Robert Levy, co-counsel for the gun owners in the Heller Second Amendment case, makes an excellent point in his op ed on the case today. Even if the Court recognizes the existence of an individual constitutional right to bear arms, that doesn't necessarily mean that the right will get any effective protection. The Court might recognize the existence of the right, but defer to the government in defining its scope, thereby effectively leaving the right to the tender mercies of the very officials whom constitutional rights are intended to protect against:
[C]an Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible....
If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.
Recognition of a "right that cannot be enforced" is exactly what the Court has often done in the field of property rights. As I noted in my last post, the Court - especially in recent years - has often held that individuals are entitled to protection for property rights under the Fifth Amendment's Takings Clause and other constitutional provisions. However, they have heavily deferred to the government in defining the scope of those rights, often effectively negating them as meaningful protections for individuals targeted by the state. For example, the Court has allowed government nearly unlimited authority to define the scope of what constitutes a "public use" justify condemnation of private property under the Fifth Amendment. Entrusting the political branches of government with the authority to define the scope of a constitutional right is much like giving wolves the power to determine how much access they will have to the chicken coop. The chickens - especially those who lack political influence over the wolfpack - are unlikely to last very long.
Unlike some of my co-conspirators I don't have the expertise to opine on the question of how far a constitutional right to bear arms should extend. However, experience in other areas of constitutional law suggests that any victory for individual rights will be a hollow one if the Court defers to the government in determining how broad the right should be.
There is perhaps, some symbolic value in having the Court recognize the existence of a right, even if it doesn't give the right any real protection. But that symbolic value must be weighed against the danger that the public will assume that the judiciary is actually enforcing the right even when it isn't. Given the rational ignorance of most voters, there is a real danger that the public will assume that a judicial decision recognizing the existence of a right without giving it any real protection has "solved" the problem of government overreaching in this area.
CONFLICT OF INTEREST WATCH: I suppose I should mention that I am an unpaid adjunct scholar at the Cato Institute, where Levy is a senior fellow, and that he has made generous financial contributions to George Mason Law School (my employer and his alma mater). I don't think any of this actually affects my evaluation of his arguments. But I note it here for the benefit of the blogging ethics mavens out there.
Related Posts (on one page):
- Watch Out for Those Sources:
- Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:
- Is the Supreme Court Pro-Business, Pro-Market, or Neither?
- Is the Business of the Court Business?
I think that this is correct (though some state courts have in fact mandated education spending increases in order to enforce a right to education). Note, however, that the political branches have stronger incentives to promote a constitutional right whose protection would require more government spending and activism than one whose protection requires limiting their own power.
As you point out, having a useful political slogan doesn't help property rights advocates too much--because they have no political constituency anyway. Having a useful political slogan helps the NRA plenty, since it is already an incredibly powerful political lobby. Judicial recognition of the right magnifies the relevant lobby's power, and the vast initial difference in power between the NRA and hapless unorganized properly owners is self-evident.
We are neck-deep in statism.
You might be able to convince a couple people not to buy a gun with that argument, but it's irrelevent to the issue at hand.
Sometimes, yeah. If the 20th century tells us anything, it's that when government go bad, they can go REALLY bad.
I may not think it is a good idea to overthrow this government by force, but I don't think that is a very good argument for banning guns because I could imagine governments that I would want to overthrow by force. On you last point, with all the empirical evidence out there on gun violence your question could be thrown back at you. "Are you really safer with a handgun ban than without or do you merely feel safer?"
You can pull a McGreevey's driver with the author of that op-ed for all i care - the point remains valid. "A right that is unenforced is no right at all."
Bingo.
The official numbers have been trending downward for some time and were less than 1500/year a couple of years ago for all guns. (It may be down to 1000 by now.) The real numbers are lower. Better investigation of a sample suggests that a significant fraction are "got away with it" murders and another significant fraction are "the family doesn't need the stigma and does need the insurance" suicides.
Please don't speak for "everyone." I don't support "the government's right to ban some types of weapons."
So it's not a given. What about Nukes? If you can figure out how to make one, knock yourself out. That capability will arrive some day and I certainly hope people are ready for it. Making a machine gun in this day and age is trivial.
If guns are useless for self-defense, why do police "need" them?
Note that police can almost always wait until they've got numbers on their side and are in better shape than the average victim. Those factors argue that police need guns even less than potential victims.
Curiously, police are rarely targetted for robbery and the like.
Besides anonymous blog posters, I mean. Im glad to hear you dont have any concern with your neighbor making biological weapons in his basement.
It would be nice if folks who advocate a specific proposal would cite the experience, if any, with that proposal. For example, "the UK's gun control laws weren't associated with any reduction in murder in the UK, therefore we should adopt them in the US."
It also helps to know US law before suggesting "stronger" or changes. (or example, surveys taken during the first round of the "assault weapons" controversy found that the typical person thought that the "right" machine gun law was significantly less strict than the actual law AND thought that the "right" law was stricter than the actual law.
If my neighbor has access to the technology to make biological weapon in their basement I wish them well. That neighbor would be made of straw. Does that mean the biological weapon would be an affliction for grasses?
If it disturbs you greatly use the provided mechanism to modify it.
Generally speaking, a ban on machine guns is far more likely to pass strict scrutiny than a ban on machine guns : while both could be argued to have a compelling government interest behind them, a ban on handguns is simply going to be less narrowly tailored and more restrictive to a given individual than a ban on machine guns would be. There simply aren't that many real benefits to a machine gun, while a handgun is kinda the only way to (reasonably) concealed carry, as well as having a few dozen other benefits.
Some weapons might be argued more as ordnance than arms (the two were fairly distinct until the 1910s or so), as well.
If there were a complete ban on everything but flintlocks, is there still a right to bear arms? If there's a complete ban on every type of communication but Morse code, isn't there still a right to freedom of speech?
The question isn't whether it's possible to keep and bear a single individual brand of arm, just as it isn't whether an individual can possibly speak something in some way. The standards are "make no law", and "shall not be infringed".
No clue what you're talking about. If you read my post, I expressly stated a lack of knowledge regarding the arguments for and against gun control. I do not have a position one way or the other.
I also notice that you still havent answered my question.
I was a student when the California assault weapons ban took effect. A few days before it hit I was in a gun store and it was the topic of discussion. A San Jose police officer who was a recent emigrant from the former Soviet Union was there buying an AR. He told me not to worry, because no matter what they ban, when the revolution comes, even a handgun or a rimfire rifle will allow you to take out a cop or a soldier and appropriate his more powerful weapons for yourself.
As you might imagine, hearing this from a uniformed police officer who had recently lived under a totalitarian regime left a lasting impression on me.
What I find disturbing it the court's desire to work backwards from the solution. Perhaps I should say "the solicitor general's desire." The 2nd Amendment is crystal clear. If they wish to ban machine guns, and that seems to be what disturbs him, do so using the provided methods. Don't decide what you want the impact of the law to be and then find accordingly. Using subterfuges such as tax laws to accomplish that just makes the court look foolish.
Don't think people should have certain weapons? Work to pass an amendment to that effect. In the case of nuclear, chemical, and biological devices that should be pretty easy. I'd even support that amendment. What I don't support is arbitrary decisions and enforcement of custom fabricated "laws."
A matter of scale - I doubt the founding fathers expected households to maintain crew served weapons such as mountain howitzers and volley guns. However, long guns and hand guns were in common civilian use. As a practical matter, the commom militia musket was just a long barreled shotgun.
The South had no intention of overthrowing the US - just to secede from it. There was no goal to impose slavery on the North, or to take over the Federal government.
In any event, the issue is only decided until someone or some group tries again.
these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution... these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?
I've always thought that the various tiers of review don't make a lot of sense, but it's surprising to hear a member of the Court deriding them as "just... sort of baggage." And about machine guns, I think a machine gun ban would be fine under strict scrutiny. One doesn't need a machine gun to defend oneself (unless a small private army is invading one's home, as in Scarface), the reasons for banning machine gun ownership are compelling - I don't see the difficulty.
I have. So that's one. I didn't have to actually fire it, thank goodness -- does that still count in your view?
That is exactly what I predict will happen. The Court is all about expanding its own power. It will do its best to make sure that the entire judicial branch gets to weigh in and regulate every aspect of this issue all across the country. The Court, as an institution, hates elected government, because THEY'RE the ones who decide which legislation lives and dies. They can't do that if they adopt a strict standard.
I think it was Kevin Drum who first made this point, but I am not sure: These "conflict of interest" things that bloggers put on their posts usually seem like excuses for the blogger to say how s/he has great connections and is "in the know" on an issue. Just saying.
Households? The specification seems arbitrary. If you mean private pwnership of ordnance, they certainly did expect it. Privately-owned ships of the era didn't even need any licensing to carry the most powerful weapons of the day. In fact, through the War of 1812, the government depended on them doing so.
I have, on three separate occasions (two resulting in shots fired).
My wife defended her life twice with firearms, once in college and once in pharmacy school.
I have family members who have had to deter burglers in the small hours of the night, again with firearms.
BTW, all this was in Encino, California - not exactly the 'hood.
Why do we have firearms? Because when seconds count, the police are only minutes away
Those 'redcoats' that Paul Revere was talking about? They were after privately held cannon and ammunition therefore, in Lexington. Those cannon were the WMD's of the day.
Here's one of the cannon itself:
http://www.concordma.com/magazine/spring05/cannons.html
With the vast majority of citizens being small farmers amd tradesman, they simply didn't have the income to purchase and maintain larger scale weapons. Frontier trading posts often had company supplied light artillery for protection. And ocean going vessels certainly carried cannon to protect themselves from pirates and recived charters as privateers from the government during wartime, which were intended to protect them from being accused as being pirates themselves.
The winter of 1774-75 was mild for New England, however the affairs of men met no tempering influences. The Committee of Safety set up by the Provincial Congress of Massachusetts (it was given the power to call out the entire militia of the colony), voted that "all kinds of warlike stores be purchased sufficient for an army of 15,000 men," and selected the village of Concord as a suitable depot, far from the reach of British Major General Thomas Gage's raids.
http://americanrevwar.homestead.com/files/LEXCON.HTM
Which President was it who, when SCOTUS handed down a ruling he didn't like, said "Let the Supreme Court enforce its own decisions"?
You must have missed yesterday's post: see here for almost daily updates on the defensive use of handguns by private citizens. Many of the cases are like Waldensian's, where the mere display of the gun was enough to cause the attacker to break off.
In Kelo the court essentially ruled that any crack-brained act of a city council counts as "due process of law" for the purpose of taking.
This is gonna be the same thing. They'll rule that the Government can make any damn regulation it cares to, because it's the Government.
Regards,
Ric
How do you propose the Court ensure that a person's constitutional right to own a gun (if it exists) is protected? In other words, what sort of prophylatic rule do you propose? Do you have trouble with any of the Court's other prophylatic rules, such as Miranda? Do you think those type of protections ensure that the Government respects an individual's cosntitutional rights?
Separately, why do you have a problem with the Court (judiciary) deferring to the other branches of Government in defining the scope of constitutional rights? Is this, as a normative matter, improper?
Andrew Jackson, IIRC.
Regarding founding-era crew served weapons &ships in particular, I'd been told once that the "grant letters of marque and reprisal, and make rules concerning captures on land and water" constituted an enumeration of authority to regulate ships' arsenals. I don't know if the person who told me that was right or not, nor do I have an easier way to check at hand than to ask here.
Now, to the important stuff:
Professor Somin, you stated, "There is perhaps, some symbolic value in having the Court recognize the existence of a right, even if it doesn't give the right any real protection." I realize you aren't arguing that this symbolic value's any more than a minimal value, but I was wondering if you could identify that value since it isn't self-evident to me. Seems to me there's no difference between a right whose existence gets denied and a right whose existence gets recognized but that can't be exercised in a practical manner, so I'm not seeing what the value of a symbolic victory would be.
Don't put the cart in front of the horse --
first establish the right against the federal government, then it can be applied against the states. Baby steps, baby steps: like when I trained my dog to get me a beer out of the refrigerator.
According to the Centers for Disease Control, 789 people were killed by accidental use of all types of firearms, for the most recent year, 2005. Scroll down to List of Detailed Tables, and click on Table 10., "Number of deaths from 113 selected causes by age: United States, 2005."
The case before the court in Heller is much different. It goes straight to the heart of a personal right. The big danger,the phrase "the right of the people " in the 2nd is also in the 1st, 4th and 9th. Any precedent that weakens that phrase is a huge danger and that is what scares the hell out of me. That would include a lowered standard of review. Because if the court grants a lowered standard of review, then that can be taken later to lower the standard elsewhere.
since the second amendment, so far, has no 14th due process jurisprudence to extend it to the states, and thus the case only applies to dc and the federal government-and not the states...its pretty hollow no matter how the justices recognize the right
Actually, in those states lucky enough to make up the Fifth Circuit, the Second is alreadyrecognized as an individual right.
The SCOTUS recognizing it as an individual right will engender a flood of lawsuits in other Circuits seeking the same outcome as that in the Fifth. What do you think the chances are plaintiffs will get it, following a friendly SCOTUS ruling, incorporated or not?
Mr. Gura argues a machine gun ban is A OK 'cause they aren't in "common use at this time". That's true, but handguns haven't been "in common use" in D.C. since 1976 and for the same reason!
The problem is that the Court is supposed to defer to the Constitution, not the "other branches." Presuming that those other branches are applying their Constitutional powers correctly - which isn't unreasonable, but a little goes a long way - is a license for abuse.
It's a pretty safe bet that if Mr. Miller had shown up with competent counsel, the court would have done whatever they had to do to uphold the conviction. The ruling would likely have been far worse than it was.
If the court were to actually take Art. I, Sec 8 seriously we'd have the entertaining spectacle of the nanny-staters arguing that the federal government's duty to regulate (train/organize) the militia, and provide for equipment and logistical support would be unbearable fiscal burden, It would divert too many resources from the gifting of taxpayer monies to the unworthy, and that the attendant nose-wiping, nagging, and intrusive prying into the affairs of the giftees would have to be cutailed to an unacceptable degree. The budgets of the nose-wiping/nagging/prying bureaucracies would suffer great damage.
(by the way, I have always liked that name since "the man from UNCLE")
I agree with your main point about have a right that is recognized but not protected is thin comfort, but I don't think property rights is a good example. Clearly the right recognized in Kelo is the right of compensation, not the right to not have your property taken. By deciding as the SC did, they expressly denied any right to KEEP property.
In the gun case I will eagerly be looking forward to the expected silly result where the "conservative" members of the court will probably decide that it is important for protection against grizzlies and to protect liberty against a potential tyrant that there is a constitutional right to have guns that would be totally ineffective against any tyrant I know of.
The logical position of "defense against tyrants" would allow SAMs and machine guns at least, Grizzlies maybe not so much...although I don't think a pistol would be the ideal weapon either.
1) Did I hear Clement right? He seemed at one point to say that a 'plastic gun' that could get through metal detectors (the Glock scare story) would have a hard time securing protection because of its lack of militia value, but that machine guns would have a much easier time meeting that standard. Isn't he conceding the 1986 law is unconstitutional? (The GHWB (41) law)
2) The language in the 1st is 'Congress shall make no law'. The language is the 2nd is 'shall not be infringed'. I have a hard time seeing how the 1st makes incorporation but the 2nd wouldn't.
A pretty large number.
How many people are killed accidentally with hand guns?
Fewer than successfully defend themselves.
Are you really safer with a handgun than without or do you merely feel safer?
Are you serious? Of course you're safer.
To my understanding, the USSC made it pretty clear in City of Boerne that it, and not Congress, was the delineator of the scope of our Constitutional rights, when it smacked down the Religious Freedom Restoration Act.
That horse left the barn a long time ago, in 1803 in fact.
Yes, but that's this week.
I'll take what I can get from that bunch.