Last week’s horrific mass shooting at a Florida high school quickly led to an all-too-familiar pattern of “thoughts and prayers,” calls for gun control measures, counter-assertions that such calls improperly “politicize” a tragedy, and the dissection of the shooter’s background, with special focus on his mental health. Indeed, the pattern is so familiar that I was able to write the foregoing sentence without knowing anything more than that there had been another deadly attack.
How did we get stuck in this groove? There are many factors in play, but here I shall focus on just one: the US Supreme Court.
According to some proponents of stricter gun control laws, the Supreme Court has not been a major player. They argue that the Court’s Heller and McDonald decisions (in 2008 and 2010 respectively), allow nearly all of the sorts of regulations currently being proposed, even as those precedents forbid the federal and state governments from completely banning the private possession of firearms. Thus, these voices contend, the real problem is our politics, not the Supreme Court’s interpretation of the Second Amendment.
There is considerable truth to that observation, but it is not the whole truth. The Court’s jurisprudence has the potential to invalidate important—and otherwise obtainable—gun regulations. Moreover, the don’t-blame-the-Second-Amendment argument overlooks the symbolic importance of the high Court’s rulings.
What is the Question?
Before assessing the Supreme Court’s responsibility, we might usefully ask: “responsibility for what?” Perhaps mass shootings? After all, while mass shootings occurred in the US before the Heller decision, the average annual death toll from such incidents appears to have risen in the decade since. Yet even as deaths by mass shootings have increased in the US in the post-Heller period, the overall rate of violent crime—including violent crime involving firearms—has mostly continued to decline during that period.
Indeed, as Patrick Sharkey describes in his new book Uneasy Peace (summarized and usefully discussed in the New York Times and the New Yorker), the drop in violent crime by about 75 percent over the last three decades has had a transformational and almost entirely positive impact on our cities and the people who live in them. If we blame the Supreme Court for the increase in mass shooting deaths in the last decade, how do we explain the continued decline in overall violent crime that occurred in the same period?
Perhaps we have reason to think that the ready availability of firearms in the US—both before and after the Supreme Court’s Second Amendment rulings—explains why, even after declining, the rate of gun violence in the US remains substantially higher than in most other highly developed countries. So argue some gun control proponents, pointing to the experience of Australia, where a crackdown on guns preceded a decline in gun violence overall and essentially eliminated mass shootings.
Whether a similar crackdown would reduce overall violence and mass shootings in the US is hotly contested, but the debate might not matter. After all, other countries don’t have a constitutional provision like our Second Amendment. That takes most serious gun control measures off the table, right?
What the Supreme Court Precedents Allow
Not so fast, say some gun control proponents. They note that the Supreme Court has allowed substantial room for regulation. How much room? The late Justice Antonin Scalia’s opinion in Heller recognized the permissibility of five major categories of regulations:
- Government may prohibit the carrying of concealed weapons;
- Government may restrict “the possession of firearms by felons and the mentally ill”;
- Government may forbid “the carrying of firearms in sensitive places such as schools and government buildings”;
- Governments may impose “conditions and qualifications on the commercial sale of arms”; and
- Government may prohibit the carrying of “dangerous and unusual weapons.”
In short, although the Heller and McDonald cases invalidated complete bans on the right to possess handguns by otherwise law-abiding adult citizens, those rulings appear to leave federal, state, and local governments with ample authority to keep guns out of schools, to keep them out of the hands of people who are likely to be dangerous, and even to ban the most dangerous kinds of weapons. Thus, federal appeals courts have upheld laws in Maryland and the District of Columbia that ban nearly all semiautomatic rifles.
Accordingly, some observers argue that the real problem is not the Second Amendment as construed by the Supreme Court. Therefore, these gun control proponents continue, when opponents of gun control invoke the Second Amendment in public debate, they are pulling a fast one. The real obstacle to effective gun control, its proponents say, is not the Second Amendment but the power of the gun lobby, which has the ability to provide financial rewards to its friends and to unleash the wrath of its intense supporters on its foes.
The Symbolic Importance of the Supreme Court’s Second Amendment Rulings.
Is that true? Yes and no. The gun control proponents are not wrong that in many respects our politics imposes stricter limits on gun control than the Supreme Court has imposed under the Second Amendment. But one should not understate the importance of the Supreme Court cases either.
For one thing, it is not yet clear how the Supreme Court will rule on all of the issues that have occupied the lower courts. A couple of weeks ago I debated Alan Gura, the lawyer who successfully argued the Heller and McDonald cases for the gun rights side. He contended that the appeals court opinions upholding semiautomatic rifle bans are wrongly decided and that he hopes to take the issue to the Supreme Court eventually. Moreover, Mr. Gura reported that he has a very busy legal practice bringing challenges to federal, state, and local efforts to restrict firearms. He doesn’t win all of his cases, but even the credible threat of litigation may chill aggressive gun control efforts. Thus, Heller and McDonald might not lead to as much regulation in practice as the Court seemed to say it would allow in principle.
Moreover, Heller and McDonald have symbolic importance beyond their literal holdings. Although he was in dissent in a 1928 case when he made the point, Justice Louis Brandeis was surely correct when he wrote that “Government is the potent, the omnipresent teacher.” Laws and court opinions do not just resolve concrete issues; they provide moral guidance.
For example, Brown v. Board of Education invalidated de jure racial segregation in public schools but had no direct impact on race discrimination by private actors. And yet, just a decade after Brown, Congress enacted the Civil Rights Act, which extended to the private sector the basic norm the Court had announced. Public opinion shifted in the Court’s direction, even on issues the Court had not expressly addressed.
To be sure, sometimes the People reject the Supreme Court’s guidance. As Stanford Law Professor Nathaniel Persily writes in the Introduction to a 2008 book on public opinion and the Supreme Court, Supreme Court decisions can legitimate a view, but there are three other possibilities: high court rulings could have no impact on public opinion; they could spark backlash; or they could polarize public opinion. Each phenomenon can occur under the right circumstances.
Although there is some evidence for backlash and polarization around Heller and McDonald, my guess is that the Court has mostly provided legitimation for the view that the Second Amendment provides robust protection for gun ownership. I call that a mere guess, because in a poll conducted the month before the Heller case was argued in the Supreme Court nearly three quarters of Americans already thought the Second Amendment protected an individual right to own a firearm. Accordingly, we might better describe what Heller and McDonald did for the individual right view as consolidation rather than legitimation.
But consolidation itself is significant. As late as 1991, retired Chief Justice Warren Burger called the view that the Second Amendment protects an individual right to carry firearms a “fraud on the American public.” Burger’s view that the “well-regulated militia” language of the Second Amendment confined the provision’s operation to the context of militia service was eroded by what Yale Law Professor Reva Siegel aptly describes as an exercise by supporters of gun rights of “constitutional politics in the late twentieth century.” Siegel persuasively argues that, ironically, “claims and compromises forged in social movement conflict over the right to bear arms in the decades after Brown v. Board of Education” won the day in Heller in the name of the original 1791 understanding of the Second Amendment.
We can see the symbolic import of Heller and McDonald by imagining how the last decade of public debate would look if the Court had decisively ruled against the claims espoused by the gun rights movement. In that alternative universe, every time a spokesman for the NRA opposed some gun control measure on Second Amendment grounds, gun control advocates could simply say “the Second Amendment is irrelevant to this question, as even a conservative Supreme Court has acknowledged.”
True, gun control advocates can and do say that very same thing in our actual universe, pointing to Justice Scalia’s language in Heller qualifying the right. But that move is rhetorically ineffectual in public debate because the Heller that exists in the public imagination is not the Heller of technical legal doctrines. Just as in the public imagination Brown stands roughly for a principle of racial equality that has gravitational force even in the private sector where it does not technically apply, so Heller stands roughly for a principle of firearms libertarianism that transcends the limits the Heller Court itself articulated.
Put differently, Heller and McDonald offer gun right absolutists little support as constitutional law, but they ground key moves in the rhetoric of constitutional politics. So yes, it is politics, not constitutional law narrowly defined, that prevents more robust gun control in the US. However, here as in so many other contexts, the Supreme Court is a player in politics, broadly defined.