The shootings in Santa Barbara last week came as the NRA continues its assault, not only on legislative attempts to tighten gun laws, but also on laws that are already on the books.
We’ve almost learned to live with the difficulty of passing new gun laws, but the situation is even worse than most people imagine: now the threat of unelected, life-tenured judges undoing efforts to prevent gun violence is serious. The gun lobby is currently funding lawsuits all over America, trying to invalidate local, state, and federal gun restrictions. Important gun legislation has recently been invalidated by federal appellate judges in Illinois and California.
I’m not an expert on gun control; I don’t know the best way to stop the horrific gun crimes that traumatize communities, destroy families, and leave lives hopelessly disfigured. But I am an expert on constitutional law and I know what role judges should play in second-guessing legislative efforts to stop these tragedies: almost none.
Most of constitutional litigation is like a seesaw. If the government infringes a protected right, one side of the seesaw goes in the air and the right is lifted and protected. The more important the right, the more intense the response to government infringement. But no rights are absolute and when the government has a strong enough interest to restrict a right (and the law is closely connected to serving that interest), the other side of the seesaw rises and the protected right is correspondingly lowered.
Supreme Court decisions are chock full of legal jargon but, at the end of the day, the court usually just balances the importance of the right against the objectives asserted by the government.
This seesaw metaphor explains why you have the right to speak but not to yell fire in a crowded theatre; why you can practice your religion but not if doing so entails human sacrifice; and why you are entitled to be free from unreasonable searches and seizures but police officers don’t need a warrant to search you upon arrest because of the importance of protecting that officer from hidden weapons and imminent harm.
Let’s assume for sake of argument that somewhere between the Second Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment (the provision honest scholars like Akhil Amar at Yale use to locate the right to own guns), the Constitution does protect private gun ownership to some degree.
What does that right look like? Is it the right to keep and bear a nuclear weapon? Is it the right to have enough guns and ammunition on hand to wage war against a small city? Is it the right to carry a gun hidden in your pocket in public places like theaters and stadiums? Is it the right to have at least one loaded gun in your home to ward off intruders?
Let’s assume a total ban on all guns (something no politician is coming close to suggesting), or a total ban on all ammunition (which would make guns essentially worthless) would be unconstitutional. What about other gun control laws?
Assume a state passes a law prohibiting guns inside banks. The government’s interest, protecting people’s money, is obvious and important, and since there are usually armed officers inside banks, people are generally safe there without their own guns.
What makes this an easy case? Certainly not the text of the Constitution or its history, but a balancing of public safety, other public concerns, common sense, and the importance of the asserted right.
Now what about harder issues? Let’s assume New York studies the problem of gun violence, especially our escalating number of public massacres, and concludes that the harm caused by the tragedies as well as the perception that these massacres might happen anywhere, anytime, is so dangerous that the best tool to fight that problem is to limit the number of guns one person may have, or to limit where and how guns may be purchased, or to limit how much ammunition may be lawfully purchased within a given time frame, or all of the above.
The law is passed by leaders elected by voters. The public policy issues may be hard, but the constitutional questions should be easy. New York is trying to prevent an enormous problem and has, what judges call, a “compelling interest” it is trying to achieve. Gun massacres like Newtown and Columbine can destroy communities, families, and schools.
Judges have no expertise in how well gun control works, what measures are effective, and which unique local conditions require different solutions. Given the need to prevent horrible public mass shootings, why would we give judges a veto power over these laws unless the laws are either completely irrational or substantially destroy the right at issue?
The cities of Chicago and the District of Columbia both concluded that hand guns presented unique problems of gun violence and banned all such weapons. In both cases, the Supreme Court said those bans violated the right to own guns even though other guns were lawful in both cities. In effect, the court did its own balancing of the importance of the right (to own a hand gun in a city where other arms were lawful) against the interests asserted by both cities (lowering violence caused by handguns). This was grave constitutional error in that the court simply substituted its own judgment for that of the elected leaders of both cities on an issue of important social policy. Conservative judges who take limits on judging seriously like Richard Posner and Harvey Wilkinson, both decried these decisions as extreme examples of judicial aggression, and they were right.
There are almost 300 million guns in the United States, and there can be little debate that since the beginning of our history we believed we have a legally protected right to own them. But, like all of our rights, the government can modify, shape, and restrict gun ownership when pursuing important governmental objectives. Today, trying to prevent more massacres (or even more gun deaths and injuries in general) is a governmental interest of surpassing importance. How best to accomplish that goal is not an issue for unelected federal judges but for policy-makers who hopefully will listen to credible experts as well as their constituents. Absent a complete ban, or total irrationality, judges should simply step off the seesaw.