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.