bear arms via the Privileges or Immunities Clause – has a detailed refutation to these allegations:

As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense.  It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.

As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.

From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.

On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case.  As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.”  Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.

General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.

In short, as Josh Blackman says, Kagan had plenty of reasons not to file a brief in McDonald and her decision not to says absolutely nothing about her views on the right to keep and bear arms. Again, I have no doubt that Elena Kagan, being a standard modern liberal, is no friend of the Second Amendment.  But the evidence Ken Klukowski purports to marshal is no evidence at all.

Open Carry Victory

As I previously noted, one of the areas where enforcement of the right to keep and bear arms will impact states and localities is in the carrying of handguns, either open or concealed. Until then, handgun carry proponents will be forced to comply with state laws that mandate open carry where concealed handgun permits are not issued or are only issued to those who happen to have fame, money, or political connections.

Wisconsin is one of two states with no provision for concealed carry (Illinois is the other). Frank Hannon-Rock, a member of Wisconsin Carry, a pro-gun rights organization, was arrested for open carrying on his front porch. He filed suit and was recently awarded $10,000 by a federal district court.

This parallels (but does not equal) the experience of Danladi Moore, an open carry advocate in Virginia who has been harassed repeatedly by Norfolk police. Moore’s case is worse; he is black, and police behavior took a predictable turn:

Danladi Moore – whom the city paid $10,000 in July to avoid litigation after being stopped by police for suspected weapons violations – was charged with trespassing at the downtown entertainment complex Tuesday night…

Moore said a friend who was with him at Waterside also was carrying a gun and also had challenged police when asked to leave. He said his friend, who is white, was not charged.

Given the racist origins of gun control and the positive role that firearms played in the civil rights movement, you would think that this sort of thing would be frowned upon.

Gun Control After McDonald

I recently appeared on the Patt Morrison Show in southern California opposite Paul Helmke of the Brady Campaign to Prevent Gun Violence in a segment that begs the question of what gun control laws will look like if the Supreme Court incorporates the Second Amendment with the McDonald v. Chicago case. The audio of the program is here, but the issue merits a more detailed discussion than I could get into on the radio.

The litigation over the boundaries of the Second Amendment in the District of Columbia previews the kinds of gun laws that will face court scrutiny.

First, certain restrictions on the purchase of firearms will likely be overturned. California maintains a “safe gun roster” of handguns that manufacturers have successfully submitted for safety testing. Following the Heller decision, the District adopted California’s roster. The roster is very specific, and handgun models are certified “safe” right down to the color. The District rejected applications to register two-tone guns, discontinued models, and guns not on the California roster. Three plaintiffs filed suit, alleging that this policy violated constitutional protections against irrational administrative regulations. The District relented, expanding its roster to include the “safe handguns” listings for Maryland and Massachusetts.

California courts are likely to reach similar conclusions. The Calguns Foundation has a plaintiff who wants to register a Glock handgun. The state has certified the right-handed but not the ambidextrous version, and the Calguns plaintiff was born without a right arm below the elbow. This compelling case, along with others parallel to the DC plaintiffs, will force California to open up its roster.

Second, jurisdictions will be forced to allow some form of handgun carry, either open or concealed. Outright bans on concealed carry cited in cases from the mid-1800’s come from a time when it was assumed that only brigands carried handguns concealed, and it was an unquestioned right of the people to carry arms openly wherever they went. States and localities will not be able to delete the right to bear arms from the right to keep and bear arms.

My colleague Tom Palmer is currently litigating this issue in the District of Columbia (complaint here), and states will have to confront the plain text of the Second Amendment and clear historical recognition of a right to be armed outside the home.

California allows open carry as long as the handgun is unloaded, but Los Angeles and other jurisdictions in the state refuse to issue concealed handgun permits. California will probably opt for concealed carry when push comes to shove. Public views have shifted to an “out of sight, out of mind” mentality, and concealed carry is the rule in most states. A California police officer recently put a comment up on Facebook that proposes intimidating open carriers with violence. “Haha, we had one guy last week try to do it! He got proned out and reminded where he was at and that turds will jack him for his gun in a heartbeat!” Turds indeed.

This brings us back to the Starbucks controversy that prompted the radio segment. Gun control proponents asked Starbucks to ban firearms from their coffee shops, and gun rights activists asked that they continue their current policy of following the law of the jurisdiction where each franchise is located.

The call-ins to the radio show expressed a willingness to boycott Starbucks if it keeps its “follow the law” policy, but that’s a rationale to boycott gas stations, grocery stores, and restaurants across the nation. If self-defense scares you that much, the best advice is to stay home. Or venture out and be a good victim.

Callers also expressed concerns about off-duty cops brandishing guns while intoxicated, and this is something we should take seriously. As I’ve said before, no magical powers accrue to a sworn officer. That’s a great case for barring everyone from carrying and drinking in public, law enforcement officers included. Federal law does this – the Law Enforcement Officers Safety Act allows current and retired law enforcement officers to carry concealed nationwide but requires that they not be under the influence while doing so. The same can’t be said for some state laws that make law enforcement officers a higher class of citizens than everyone else. Virginia allows retired law enforcement officers from any jurisdiction to imbibe while armed, but citizens with concealed handgun permits must transition from concealed carry to open carry when entering an establishment that serves alcohol for on-premises consumption. Better to treat permit holders and officers alike, and allow carry in restaurants but bar alcohol consumption while armed.

It’s unclear what the patchwork of gun laws across the nation will look like in ten years, but Eugene Volokh gives a framework for analysis in this article. Cato held an event the day before oral argument of the McDonald case, and our brief is available here. Ilya Shapiro and Josh Blackman discussed the application of the Privileges or Immunities Clause in this excellent article, and provided some post-argument commentary.