Deadly Rampage at Newtown Elementary School

12.19.12

Cerberus Divestment Decision Is a Risky Way to Combat Gun Violence

Divestment actions, boycotts, and blacklists aimed at chilling the exercise of a constitutional right can create a dangerous precedent, writes Alan Dershowitz.

I’m a strong opponent of privately owned assault weapons of the kind used in the Newtown massacre. But I’m also opposed to most forms of divestment, boycott, and blacklisting. So I had a decidedly mixed reaction when I read about Tuesday’s decision by Cerberus Capital Management to sell its stake in a company that manufactures semi-automatic weapons, and the statement from the California teacher’s retirement system that it was reviewing its investments in companies that deal in such weapons.

Having come of age during the height of McCarthyism, blacklists, and boycotts, I had bad memories when I heard about these decisions. Even when such tactics were used against the evils of South African apartheid in the 1980s, I had second thoughts. During that period, the United Nations created a blacklist of artists and entertainers who had appeared in South Africa, even including artists who defied apartheid and worked closely with their black colleagues.

In 1985, I had an exchange with Woody Allen, who was opposed to apartheid but had made a film, “The Front,” on the evils of blacklisting. In the end, he agreed with me that the United Nations was engaged in blacklisting for which there was “no excuse.”

Several years later, some radical feminists tried—fortunately without much success—to boycott bookstores that sold Playboy magazine and other material deemed offensive by them.

Now the primary object of divestment and blacklisting around the world is the Middle East’s only democracy, Israel. Despite its imperfections, no country in history faced with comparable threats, both external and internal, has ever had a better record of human rights, or has ever fought its wars with more concern for avoiding civilian casualties. Yet Stevie Wonder and other benighted artists have now decided to boycott some pro-Israel events based on pressure from the United Nations.  Divestment against Israeli companies and academic boycotts of Israeli universities are also being advocated.

So there can be a real downside to the tactic of divesting and boycotting both products and nations based on controversial policies.

My ambivalence about these tactics stems from my very strong opposition to semi-automatic weapons and other gun-related items that make it easy for distraught people such as Adam Lanza to kill so many people in such a short period of time. I want to see semi-automatic weapons made illegal. I also want individuals to decide for themselves to stop buying such guns. Economic pressure such as that by Cerberus, and that being considered by the California teacher’s retirement system, may very well help to delegitimize the sale of guns and ammunition clips that serve no proper purpose outside of military or law enforcement, which on its face seems like a good thing.

The risk is that such pressure is brought at the risk of chilling the exercise of constitutional rights—which now include the ownership and possession of at least some guns, as the Supreme Court ruled in 2008 in District of Columbia v. Heller. Whether or not we agree with the court’s reading of the Second Amendment’s highly ambiguous language, Heller is now the law, and Americans have the right to bear some arms under some circumstances.

Recall that the studios and TV networks that blacklisted in the McCarthy era also claimed to be making sound economic decisions and exercising their own First Amendment rights.

Divestment actions, boycotts, and blacklists aimed at chilling the exercise of a constitutional right—whether it be the right to free speech, the right to bear arms, or the right to choose to have an abortion—can create a dangerous precedent. During the McCarthy period, blacklists and Red Channels, both enforced by private companies with the encouragement of some government entities, were economic tactics calculated to punish artists for the exercise of their First Amendment right to assemble with others in order to redress grievances. Leftists who exercised their constitutional right to refuse to testify before the House Un-American Activities Committee were called “Fifth Amendment Communists” and were denied employment and subjected to other economic sanctions.

This is not to say that a company such as Cerberus does not have the right to make economic decisions based on its view of how the recent tragedy may affect the market for semi-automatic weapons. Moreover, Cerberus and the teacher’s pension fund have their own First Amendment rights. But recall that the studios and TV networks that blacklisted also claimed to be making sound economic decisions and exercising their own First Amendment rights.

This is all to suggest that as with most important matters, there is no free lunch. The unintended consequences of well-intended actions may produce dangerous results. The debate over how best to regulate guns is an important one, and should go forward with full vigor. But so should the debate over the use of boycotts, divestment, and other economic sanctions, particularly in the context of the exercise of constitutional rights.

On balance I prefer legislation to boycotts, blacklists, and divestments. The former is part of our open system of checks and balances and can be challenged in the courts. The latter can be imposed by a small cadre of determined individuals who are not subject to any democratic constraints. So let us pressure Congress to enact tough gun-control laws. Let us create lobby groups to offset the negative influence of the National Rifle Association. And let Americans decide, through the political processes spelled out in the Constitution, how to strike the appropriate balance between protecting our citizens from gun violence and protecting the legitimate rights of gun owners and manufacturers.