DECEMBER 28, 2012
It’s a sign of the legalization of American politics that activists worry about being thwarted by the Supreme Court even before they’ve managed to pass anything: Although they haven’t yet squeezed any new regulations through Congress or the state legislatures, gun-control advocates already fear that the Supreme Court will invalidate whatever progress they achieve.
They should stop sweating. Despite its turn to the right on gun control, the Supreme Court should almost certainly uphold any of the new regulations that have a chance of being enacted, according to the logic of its decisions in District of Columbia v. Heller and McDonald v. Chicago. Both liberal and conservative judges, from Justice John Paul Stevens on the left to Judges Richard Posner and J. Harvie Wilkinson on the right, denounced the decisions when they were handed down. But both decisions were relatively narrow, prohibiting states from imposing total bans on the firearms in the home. They shouldn’t be read to threaten the kinds of regulations that states and the federal government are currently debating--including an effective federal database for permit holders. The problem with the constitutional debate over guns, in other words, isn’t the Supreme Court’s Second Amendment decisions but an over-reading of them by a handful of lower court judges--mostly notably, Posner himself.
Heller and McDonald struck down the two most restrictive gun regulations in the country--Chicago and D.C.’s total bans on gun possession in the home. No other state or municipality had similarly sweeping bans on private gun possession, and in this sense, the Court was playing a familiar role of bringing state and local outliers in line with a national consensus. Since the decisions came down, there have been hundreds of civil and criminal challenges to gun control laws, and the vast majority of them have been unsuccessful. Unfortunately, a few lower courts have seized on language in Heller and McDonald to strike down state laws that forbid felons from possessing firearms, for example, or that require applicants for concealed carry permits to show a “good and substantial reason.”
The oddest of the lower court opinions came recently from Judge Posner in Chicago. On December 11, days before the Newton slaughter, Posner struck down Illinois’ ban on carrying a “ready to use” gun in public. Given his previous criticisms in this magazine of the Supreme Court’s Heller and McDonald decisions protecting the right to bear arms inside the home, Posner’s expansive reading of those decisions was both glib and perverse. Posner’s opinion said little about the text of the Second Amendment or what its authors may have intended about whether the right to keep and bear arms in should apply as expansively outside the home as inside it. He included a meandering section on the empirical debate about whether or not gun control laws are effective, only to conclude that “the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law.” His cavalier conclusion: “Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.”
Although the Supreme Court focused on the right to keep arms in the home, Posner read this right, which he had previously denounced, broadly rather than narrowly. “To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald,” he wrote. “It is not a property right--a right to kill a houseguest who, in a fit of aesthetic fury, tries to slash your copy of Norman Rockwell's painting, Santa with Elves." And based on this flat-footed punch line, Posner went on to extend the Supreme Court’s Second Amendment right to strike down Illinois’ broad ban on carrying ready-to-use guns in public. He said the Second Amendment applied just as expansively outside the home as inside it, without indicating what the limits of the right might be. “The interest in having sex inside one’s home is much greater than the interest in having sex on the sidewalk in front of one’s home,” Posner wrote. “But the interest in self-protection is as great outside as inside the home.” Posner’s ultimate conclusion may have been defensible, but he could have made clear that the text of the Second Amendment, and the Supreme Court decisions forbid only total bans on the right to keep arms in the home or to bear them outside – bans that no legislature except for Illinois (and the District of Columbia) have passed.
Contrast Posner’s opinion with those of other appellate courts to consider the question. Judge J. Harvie Wilkinson III, another conservative critic of the Supreme Court’s gun decisions, is, unlike Posner, a consistent advocate of judicial restraint – that is, of the idea that courts should generally defer to legislatures and decide cases narrowly rather than broadly. In refusing to decide whether the Supreme Court’s recognition of an individual right to bear arms should apply outside the home, Wilkinson presciently wrote the following in March 2011:
This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public
square. If ever there was an occasion for restraint, this would seem to be it. There is much to be said for a course of simple caution.
In a similar spirit of caution and restraint, the U.S. Court of Appeals for the Second Circuit, in August, upheld a New York law requiring people applying for a concealed carry permit to show “proper cause.” The Court stressed that, “unlike the situation in Heller where ‘[f]ew laws in the history of our Nation have come close’ to D.C.’s total ban on usable handguns in the home, New York’s restriction on firearm possession in public has a number of close and longstanding cousins.”
The Court stressed that even if the right to keep and bear arms applies outside the home (as the plain text of the amendment suggests that it may), there’s a long history and tradition of states regulating the right to carry concealed weapons. As Adam Winkler argues in his book Gunfight, laws restricting concealed carry permits to those who can show a special need to have a gun date back to the 1920s, when they were drafted by the NRA, which used to support reasonable gun regulations.
In other words, as the Second Circuit convincingly concluded, the text and history of the Second Amendment suggest there is a limited right not only to keep a gun in the home but to bear it in public: that’s why Illinois’s total ban on public gun possession couldn’t withstand constitutional scrutiny. But the Illinois ban is a national outlier. Lower courts have been systematically upholding less draconian regulations, and should uphold all of the regulations that are being debated in the wake of the Newton shooting, including laws limiting permits to carry concealed weapons to those who can show an individualized need for a firearm, and universal background checks to ensure that felons and the mentally ill can’t get access to guns (a restriction the Supreme Court signaled it would approve.) Winkler suggests that the hardest constitutional question would be an assault weapons ban, but that the Court would likely uphold such a ban as well: “Although assault weapons are commonplace in America,” he told me, “I think the Court is likely to say that they’re not commonly used for self-defense.”
And what about one of the most meaningful gun control measures: a federal registry of gun transactions of the kind that the Bureau of Alcohol, Tobacco, and Firearms is prohibited from maintaining under current law? An effective database would be far preferable to the kind of transparency vigilantism that the Journal News in Westchester exhibited by posting an interactive map with the names and addresses of handgun permit holders in its readership area. (This privacy violation provoked a Connecticut lawyer to retaliate by posting the home address and phone number of the Journal’s publisher and staff reporters.) Because the right to keep and bear arms is indeed a constitutional right, it would be no more appropriate for the federal or state governments to post the names of permit holders than it was for Alabama to try to force the NAACP to reveal its membership list – a privacy violation that the Supreme Court has said the First Amendment forbids. But an effective federal database that makes it possible for law enforcement officers to access the names of permit holders would be the kind of reasonable regulation that the Second Amendment allows.
For all of the hyperbole about the Supreme Court’s Heller and McDonald opinions, it turns out that they may have played a constructive role in the framing the current gun control debate -- prohibiting complete bans on the right to keep and bear arms but allowing sensible regulations. It’s too bad that a few overzealous judges have extended the decisions further than the Second Amendment or the Supreme Court requires.
Jeffrey Rosen is the legal affairs editor of The New Republic.