Lessons For Gun Rights Supporters From the Property Rights Experience I - The Importance of Ideological Divisions on the Court:

Like most of the other VC members, I am happy that the Supreme Court has ruled in today's Heller decision that the Second Amendment protects an individual right to bear arms. However, there are many parallels between this victory and the recent experience with the Supreme Court's property rights jurisprudence that suggest this victory might not be as effective as many hope.

Over the last 20 years, both property rights and gun rights advocates have sought to get the courts to protect a largely moribund constitutional right. From the 1930s to the 1980s, federal courts almost completely abandoned the protection of property rights, with the important exception of requiring "fair market value" compensation for complete physical occupation of property by the government. During that time, the courts allowed property to be condemned for virtually any reason that government officials chose to give (despite the Fifth Amendment's requirement that property can only be taken for a "public use"), and also held that virtually any regulatory restriction on property rights short of complete physical occupation did not count as a "taking" that requires "just compensation" under the Takings Clause. One can tell a similar story about the federal courts' approach to the Second Amendment during the same period.

Since the 1980s, the Supremes have issued several decisions that expand protection for property rights in various ways. Even Kelo v. City of New London was an improvement over previous precedents. However, the net result has been only a slight increase in genuine judicial protection for property rights. Although the Court has trumpeted its new-found respect for property and even emphasized in Dolan v. City of Tigard that it no longer considers property rights a "poor relation" among constitutional rights, the actual results of its decisions belie these rhetorical pronouncements. For the most part - as far as the Supreme Court is concerned - it is still the case that government can condemn property for virtually any reason, and still true that property owners can't get compensation for all but a few of the most extreme "regulatory takings." The reasons for this outcome are instructive, as they apply with equal force to gun rights. In both cases, protections for the rights in question are weakened by and ideological divisions on the Court and narrow definitions of the right in question. This post addresses the issue of ideological division on the Court. I'll consider the importance of the scope of the right in question in a follow-up post.

I. The Ideological Split Over Property Rights on the Court.

With very few exceptions, the effort to strengthen protection for property rights was categorically opposed by the Court's liberal justices. Any property rights case that got to the Court almost starts with four guaranteed votes in favor of the government. This has two important effects.

First, any division in the ranks of the conservative justices is likely to be fatal for property rights in the case at issue. For example, Justice Anthony Kennedy voted with the liberal justices in Kelo and several other important property rights cases, leading to important setbacks for property supporters.

Second, and perhaps more important, it is extremely difficult to establish strong protection for any constitutional right if such protection is supported by jurists on only one side of the political spectrum. Any time the opposing party captures the presidency, there is a high likelihood that new justices will be appointed to the Court who will vote to undermine protections for that right. For example, President Bill Clinton's appointees - Stephen Breyer and Ruth Bader Ginsburg - have consistently voted against property rights since joining the Court. Even if there were a stable pro-property rights majority on the Court today, it would likely be undercut in the future any time a Democratic president gets some Supreme Court appointments.

II. Implications for Gun Rights.

Obviously, both points are extremely relevant to gun rights. In Heller, the four liberal justices made clear their strong opposition to any meaningful protection for individual rights under the Second Amendment. Thus, at least in the short term, protection for gun rights is dependent on the five conservative justices sticking together. As in the case of property rights, Justice Kennedy may turn out to be a crucial swing voter, and it is far from certain that he is willing to uphold gun rights against any but the most extreme infringements on them.

As with property rights, the ideological division on the Court also leaves any gains vulnerable to future reversal in the event that a Democratic president is elected. The liberal justices' opposition to gun rights is also shared by the vast majority of liberal judges on the lower courts. If Obama (or any other Democrat) becomes president, he will likely appoint justices who share these views. Even if Obama does not make this issue a major priority in his nomination decisions, the fact that he will want to nominate justices who are liberal on other constitutional issues will ensure a strong likelihood that they would also embrace the dominant liberal position on this issue. This happened in the case of property rights as well. Opposition to property rights was probably not a major factor in Clinton's choice of Ginsburg and Breyer. Indeed, Clinton was among those who later vehemently denounced the Kelo decision. Nonetheless, these two justices turned out be property rights opponents (even in Kelo) precisely because Clinton did make a priority of appointing judges who are generally liberal, and such judges are likely to be anti-property rights.

In both cases, the relevant group is liberal jurists, not necessarily liberals in the general population. While many liberal activists outside the Court are sympathetic to property rights (as was certainly evident in their reactions to Kelo), this has had little effect on the attitudes of liberal judges. Similarly, there are prominent liberal scholars such as Sanford Levinson and Akhil Amar who support the individual rights view of the Second Amendment, and a good many liberals in the general population who feel the same way. Their views have so far had little effect on liberal judges.

Lessons for Gun Rights Supporters from the Property Rights Experience, Part II - A Narrowly Defined Right May Not be Much Better than No Right at All:

For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a "collective right" protection for state militias.

However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn't enough. If the scope of the right is defined narrowly by courts, recognition won't mean much in practice. The history of constitutional property rights is instructive in this regard.

I. Recognizing Property Rights Without Actually Protecting Them.

Unlike in the case of the Second Amendment right to bear arms, the Supreme Court has always recognized that the Fifth Amendment's Takings Clause and other property rights provisions in the Constitution protect individual rights. However, since the 1930s, the Court has defined the scope of these rights so narrowly that they get very little protection in practice. For example, the Court has always held - as it reaffirmed in Kelo v. City of New London - that property cannot be condemned unless the taking is for a "public use." Purely "private" takings are - and always have been - forbidden by the Court. However, the Court defines "public use" to include virtually any conceivable benefit to the public, even ones that might never actually materialize. As a result, the Court still lets government condemn virtually any property for virtually any reason. In theory, there is an individual right here; in practice, not so much.

Similarly, the Court has long recognized that some regulations of property that don't involve physical occupation of land by the government might might still be onerous enough to be considered "takings" requiring "just compensation" under the Fifth Amendment. However, in cases such as Lucas v. South Carolina Coastal Commission and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, the Court decided that such regulations are only presumptively considered takings if they permanently wipe out 100% of the economic value of the property in question. If a regulation wipes out 98% of the value permanently, or %100 of the value for a period of twenty years, the property owner is probably out of luck. In practice, government officials can almost always draft regulations in such a way that their impact is not quite permanent and/or allows the owner to retain some tiny percentage of his land's value. Thus, property owners have little or no real protection against regulatory takings - despite the Supreme Court's recognition of an individual right.

II. Implications for Gun Rights.

It is easy to see how this point applies to gun rights. Although Justice Scalia's majority opinion in Heller firmly establishes the Court's recognition of an individual right to bear arms, it also lists a large number of "presumptively valid" firearms regulations, including "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The opinion also recognizes the validity of "the historical tradition of prohibiting the carrying of "'dangerous and unusual weapons.'" Many of these exceptions to the right to bear arms could potentially be used to swallow up the rule. Most obviously, "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. For example, Justice Scalia emphasizes that the right to bear arms is historically rooted in the right to self-defense. State and local governments could potentially enact laws requiring would-be gun purchasers to provide extensive and specific evidence that they really do need a firearm for self-defense before allowing them to purchase guns. Larry Solum notes that Scalia's opinion also might allow prohibitively burdensome registration requirements:

Because of a concession made in oral argument, the Court's Opinion in Heller did not address the [constitutionality of DC's] licensing and registration requirements. It seems likely that simple registration requirements will survive Heller, but one obvious countermove to Heller would be to establish burdensome registration and licensing procedures. Whether such provisions would survive Heller is uncertain. One can imagine lower court judges upholding very burdensome requirements, or striking them down. Heller surely implies that extremely burdensome registration or licensing procedures would be struck down, but one can imagine a level of burden that would in practice discourage gun ownership but that might survive post-Heller scrutiny.

As my colleague and prominent Second Amendment scholar Nelson Lund points out, several of Scalia's other exceptions might also be problematic:

Scalia's opinion also includes dicta indicating that some important forms of gun control will be upheld. Examples include bans on carrying concealed weapons; disarmament of convicted felons; gun free zones in "sensitive places" like schools and government buildings; restrictions on the commercial sale of firearms; and bans on "dangerous and unusual" weapons, apparently including short-barreled shotguns and machine guns.

Some of the examples are problematic.

Is it truly consistent with the original meaning of the Second Amendment to leave an American citizen defenseless for the rest of her life because she was convicted of a non-violent felony like tax evasion or insider trading?

On what basis will courts decide whether particular places are sufficiently "sensitive" to justify disarming citizens who go there? Did New Orleans become a "sensitive" place after Hurricane Katrina, thus allowing the government to confiscate weapons from law abiding citizens whom the government did not and could not protect from roving bands of looters and criminals?

Did short-barreled shotguns, which are very useful for self-defense and in many cases superior to handguns, become "dangerous and unusual" just because Congress decided to restrict them in 1934?

Scalia himself may not intend these parts of his opinion to be interpreted so broadly. But what counts is not his personal intent but the interpretation placed on his language by lower court judges, and ultimately by swing voter justices in future Supreme Court cases clarifying Heller. The property rights experience suggests that it may be very difficult to convert judicial recognition of a constitutional right into meaningful protection for people in the real world.

Indeed, Justice Scalia's similarly ambiguous opinion in the crucial 1992 Lucas regulatory takings case has over time been rendered ineffective because swing vote justices interpreted it narrowly in the 2002 Tahoe-Sierra case (both briefly discussed above), which held that even a regulation that wipes out all the value of property for years is not presumptively considered a taking so long as it doesn't wipe it out permanently. Scalia voted with the dissenters in that case. But the court's decision turned on the views of swing voters Anthony Kennedy and Sandra Day O'Connor.

In sum, judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right. It would be a big mistake to assume otherwise.

Related Posts (on one page):

  1. My Legal Times article on Heller and the Enforcement of Rights by the Courts:
  2. Reason Symposium on Heller:
  3. Lessons for Gun Rights Supporters from the Property Rights Experience, Part II - A Narrowly Defined Right May Not be Much Better than No Right at All:
  4. Lessons For Gun Rights Supporters From the Property Rights Experience I - The Importance of Ideological Divisions on the Court:
Reason Symposium on Heller:

Reason magazine has an interesting symposium on DC v. Heller, featuring several leading experts on gun rights including my GMU colleague Joyce Malcolm and the VC's own David Kopel and Randy Barnett. Significantly, most of the symposium participants agree that the true impact of Heller will largely be determined in follow-up litigation that will decide the scope of the individual right to bear arms declared by the Court. As I explained in this post, a narrowly defined constitutional right may not be much different from no right at all.

My Legal Times article on Heller and the Enforcement of Rights by the Courts:

My article on the possible future impact of District of Columbia v. Heller came out in the Legal Times today. It can be found here (free registration unfortunately required). [UPDATE: The article can be accessed here without registration].

Here's a brief excerpt:

The Supreme Court may have endorsed an individual right under the Second Amendment to bear arms. But the District of Columbia certainly isn't leaping to implement that right.

After its defeat in District of Columbia v. Heller (2008), the D.C. Council responded by adopting new gun-control regulations that are only marginally less restrictive than the ones invalidated in Heller. Undoubtedly, the new regulations—and similar ones in other jurisdictions—will be challenged in court. It is the outcome of these future cases that will determine whether Heller has any truly significant impact.

History shows that mere judicial recognition of a right doesn't guarantee that the right will get meaningful protection. It is especially unlikely if the right is supported by jurists on only one side of the political spectrum. Judicially recognized rights also can get short shrift if the Supreme Court defines their scope narrowly.

To the delight of some and the distress of others, both these factors may limit the impact of the newly recognized individual right to bear arms.

The article builds on points I made in this series of posts. For another article outlining the highly restrictive nature of the new post-Heller DC gun regulations, see this piece by Jacob Sullum.