The Volokh Conspiracy

In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk.... And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.

But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party (as it could easily have done at various times during that year), millions of lives would have been saved. The same goes for the Weimar Republic and the Nazis. Closer to home, many black lives could potentially have been saved if the federal government had suppressed neo-Confederate and segregationist political speech in the South in the aftermath of the Civil War, thereby preventing “Redeemer” forces from regaining political power in the region and suppressing black rights.

One could argue that these other rights don’t endanger lives as directly as guns do. Action, not speech or procedural rights, is what really kills people. Perhaps the life-threatening effects of procedural rights and political speech can be forestalled without restricting these rights themselves. However, one could say the same of guns. As the NRA famously puts it, guns don’t kill people, people kill people.

Whether we are talking about guns, speech, or other rights, there are going to be cases where, as a practical matter, it is impossible to prevent death by measures short of restricting the right itself. For example, allowing Nazi speech in the Weimar Republic may have greatly increased the risk that the Nazis would come to power, by which point it was too late too prevent them from killing large numbers of people. Similarly, once free speech by Redeemers and ex-Confederates allowed them to seize control of southern states, it was politically impossible for the federal government to protect black rights against them – at least not without much greater violence than might have sufficed to prevent the Redeemers from organizing in the first place.

In making these comparisons, I do not mean to suggest that judges should allow severe restrictions on constitutional rights any time there is a plausible argument that doing so might save lives. To the contrary, I think judges should generally avoid doing so. The trade-off between lives and constitutional rights is one better made by the framers and ratifiers of the Constitution than by judges. Moreover, there are often risks to life on both sides. For example, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Similarly, strong enforcement of the Fourth Amendment could sometime prevent abusive police behavior that itself endangers lives.

If we allow government to set aside constitutional rights whenever they “put... others’ lives at risk,” we soon won’t have many constitutional rights left. I also object to Breyer’s and Scalia’s more selective invocation of risks to life in cases involving rights for which they have little sympathy, while simultaneously ignoring very similar considerations when the right at stake is one they value more highly.

UPDATE: Breyer tries to limit his argument to “substantive liberty rights,” which may exclude procedural rights such as those protected by the Fourth Amendment or habeas corpus. However, it’s not clear why life-threatening procedural rights should be any more vigorously enforced than similarly risky substantive rights. After all, the purpose of most of the procedural rights is to provide indirect protection for “substantive liberty.” Moreover, as discussed above, freedom of speech is surely a “substantive liberty right,” and it sometimes poses serious dangers to life as well.

UPDATE #2: I should note that Justice Stevens’ separate dissent in McDonald makes a similar argument to Breyer’s (pp. 35-37 of the slip opinion). Thus, all four of the liberal justices have endorsed some form of this reasoning.

UPDATE #3: I should perhaps have pointed out that there is considerable academic controversy about the validity of criminologist Gary Kleck’s estimate, linked above, that there are 2.5 million defensive uses of guns per year in the United States. Some of the conflicting research is summarized here. I suspect that the Kleck estimate is probably overdrawn because of methodological problems such as those discussed here (though see Kleck and Marc Gertz’s response). But even the low-end estimates put forward by some of Kleck’s critics estimate some 100,000 defensive gun uses per year. Philip Cook, a prominent scholar general supportive of gun control, states that the truth is probably somewhere in between the 100,000 and 2.5 million figures, which seems plausible to me. In any event, my purpose is not to endorse any of the specific estimates, but simply to point out that defensive gun uses often do occur and sometimes save lives. Therefore, there are potential risks to life on both sides here.

The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status of the Second Amendment isn’t yet completely secure. That said, the decision will have a substantial practical impact in a few areas and it also represents a tremendous symbolic victory for gun rights advocates.

I. Limited Practical Impact.

On balance, I agree with scholars such as co-blogger Eugene Volokh and Jack Balkin who argue that McDonald will have only a limited practical effect. As Balkin puts it:

Complete bans on the use of handguns in the home for self-defense are likely to be held unconstitutional, as the Heller case suggested. But a wide range of other firearms regulations should be perfectly legal. The Supreme Court signaled as much in Heller and once again in McDonald.

The big difference between applying a constitutional right only against the federal government and applying it against state and local governments is that there are many more state and local regulations of firearms than federal regulations, and these regulations occur in many different varieties.

This increases the number of possible constitutional claims, and it also increases the opportunities for litigation. It does not, however, guarantee that Second Amendment rights will become too robust over time...

Federal courts tend to strike down mostly laws in outlier jurisdictions that are markedly different from the norm. That is what happened in the District of Columbia, and will likely happen in Chicago. More than 40 states already recognize an individual right to bear arms under their own constitutions. By and large, they have upheld most gun control laws under a loose standard of reasonableness. The federal courts will probably follow suit.

As I explained in this 2008 Legal Times article on Heller, Justice Scalia’s majority opinion in that case leaves numerous openings even for very broad gun control regulations:

Justice Antonin Scalia’s majority opinion in Heller firmly establishes the Court’s recognition of an individual right to bear arms. Yet it also outlines a large number of “presumptively lawful regulatory measures” restricting gun rights. These exceptions to the right to bear arms could potentially swallow the rule.

Most importantly, the presumptively valid “laws imposing conditions and qualifications on the commercial sale of arms” could easily be drafted in ways that make the purchase of firearms prohibitively difficult or expensive for most ordinary citizens. The exception for “prohibitions on the possession of firearms by felons and the mentally ill” could also be used to undermine the scope of Heller. Many states, as well as the federal government, define a wide variety of minor, nonviolent offenses as felonies.

The Scalia opinion seems to accept laws forbidding the carrying of firearms in “sensitive” locations such as schools
and government buildings. A government might define a large number of areas as “sensitive,” including, for example, entire neighborhoods with high crime rates....

Governments could also act to limit gun ownership by imposing prohibitively burdensome requirements on gun registration, a type of regulation not considered in Heller. In short, Heller potentially leaves a lot of room for legislators and lower courts to eviscerate the individual Second Amendment right that the Supreme Court has recognized.

McDonald does nothing to clarify or pare back this language from Heller. Presumably, therefore, Heller’s strictures on the limits of gun rights remain intact and will apply to state as well as federal regulation.

As Balkin points out, only a few areas have truly draconian gun bans similar to Chicago’s, so the impact of McDonald may well be confined to a small number of atypical locations. That said, it is important that complete gun bans such as Chicago’s are on their way out. Millions of people live in Chicago and a few other similar jurisdictions.

I think it’s also likely that courts will turn a skeptical eye on regulations that allow gun possession in theory but essentially ban it in practice (as the new post-Heller DC regulations do). The fate of such subterfuges is likely to be the most significant issue lower courts will have to consider in the short-term aftermath of McDonald.

II. The Impact of Ideological Division.

Both Heller and McDonald were closely divided 5-4 decisions where the Court split along ideological lines. In Heller, the four liberal justices indicated that they do not believe that the Second Amendment protects an individual right robust enough to invalidate even the most extreme forms of gun control. As I see it, it’s even more telling that in McDonald they argued that the Second Amendment should not restrict the states in any significant way even if Heller were correct as to the federal government.

As I argued in this article on the status of property rights, it is difficult to achieve strong protection for constitutional rights if such protection is supported by judges on only one side of the political spectrum. Where that is the case, protection of those rights will rest on narrow majorities that could easily be changed. Moreover, lower court judges belonging to the opposite party are likely to interpret Supreme Court decisions defining the right as narrowly as they can. In this case, if even one pro-Heller/McDonald justice is replaced by a liberal, both decisions could well be overruled or interpreted so narrowly as to be effectively meaningless.

The ideological division on the Court need not be permanent. Outside the judiciary, leading liberal constitutional law scholars such as Akhil Amar, Jack Balkin, and Sandy Levinson have defended the idea that the Second Amendment protects an important individual right enforceable against all levels of government. It’s possible that the next generation of liberal judges will be influenced by such views.

III. Could Heller and McDonald Actually Lead to More Gun Control Regulation?

Assuming Heller and McDonald survive, it’s possible that they might actually increase the amount of gun control regulation in the long run. As Eugene Volokh points out:

[S]ubstantive constitutional limits on government power can be regulation-enabling, not just regulation-frustrating. A non-absolute constitutional right to get an abortion, to speak, or to own guns can free people to vote for small burdens on the right with less concern that these small steps will lead to broader constraints.

Some of those who oppose relatively moderate gun control regulations do so out of fear that they will lead to much broader ones. If Heller and McDonald take that possibility off the table, yet do not ban moderate gun control measures themselves, the net result could be an increase in political support for the latter. I emphasize, however, that this is only a possible outcome. Many other factors will influence the future politics of gun control.

In today’s Supreme Court decision incorporating the Second Amendment against the states, the four justice plurality opinion used the Due Process Clause of the Fourteenth Amendment to justify its ruling rather than the Privileges or Immunities Clause.

As various commentators, including co-blogger Randy Barnett, have pointed out, it is strange that four conservative justices supposedly committed to originalism should take this approach in the face of overwhelming evidence that the Bill of Rights was originally intended to be incorporated under the P or I Clause. It is also strange given their own, especially Justice Scalia’s, longstanding aversion to “substantive due process.”

Why did the plurality make this choice? They cite two reasons – the failure of the petitioners to explain the exact scope of the rights protected by the Privileges or Immunities Clause, and longstanding precedent:

In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, ..., but petitioners are unable to identify the Clause’s full scope..... Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed... We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Tellingly, these supposedly originalist justices offer no originalist justification for their conclusion. The precedent argument is at least understandable, though the Court has often been willing to reverse longstanding precedent when it believed that important constitutional rights were at stake. But the vagueness argument is extremely dubious.

It’s true that the petitioners in McDonald failed to provide a precise statement of the rights protected by the Privileges or Immunities Clause. That might be a defensible reason for preferring the Due Process Clause – if the Court’s approach to that Clause were at all clear itself. In reality, of course, the Court’s standard for recognizing rights under the Due Process Clause is notoriously unclear, and open to manipulation. That standard (endorsed once again by today’s plurality) is whether the right in question is “fundamental” to “our scheme of ordered liberty.” You don’t have to be a constitutional law scholar to recognize that judges with different political ideologies and judicial philosophies will have enormous disagreements over the question of which rights are truly “fundamental.” And in fact there are ongoing controversies over whether such rights as abortion, the right to die, various property rights and economic liberties, and a host of other rights are “fundamental” enough to warrant judicial intervention. More than a century of Supreme Court precedent hasn’t even come close to providing us with a clear rule that could settle these issues. To put it mildly, there is very little consensus over the correctness, meaning, and future application of such landmark Due Process Clause decisions as Griswold, Roe v. Wade, Glucksberg, and Lawrence v. Texas. Justice Scalia and other conservatives have repeatedly complained about this vagueness and subjectivity, using it as one of their main arguments against “substantive due process.” It’s possible that a Court applying the Privileges or Immunities Clause wouldn’t fare any better in the search for a clear rule. But it could hardly do worse.

Moreover, at least from the originalist point of view espoused by the conservative justices, using the P or I Clause does in fact promise at least somewhat greater precision than we now have under the “substantive due process” approach. As Justice Thomas points out in his concurring opinion today, there is a great deal of evidence on the original meaning of “privileges or immunities” and scholars from across the political spectrum have reached at least some degree of agreement on these points, as one can see in this amicus brief by Randy Barnett, Jack Balkin and several other prominent constitutional law scholars of differing ideological backgrounds.

Obviously, the precise scope of the rights protected by the P or I Clause could not have been decided in a single Supreme Court opinion. But the same is true of any other important clause of the Constitution, especially one that has been largely neglected for decades. Brown v. Board famously invalidated school segregation under the Equal Protection Clause without even trying to determine the full extent to which that Clause banned racial discrimination by state governments. That issue was understandably left for later litigation. It was therefore unrealistic and possibly disingenuous for the plurality justices to demand that the petitioners provide a comprehensive theory of the rights protected by the P or I Clause.

Co-blogger David Bernstein has long pointed out that many of the conservative justices’ commitment to originalism is questionable outside the realm of various 1960s and 70s “social issues” precedents that they particularly despise. The McDonald plurality’s extremely dismissive approach to originalism and the Privileges or Immunities Clause seems to support David’s point.

Today’s decision is an important victory for the Second Amendment and the right to bear arms. But it is a setback for originalism.

UPDATE: Josh Blackman responds to this post here, arguing that the plurality opinion does not preclude reconsideration of the Privileges or Immunities issue at a future time. I disagree with the view that their rejection of P or I is strictly limited to this case. The plurality opinion’s reasons for not applying the P or I Clause in McDonald — precedent and vagueness — apply just as strongly to any reasonably conceivable future case as to this one.

Josh correctly notes that “vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to.” He suggests that these issues will not be “a major obstacle” to the revival of P or I “if five votes want it.” I agree with this. But the plurality opinion’s reliance on the precedent and vagueness arguments is a strong indication that we are nowhere near having five votes that “want it.” In the meantime, the plurality’s holding will be an important obstacle to P or I claims in the lower courts.

Those who expect the Supreme Court to rethink and perhaps overturn the Slaughterhouse cases in McDonald v. City of Chicago often look to the scope of the cert grant to justify that prediction. The Justices could have granted cert only on the question of whether the Due Process clause incorporates the Second Amendment. But they didn’t. Instead, the Justices granted on both Due Process and Privileges or Immunities. Given that the Slaughterhouse cases seem to foreclose a ruling that the Privileges or Immunities clause incorporates the Second Amendment, doesn’t the broad cert grant clearly show that Slaughterhouse is in play?

We don’t know what the Justices were thinking with any certainty. At the same time, I think there are two plausible reasons why the Court would grant cert on both issues without intending to reopen the debate over Slaughterhouse. The first is mathematical and the second is historical.

1) The first reason is the need to get to five. When the Justices met to decide whether to grant cert in McDonald, they wouldn’t know how the votes would ultimately play out. Most importantly, they wouldn’t know if there would be five votes to incorporate under Due Process. The Justices would be aware of the possibility that there might be four votes in favor of incorporation by Due Process but against incorporation by Privileges or Immunities (presumably CJR, AS, SA, & AMK); one vote against incorporation by Due Process but in favor of incorporation by Privileges or Immunities (CT); and four votes against incorporation under either theory (presumably JPS, SGB, RBG, and SS).

If that’s the case — and we don’t know it is, only that it’s a possibility — it would be important to grant on both issues at once. If the Court granted only on Due Process and left Privileges or Immunities for another day, the Court would end up with five votes against incorporation and four in favor (presumably with a concurrence by Justice Thomas saying that he might or would reach a different result if the Privileges or Immunities issue were before the Court). Then the Justices would have the problem of how to get the P or I issue before the Court again, which would ultimately lead to an 8-1 decision against incorporation by P or I. The result would be two Supreme Court opinions holding that the Second Amendment is not incorporated despite five Justices favoring incorporation.

Given the possibility that the Justices might need both clauses to get to five, it makes sense to address both clauses at once.

2) A second plausible reason to grant on both issues is historical. The Supreme Court’s 19th Century precedents ruling that the Second Amendment does not apply to the states are based primarily on the Privileges or Immunities clause. See Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875). At the time, the Privileges or Immunities Clause was considered the only plausible candidate for applying the Bill of Rights to the states: A decision ruling that the Privileges or Immunities clause did not incorporate the Second Amendment was considered a ruling that the the Second Amendment did not apply to the states period. Note how Justice Scalia described the present effect of those 19th Century privileges or immunities cases last year in DC v. Heller, with emphasis added:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894) , reaffirmed that the Second Amendment applies only to the Federal Government.

If you’re granting cert to determine whether the Second Amendment applies to the states, and answering “yes” would effectively overturn Cruikshank and Presser, it would be a bit unusual to grant cert in a way that would make the precedents to be overturned outside the cert grant. Given the shifting roles of the two clauses in the many decades since those precedents were handed down, it makes sense to look generally at whether the Fourteenth Amendment incorporates the Second Amendment rather than whether just one clause does.

To be clear, I’m not saying that either or both of these possibilities are clearly correct. As I said, we just don’t know. But I think either of these explanations could explain why the Court granted on both issues rather than limiting the cert grant to just the Due Process clause.

In March 1994, I was in the Georgetown Gilbert & Sullivan Society‘s production of Gilbert & Sullivan‘s operetta Patience.

You can find a list of the Society’s past shows here; I was also in the same show the next time they produced it, in April 2007. Also, you can find the libretto of the show here.

In the March 1994 production, I played the character of the Major, which is perhaps the smallest part among the male principals. But hey, at least it was a principal.

Who was in the show with me? In the male chorus, playing one of the Heavy Dragoons, was Alan Gura, who represented Heller in D.C. v. Heller, and who’s counsel of record in McDonald v. Chicago, as you can see from the front page of the brief.

Who else was in the show with me? Why, playing the character of the Duke was none other than David Sigale, also McDonald’s lawyer listed on the front page of the brief.

Who else was in the show with me? This isn’t strictly speaking related to the McDonald case, but the character I married in the show, one “Angela,” was played by Alan Gura’s law partner, Laura Possessky.

Have Gilbert & Sullivan otherwise influenced the McDonald case? Well, p. 7 of the brief (p. 25 of the PDF) says that “The Privileges or Immunities Clause was all but erased from the Constitution in The SlaughterHouse Cases.” And, on the next page, it says that “SlaughterHouse‘s illegitimacy has long been all-but-universally understood.”

All but!

Surely, this is an echo of the sextet in Patience (see p. 19 of the libretto, i.e. p. 22 of the PDF, here), which I sang together with one of McDonald’s lawyers and the other lawyer’s law partner: “The pain that is all but a pleasure will change / For the pleasure that’s all but pain, / And never, oh never, this heart will range / From that old, old love again!” And MAIDENS embrace OFFICERS. Awww!

Or (see p. 28 of the libretto / p. 31 of the PDF), says Angela, commenting on the Major and the Duke: “Not supremely, perhaps, but oh, so all-but! (To SAPHIR.) Oh, Saphir, are they not quite too all-but?”

Perhaps Gilbert and Sullivan’s influence on the law now extends further than Iolanthe and Trial by Jury!