By Mike Dorf
Predictably, both those who favor and those who oppose stronger gun control laws have pointed to the Aurora massacre as evidence for their position. The gun control crowd has the more straightforward argument: James Holmes purchased the weapons and ammo he used to commit the massacre legally; therefore, existing state and federal laws are too lax. But the gun-rights crowd is not without an argument. They (or at least some of them) say: Miscreants will find weapons whether they are legal or not; if some law-abiding civilians had been armed themselves, they could have taken Holmes out before he fired as many rounds as he did.
Who is right in this debate? That's ultimately an empirical question that data ought to be able to answer. Consider that there is a very strong correlation between (state-by-state) rates of gun ownership and rates of per capita gun deaths, as touted here by the Violence Policy Center, a pro-gun-control group. Is that evidence that more guns mean more violence and death? Maybe, but to draw that conclusion one would also need to know the answer to two questions: (1) Are the people in the states with higher gun ownership rates simply more violent, so that homicides and suicides that would otherwise be committed in other ways are being committed with guns? And (2) Which way does the causation run? Do more people die from guns because more guns increase the risk of deaths from guns -- or does a high crime rate lead people to purchase guns to protect themselves?
There are further studies that aim to get to the bottom of such questions and, if I were a lawmaker trying to decide on gun control policy, I would want to know as much as I possibly could about what these studies show. Even then, there would be normative questions that could not be directly answered by the statistics. Suppose the evidence showed that an increased rate of gun ownership increased the aggregate risk of fatal and otherwise serious shootings by some increment. From a public health perspective, that evidence would count in favor of limiting or even banning gun ownership. But insofar as one thinks that there is a right to effective self-defense, one might think that this sort of utilitarian calculus is unfair.
Let me illustrate. I am supposing that for the average person, gun ownership raises the aggregate risk to society (including himself or herself and his or her loved ones). But there are probably some smaller number of people whose gun ownership actually makes society safer. Such a person--I'll call mine Hypothetical Harry--takes exceptional care to store his gun safely, is not prone to depression, lives alone, and lives in a dangerous neighborhood in which the criminals run away when Harry (who has a reputation as an excellent shot) brandishes his gun. We can at least imagine that the cost of a gun ban, even if justified overall, is not justified with respect to Harry. The reason the government nonetheless (hypothetically) bars Harry from owning a gun is that the government has no reliable ex ante method for separating out people like Harry from the larger number of people whose gun ownership is socially harmful. That is not to say that Harry does not experience a harm. He does: Because other people can't be trusted to own guns, he is deprived of a gun, even though his owning one would be net beneficial.
Is the ban therefore unfair to Harry? That depends on whether we think that someone like Harry ought to have a right to own a gun, even if the net effect of similarly situated people having the same right is the social cost of more violence and death--because, by hypothesis, the only way for Harry and people like Harry to have the right is for average law-abiding citizens also to have the right (as they cannot be distinguished from Harry-types ex ante). Well, do we think that?
Here it's tempting to say that depends on who "we" are, but I'll resist the temptation and note simply that most of the rights with which we are most familiar work the opposite way. Take free speech and suppose you think that some people--such as neo-Nazis and Klansmen--exercise their free speech rights in a way that is socially harmful. In much of the democratic world that would be a reason to ban the speech of Nazis and Klansmen as "hate speech" or some such. Here in the U.S., we allow Nazis and Klansmen to speak and march but not because we think their speech is valuable. We do so because we think that government officials, including judges, will be unable to distinguish between Nazis and Klansmen, on the one hand, and people whose messages, while unpopular, usefully contribute to the Holmesian marketplace of ideas. And because the costs of censoring everyone outweigh the benefits, we therefore tolerate the speech of Nazis and Klansmen. But the calculus in this example is the mirror image of the calculus I have assumed in the gun case. Under the First Amendment, we tolerate a small number of bad apples because the bunch is beneficial; by contrast, I have been assuming that with respect to guns, the overall bunch is rotten with a small number of good apples mixed in.
I would anticipate two sorts of responses from gun rights proponents. One would fight things out based on the empirical evidence. One sees this in works like John Lott's More Guns, Less Crime. That's fine. There are critiques of Lott and counter-critiques and so on. As I said, I'm chiefly interested in seeing whether gun rights might be justified even if they are not cost-justified in the aggregate. An argument that fights the assumption is not relevant to that inquiry (though of course it is relevant to a policy decision).
The second sort of response is what one sees in the Heller and McDonald decisions. It goes like this: If one were writing a new Constitution, then one might want to ask what rights are justified, but in interpreting an existing Constitution, one simply figures out what the words mean, because the people who drafted and ratified those words already made the relevant decision. And they chose to protect an individual right of gun ownership.
That second sort of response strikes me as correct, where it applies, which is to say where the text is clear. But where the meaning of the text is in dispute--as the Second Amendment certainly was pre-Heller and McDonald--an opinion that insists on grounds of text and original understanding that the political decision was made in the 18th or 19th century will come across as question-begging if not disingenuous.
Here too, the First Amendment comparison is instructive. The great free speech opinions of Holmes and Brandeis sometimes vaguely invoked the framers' generation (as when Brandeis, in his Whitney concurrence, attributed his own views to "those who won our independence"), but what made their cries in the wilderness echo across time was the normative vision they invoked. By contrast, the majority opinions in Heller and McDonald seem to say: "Maybe a flood of guns is good, maybe not, but anyway you're stuck with it."
In other words, although Heller and McDonald were the culmination of a movement of people who thought guns would make people safe, when translated from the language of conservative political activism into the originalist language of conservative jurisprudence, they lost most of their juice. In that sense, the decisions foreshadowed the joint dissent in the Obamacare case, which, as Professor Buchanan explained here a few weeks ago, converted a libertarian cri-de-coeur into a mere drafting requirement.