What’s Next? The Legal Questions: Part Three

Today is part three in Mark V. Tushnet’s blog series about the 2nd amendment. Tushnet is the author of Out Of Range: Why the Constitution Can’t End the Battle Over Guns and is the William Nelson Cromwell Professor of Law at Harvard Law School. To read the other posts in this series click here.  Be sure to come back tomorrow for the final installment in this series.

The Supreme Court is going to consider whether to decide the constitutionality of the District of Columbia’s complete ban on handgun possession. Suppose the Court adopts the gun-rights position that the Second Amendment protects an individual’s right to keep and bear arms. What happens then?

Finding that the Second Amendment protects an individual’s rights doesn’t in itself guarantee that gun-control laws are unconstitutional. The Amendment’s preamble refers to the “well-regulated” Militia, which certainly suggests that some sorts of regulations are consistent with the amendment. A standard example is that, although possessing bazookas might be useful these days to people who want to resist an oppressive government, laws barring the private possession of bazookas are obviously constitutional.

What regulations would survive in a world with an individual right to keep and bear arms? There are two broad possibilities. First, courts might treat that right just like they treat other fundamental rights like freedom of speech. Lawyers use various terms to explain which regulations might survive: “strict scrutiny,” “compelling state interest,” and others. Gun-rights proponents usually contend – or hope – that something like “strict scrutiny” will apply to gun-control laws, and that a fair number of those laws won’t survive that scrutiny.

It’s easy to understand why gun-rights proponents take that position. But it seems to me that the other broad possibility is the more likely. Under the alternative approach, the Second Amendment would permit governments to adopt reasonable gun regulations, and “reasonableness” would be fairly generously defined. The best support for that position comes from decisions by state courts in the many states whose constitutions clearly do protect an individual right to own weapons. A recent survey of state court decisions makes it pretty clear that state courts apply a very loose “reasonableness” standard to state and local gun control regulations, even when they are interpreting state constitutional provisions protecting an individual right.

The District of Columbia law before the Supreme Court involves a complete ban on handgun possession. It’s not hard to see how such a ban might be described as unreasonable. The lead plaintiff challenging the ban wanted to keep the gun at home, available for self-protection. Preventing people from doing that might be found to be unreasonable. Still, I think there’s a case to be made – that is, I think that judges might sometimes conclude – that even a complete ban might be reasonable under some circumstances. They might conclude that specific local circumstances – a high rate of gun violence, extreme difficulties in ensuring that guns owned by law-abiding people aren’t stolen and then used by criminals – might make a local ban reasonable. And, of course, if a complete ban on gun possession might be upheld as reasonable and permitted by the individual-rights interpretation of the Second Amendment, there’s not much that would clearly be unconstitutional (a nation-wide ban on gun possession, perhaps).

So far I’ve been writing about the consequences if the Supreme Court takes the gun-rights side. If the Court takes the gun-control side, constitutional issues are probably going to drop out of our discussions of gun policy. (Not completely: gun-rights proponents will still argue that the Court made a mistake, but those arguments will have less force in public discussions than gun-rights constitutional arguments do now, when the Supreme Court hasn’t spoken recently on the question.)

What would then happen is that gun-policy discussions would be conducted entirely in terms of what is good public policy. But the divisions we currently see over the constitutional questions will simply reproduce themselves when specific policy proposals are on the table. On the surface, the sides will differ in their evaluation of whether a particular policy is going to do any good – that is, is going to reduce or increase crime and violence. The difficulty that we’re going to face, though, is that policy evaluation is going to depend on the resolution of factual questions about a fairly large-scale social phenomena. And every social scientific study – reaching conclusions one way or the other – will have enough flaws that partisans will read the studies the way the want and conclude that the ones supporting the positions they already hold are good studies, and the others are bad ones.

Why is that going to happen? My next post will take up that question.