Should 2nd Amendment ‘Rights’ Be Based on Facts Or Beliefs?

The Brennan Center for Justice, part of the Law School at NYU, is named after the late SCOTUS Associate Justice William Brennan, who came from a family of Irish immigrants in New Jersey and ended up serving on the Court for more than thirty years. During that time, he authored 461 majority opinions, of which perhaps the most important, Baker v. Carr, established the principle of ‘one man, one vote.’  Brennan viewed government as the ‘great equalizer,’ and the Center which bears his name is particularly busy these days insofar as our current Chief Executive seems obsessed with tilting the balance in one particular way. And if you don’t know which way I’m talking about, I’m sorry to have bothered you and please go back to sleep.

2A             In 2016 the Brennan Center held a colloquium on the 2nd Amendment which has become a more significant element in the world of scholarly jurisprudence since the landmark Heller decision handed down in 2008.  The papers presented at that meeting have just been published online, and while I intend to discuss the entire collection at some point, several of the individual contributions deserve attention, the first being the paper authored by Eric Ruben, who happens to be a Brennan Fellow specializing in 2nd-Amendment scholarship and law. I should add that I was invited but did not attend the Brennan Center event.

Ruben’s paper is extremely important because it strikes at what is perhaps the major issue confronting gun law right now, i.e., the perceptions that individuals and communities hold about the social utility of guns; i.e., do guns protect or threaten public safety?  Because even though Heller says that Americans have a ‘right’ to own a gun, on what basis can government limit that right, for example, the way that government limits free speech? After all, speech isn’t protected if you yell ‘fire’ in a crowded theater, so why should owning a gun be Constitutionally guaranteed if it is perceived that a community’s safety is threatened by a resident of that community whose house contains a gun?

This issue was addressed by Ruben with reference to Friedman v. Highland Park, where the Chicago suburb of Highland banned AR-15 rifles and large-capacity magazines because the law would “increase the public’s sense of safety,” even if the odds of a mass shooting occurring in the town were little to none. Although the case was appealed, notwithstanding a dissent from Thomas and Scalia, certiorari was denied because the town government had an interest in the public feeling safer, even if there was no evidentiary proof that the gun ban would actually make the community a safer place.

Ruben discusses examples of 1st Amendment cases where laws regulating speech were based not on actual damages caused by what someone said but the perceptions about how government viewed a certain kind of speech. But as for the 2nd Amendment, Ruben notes that other than allowing the ownership of a handgun in the home, 2nd-Amendment rulings based on perceptions is a wide-open field. Which means that the issue of gun ‘risk’ could possibly be used as a criteria for determining whether gun regulations are consonant with 2nd-Amendment ‘rights.’

If you are concerned about reducing gun violence, the importance should not be understated regarding what Ruben has to say. Gun-nut Nation rests its entire strategy for weakening gun regulations on the idea that the risk from guns is mitigated because guns keep us ‘safe.’ Now in fact, there is absolutely no evidence which even hints that such an argument can be shown to have the slightest relationship to the truth. But here is where the perception issue as a rationale for regulation becomes somewhat sticky, because in a gun-owning community the residents might want their perceptions that guns keep them safe (as opposed to representing a risk) to be protected under statute as well. But if the issue ended up in Court, we might get a more evidence-based discussion than what we currently hear from the NRA.

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