Some Reflections on Gun Regulation

Just today, I put my name on a letter–along with well over 50 other distinguished constitutional law professors–to support the proposition that some of the major gun control initiatives being considered in Washington are constitutionally permissible under the current legal regime established in the 2008 Supreme Court decision in District of Columbia v. Heller

The Heller decision speaks, of course, with a split tongue. On the one hand, it makes it clear that a low form of rational basis review is not high enough to meet the constitutional standards for gun regulation. Yet, on the other hand, the case does not make clear just how high the bar should be set before the Second Amendment blocks the passage of regulations on constitutional grounds.

It is well agreed by everyone that, in constitutional discourse, the outcome of the case often turns on the standard of review. But how should that be determined? As a matter of first principle, I am opposed to the use of the low rational basis test in any area of inquiry, thinking that it leaves too much running room in the hand of government. But the exact height of the barrier depends on the clarity with which a sitting judge or justice can tell right from wrong results. There are many cases where I don’t think it is that hard. Accordingly, I take the view that most economic regulation of competitive activities should fall by the wayside in any case where the regulation tends to monopoly.

Gun control laws , to say the least, do not fall into that category. There is no question that the control of the use of force is the prime danger that falls under the police power. But the means to control the use of force are difficult matters even in the best of circumstances. The major point of our joint letter was to read the “rational basis plus” language of Heller to confer some running room for Congress, not because any of us would necessarily like what they do, but in order to let profound differences on the means-to-ends connection be worked out incrementally. 

In that regard, none of us as constitutional scholars thought that we possessed–as constitutional scholars–the expertise to make the hard choices that were involved.  It is important to note the major caveat we incorporated in the joint letter: 

We express no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes the core right identified by the Court in Heller.

Unfortunately, through a garbled editorial process—so difficult to control in these circumstances–there is one sentence in that letter that did not belong, and which I had thought had been removed to focus exclusively on the constitutional issues:

Universal background checks, especially those conducted instantaneously through the National Instant Background Check System, do not impose a significant burden on law-abiding citizens.

I have no idea whether this is true or false, but I generally believe that the creation of any comprehensive system of recordation always poses some risk of government overreaching, even though I have no view on just how serious that risk is in connection with a program that has yet to be implemented.  In part, I have written this post to make clear my uneasiness with that one sentence.

I also hasten to add that not everyone agrees with my sentiments. Randy Barnett has written a forceful column that takes a close look at the assault weapon ban, finds it largely useless, and declares it unconstitutional. I surely agree with the first of those views, but I am not sufficiently confident in my judgment on this matter to attach constitutional weight to any empirical claim that is likely to provoke extensive disputes of this sort. 

Accordingly, I think that it is appropriate to note that most of the proposals for regulation strike me as misguided on simple policy grounds (speaking here as someone who has worked for many years in many substantive areas of government regulation). If forced to vote, I would oppose most of them, including the proposals to ban assault weapons and to limit the size of ammunition clips. I do not know exactly what remedy works in this area, as I have explained before in writing about the unpardonable killings in Aurora

It is highly likely, in my estimation, that spreading the regulatory net so wide will waste resources that are better devoted to dealing with more concrete manifestations of aberrant social behavior.  In similar fashion, I am skeptical that posting uniformed guards in schools could make much of a difference given the dispersed spaces that pupils occupy and the serious risk that the uniformed officers would become the first targets of an assassination attempt. 

I am also skeptical of any effort to arm teachers in schools with firearms that they have never learned to use. By the same token, however, I think there may be value in some circumstances to teachers trained in firearms carrying concealed weapons, with the hope that the fear of the unknown will deter would-be assassins. I make this claim with some diffidence, however, and am not sure of the outcome.

It is this last point that makes me nervous about signing any letter on a constitutional issue. It is not the letter that I fear; it is the use of the letter by the political persons to whom it is given in the larger public debate. A signatory like myself has no control on how the letter will be used, and no real opportunity to contradict any exaggerated claims as to what it stands for.  

Political actors aim to score points, not to make nuanced arguments on issues that are already all too inflamed. As best I can tell, the correct attitude is not to foreclose serious proposals that have major support. It is to examine them critically, but always with the understanding that the proposals we may accept for constitutional reasons, we may also oppose legislatively on practical and functional grounds. Let us hope that calmer minds will prevail on these delicate issues.

  1. CoolHand
    Troy Senik, Ed.

    Moreover, any suggestion that he shies away from discussing anything with anyone is manifestly disproved by even a moments’ interaction with the man.

    Anyone who has listened to an episode of Law Talk knows that he’s quite willing to talk a lot and make a lot or pronouncements, but he very rarely engages, even with Mr. Yoo.  He makes a pronouncement and then moves on as though that just settles the matter.

    He’s certainly not the only person to ever do this, but it’s aggravating none the less.

    Essentially, he’s just endorsed a sweeping curtailment of a fundamental human right, something he seems to have only grasped about ten minutes after he hit “send” on his letter (or more likely, dropped the envelope in the mail box, ’cause he’s old school).

    He’s obviously a smart fellow.  Why is it that he couldn’t see the obvious results that would follow from this action?

    We cant ask him, ’cause he’s not here.

    Some of us just find this irksome.

  2. The King Prawn

    Where is personal responsibility in all this? The reverse of the coin of liberty is personal responsibility. Yes, I have the liberty to own any weapon of my choosing, military design and grade or otherwise. AND, I should be held fully and unequivocally responsible for any action I take with it.

    Stop blaming the hammer for poorly driven nails. We already have enough laws against the misuse of arms. Enforce those forcefully, immediately, and even belligerantly against those who misuse firearms, and if that fails, then make a case against the weapons themselves.

  3. Devereaux

    Prof. Epstein clearly is a smart man, and has trained his thinking over the years to engage in the “logic” of the law deeply. His comments often show interesting (to me) views of legal logic – something I would often consider an oxymoron.

    Still, one has to recognize that 2A is a fiery topic for probably the majority of Americans. They may not be as schooled in law as Prof. E, but they inherently understand what their right ought to be. It is that which the FF’s based a lot of their hopes on.

    So I have to wonder what self-destructive urge drove the Professor to sign  any collective letter on the subject. Such instruments are rarely well thoughtout, nor properly contributive to the discourse, and usually only serve as a bludgeon for one side or the other.

    2A will evolve as it will. 1A did similar tumultuous time back 150 or so years ago. Regardless of the politicians’ posturing, the people WILL be heard, whether by law, court, or defiance. Stepping into this maelstrom without a specific, well-reasoned case, doesn’t seem like Prof. E’s usual approach.

  4. Byron Horatio

    I would take issue with the Professor and argue that ANY legislation on guns at the federal level is unconstitutional. It is a state matter as virtually every state constitution affirms. Because in plain reading, the Constitution explicitly says the federal government shall not infringe on the right to bear arms. States can happily and legally ban any sort of weapon they please. Unfortunately, the good professor accepts the basic premise of Progressive discourse that all such issues must be legislated at the federal level.

  5. Mauritius

    The Heller decision was certainly a victory for 2nd Amendment supporters, and I recognize the importance of citing it as “precedent”, but maybe the good professor could discuss the ways that the various gun controls adhere, or violate, to the 2nd Amendment itself – a shorter and perhaps more plainly written body of text.

  6. Keith

    Your instincts of the harm this could do is probably correct.

    I have a couple questions:

    Is this CYA, Plausible Deniability or an Apology in advance?

    Are you a Burkian libertarian?

  7. Pilli

     ”In similar fashion, I am skeptical that posting uniformed guards in schools could make much of a difference given the dispersed spaces that pupils occupy and the serious risk that the uniformed officers would become the first targets of an assassination attempt.”

    This argument is easily refuted.  First, armed guards in every situation are the first targets.  Second, if armed guards were not effective, they wouldn’t be used in banks, jewelry stores, casinos, prisons, armored cars, military bases, courtrooms, etc.

    Very weak thinking here.

  8. curtmilr

    The professor is in CYA mode, the plain language of the 2nd Amendment be damned!

    [Edited for CoC]

  9. Pilli

    “It is highly likely, in my estimation, that spreading the regulatory net so wide will waste resources that are better devoted to dealing with more concrete manifestations of aberrant social behavior.”

    But it is easier to target gun owners (not friends of the ACLU) than to target the “mentally challenged” (who are friends of the ACLU).  And therein lies a real problem.

  10. Devereaux
    Byron Horatio: I would take issue with the Professor and argue that ANY legislation on guns at the federal level is unconstitutional. It is a state matter as virtually every state constitution affirms. Because in plain reading, the Constitution explicitly says the federal government shall not infringe on the right to bear arms. States can happily and legally ban any sort of weapon they please. Unfortunately, the good professor accepts the basic premise of Progressive discourse that all such issues must be legislated at the federal level. · 37 minutes ago

    Depends on whether or not you believe in incorporation. One can argue that certain rights are basic, so NOT allowed to the states either. We shall see how 2A evolves over time.

    Regulation shouldn’t be allowed at the federal level, but the federal government has escaped control in so many ways that this would be simply another example of the same. Remember – 1934 NFA, 1968 Gun Control Act, 1986 Firearm Owners Protection Act, 1993 Brady Handgun Violence Act, 1994 “Assault Weapons” Ban, 1995 Gun Free School Zones Act. There has already been a ton of federal meddling; none of it should have been legal, but it has stood.

  11. Devin Cole
    CoolHand

    Essentially, he’s just endorsed a sweeping curtailment of a fundamental human right, something he seems to have only grasped about ten minutes after he hit “send” on his letter.

    ……………………….

    We cant ask him, ’cause he’s not here.

    I think “endorsed” is a mischaracterization of the stance Professor Epstein took.  He said that in his well educated opinion, the proposed laws are not unconsititutional, while at the same time he indicated he felt that none were going to be effective in attaining the desired means.

    As far as the willingness to engage, Mr. Senik noted that the post was submitted as Professor Epstein was on the way out the door.  I think it unkind and unfair to question the good Professor’s motives just because he has failed to deliver immediate gratification in the form of a response. 

    We know nothing of the details of the journey’s length, nor access to internet, etc.  I would note that Professor Epstein had no obligation to bring this up at all, and that his doing so indeed shows willingness to engage.

    That said, I am distressed regarding the language that was supposed to be deleted.

  12. CoolHand

    It is not the letter that I fear; it is the use of the letter by the political persons to whom it is given in the larger public debate. A signatory like myself has no control on how the letter will be used, and no real opportunity to contradict any exaggerated claims as to what it stands for.

    Should you not have considered this BEFORE you signed the damned letter?

    What is it about intellectuals that makes them wholly unable to look ahead even by a few moments and see what damage their actions will do.

    With friends like these . . .

  13. Wylee Coyote
    Richard Epstein:  Let us hope that calmer minds will prevail on these delicate issues.

    Calmer minds?

    It would seem you are not familiar with the history of gun legislation, Professor.

  14. Mike LaRoche

    What part of “shall not be infringed” don’t you understand?

  15. Austin Murrey

    The purpose of the Bill of Rights is to limit the government by allowing the people that the government is supposed to serve to resist tyranny.

    The first amendment is in place because the preferredway to stop tyranny in its tracks is to prevent government from limiting political speech by allowing dissenting voices to drawing attention to government abuses.

    The second amendment exists because if speech fails, the people should have the means to resist tyranny by force as the Founding Fathers did in the Revolutionary War.  In Colonial times a man was able to arm himself with a musket and pistol, equivalent means to combat a regular army as part of the militia of free citizens. 

    Today that means that a man should be able to arm himself with, yes, an “assault rifle” and any equivalent weaponry in use by the U.S. Army should the Army be used to impose tyranny upon the people  of the United States. 

    You can dress up the 2nd Amendment with talk of self-defence or self-sufficency, and these are important bulwarks against government abuse against the rights of a free people.  But the primary purpose should never be forgotten, or infringed.

  16. raycon and lindacon

    Professor Epstein;  The Constitution of the United States, and the Bill of Rights, were written to be understood by simpler minds than those of scholars.  We have first been educated as citizens, and then have educated ourselves beyond the basics because of a desire to be better citizens.

    Great minds wrote a Constitution that was intended for our use and understanding.  Thanks for the help, but nuanced readings of the Second Amendment, mostly based on what later scholars have said, do not clarify.  They extend opportunities for obfuscation.

    The careers of scholars might depend on getting it right in the journals.  

    The survival of our families and our nation depend on getting it right in the streets.

  17. Tom Riehl

    Most of the laws already enacted violate the 2nd amendment.  It is not about hunting deer or shooting skeet, but about citizens having equal firepower and being able to resist the government when necessitated.  The original error was in 1936, when gun regulation began.  Learn about Switzerland if you want to have a free and safe society.  They all have high-powered weapons, the same ones the government uses.

  18. Mendel
    Mike LaRoche: What part of “shall not be infringed” don’t you understand?

    Perhaps you should take this argument up with the conservatives on the Supreme Court, not Richard Epstein.

    According to the majority opinion in Heller – penned by Scalia – the government has the option of prohibiting citizens from possessing certain classes of firearms.  Regardless of what one personally thinks about the “clear language” of the 2nd amendment, until the verdict is altered by a future court, limited infringement is the law of the land.

    If you don’t like that decision (I am abivalent about it), don’t yell at some law professor, work on getting justices more conservative than Scalia nominated.  And good luck.

  19. Tom Riehl

    Raycon and lindacon said it so well.  We have the moral responsibility to protect ourselves, our families and community.  No law infringing on this basic right is allowed.  Period. 

    Use means other than impinging on that basic right to temper society.  As a start, my humble opinion is to eliminate gun-free zones.  Is that too simple a concept to be worthy of consideration by our intellectual “betters?”  Let’s discuss real alternatives and avoid legal navel gazing.

  20. Tom Riehl

    Mendel, should we have simply accepted the Supreme Court decisions that prolonged slavery?  “Shall not be infringed” are simple words with straightforward meaning.  Maybe the founders were smarter than you think.

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