Today, the Senate Subcommittee on the Constitution, Civil Rights and Human Rights is holding a hearing on proposals for new gun controls. Below is my letter to the Ranking Member, Senator Ted Cruz, which expands upon a brief op-ed of mine, Gun Control Fails Rationality Test, that ran in the Washington Examiner a couple weeks ago:
Hon. Ted Cruz, Ranking Member
Subcommittee on the Constitution, Civil Rights and Human Rights
Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
Dear Senator Cruz,
Within minutes of the Sandy Hook murders, gun control advocates began exploiting this horrific event to promote their favored policies. I know this because I was contacted by reporters to respond to these calls even before I had heard that the event had taken place moments before. This was far too early to know what had happened, much less how and why. Yet the drum beat had begun for long sought after measures that would not have prevented these murders. That drum beat continues.
I understand that you are having hearings on various gun control proposals on Tuesday, February 12th. In your deliberations, you may find useful the attached article entitled, “Gun control fails rationality test,” that appeared on January 29th in the Washington Examiner. In this article, I make the following points:
• The Supreme Court evaluates fundamental rights using a heightened standard of scrutiny;
• The Supreme Court has held that the individual right to keep and bear arms is a fundamental right;
• Some of these measures – for example, laws prohibiting such popular rifles as the AR-15 and the normal capacity magazines for such rifles – are flatly precluded by the Supreme Court’s categorical protection of weapons “in common use” by ordinary citizens for lawful purposes, such as the protection of self and others;
• These and most other gun regulations currently under consideration would also fail the least demanding heightened scrutiny: rationality review;
• This is because most proposals either would not have prevented the incidents that are said to motivate their passage, they would keep legal weapons of identical lethality, or they are discriminatory in their treatment of the Second Amendment rights of American citizens;
• For this reason, these measures are irrational;
• This analysis is useful to identify such measures as pretextual efforts, the real purpose of which is to impose an undue burden on the exercise of the fundamental right to keep and bear arms, or to improperly stigmatize its exercise;
• For all these reasons most, if not all, of the measures being proposed are unconstitutional.
To this analysis, I would add that the Congress has its own independent obligation to assess the constitutionality of the measures it enacts. When the courts defer in any way to Congress – as they do even when applying heightened scrutiny – it is on the assumption that Congress has already considered independently whether its legislation is within its enumerated powers, or has violated an express prohibition of the Constitution. For this reason, the types of “scrutiny” that courts will apply to enacted laws is irrelevant to Congress’s own assessment of whether any measure it may enact is irrational and, therefore, unconstitutional. In other words, although the courts have the last word on whether an enacted measure is unconstitutional, Congress has the first word. And a refusal by Congress to enact a measure because, in its judgment, the measure violates the Second Amendment will take precedence over any judicial or executive branch opinion on that question. Only if Congress concludes that a measure is constitutional, does the executive and judicial branches have the opportunity to disagree with this assessment.
Therefore, it falls to your subcommittee to inquire seriously into whether any given measure under consideration would actually violate the Second Amendment. To this end, you should ask:
• Would the proposed measure would have prevented the event, such as Sandy Hook, that is being used to justifies its enactment?
• Are firearms with equal if not greater lethality and rate of fire left legal while others are being prohibited?
• Will some citizens – such as current or retired members of law enforcement or government officials – be privileged in the means by which they can protect themselves over others?
• If an American citizen who is employed to protect the safety of others, or an active or retired police officer, requires a certain type of weapon, with a certain rate of fire or capacity, to protect him or herself or others, why does not a law abiding citizen of the United States require the same sort of weapon for the same lawful purpose?
• Will those who are willing to violate laws be affected in any manner by the existence of this measure, or will its burden largely be borne by law-abiding, and in many cases licenced, citizens who pose no threat to others?
• Will a gun control measure, such as the maintenance of a data base, facilitate future violations of the fundamental guarantees of the Second Amendment, for example, by making confiscation of weapons easier?
The rationality of gun control measures turn on the answers to these and other such questions. Yet most law professors who opine on the constitutionality of gun control measures simply do not know enough about firearms, or the realistic effects of gun regulations, to have a genuinely expert opinion on whether any particular proposal is constitutional. Instead, their opinions are typically based either on their predictions of how courts will rule, often based on how they hope the courts will rule, or their opinion of how deferential courts should be to the Congress. Unless they address questions such as those I listed, however, their opinions can provide little guidance to Congress in its independent assessment of the constitutionality of these proposals.
It is the job of Congress to ask these questions in order to ferret out efforts to violate the fundamental rights of Americans by those who dislike the rights protected by the Second Amendment, or who have an irrational fear of firearms. The answers provided by such an independent inquiry will reveal many of the current proposals to be pretextual efforts having little or nothing to do with preventing the incidents that have roused the emotions of the public, and everything to do with imposing an undue burden upon, and stigmatizing the exercise of a fundamental right.I hope this letter, and the accompanying article, helps inform the Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights discussion.
Professor Randy E. Barnett
Carmack Waterhouse Professor of Legal Theory
Director, Georgetown Center for the Constitution