Wednesday, September 25, 2013

The Non-Paradoxical Role of the Supreme Court With Respect to Gun Control

By Mike Dorf

My latest Verdict column asks whether last week's mass shootings will lead to legislative action on gun control.  I suggest that the answer is no, not just because of the strength of the gun rights lobby but also because of the fact that gun rights supporters are more likely to be single-issue voters than gun control supporters are.  I then provide some analysis of the mechanism by which voter preference intensity translates into public policy.

Here I want to consider another factor: the role of the Supreme Court.  In particular, I'd like to offer a hypothesis about why the Court's pro-gun-rights rulings in DC v. Heller and McDonald v. City of Chicago did not strengthen the political position of gun control proponents.

Before coming to my hypothesis, however, I need to explain why one might have thought that Supreme Court defeats for gun control would strengthen rather than weaken the position of control proponents. After all, Americans often regard Supreme Court decisions as vindicating particular positions.

Often, but not always.  Sometimes a Supreme Court decision can spark backlash or serve as an effective organizing tool for the losing side.  One need not endorse the view that Roe v. Wade was on the whole bad for abortion rights (and I do not endorse that view) to recognize that Roe served this organizing function for the pro-life movement.

Moreover, with respect to guns there was another reason to think that the Supreme Court's rulings in Heller and McDonald might benefit gun control proponents.  For years, gun rights proponents argued against just about any gun control measure on the ground that it could lead down a slippery slope towards the confiscation of all guns.  Some people therefore thought that by recognizing an individual constitutional right to firearms ownership, the Court would undermine the slippery-slope argument.  In this view, the slippery slope argument would ring hollow because people would understand that the courts would invalidate very intrusive gun regulations, and thus they would be willing to support more modest gun control measures.

So far it hasn't worked out that way.  Why not?

I'm sure the answer is complicated but I'll hypothesize that the Supreme Court's decisions in Heller and McDonald have worsened what my column calls the "intensity gap" between gun rights proponents and gun control proponents.

My column proceeds on the assumption that gun control proponents do not, on average, support gun control as intensely as gun rights proponents support gun rights.  But maybe that's a simplification. Maybe gun control proponents would support gun control with greater fervor if the Supreme Court were to allow serious gun control.  The idea would be that someone who favors disarming the population supports somewhat stricter background checks than we now have but understands that given the widespread availability of guns in the secondary market, stricter background checks and similar measures will have a very limited impact, so she does not care about them with great intensity.

Meanwhile, on the other side, the persistence of slippery-slopism notwithstanding Heller and McDonald, means that proponents of gun rights oppose even modest measures with nearly the same zeal that they would display in opposing more serious gun control efforts, in the event that the Supreme Court would allow such efforts.

I want to be clear that this hypothesis is just that.  Moreover, it's partial.  And it may even be wrong.  We can test the hypothesis that Heller and McDonald played a substantial role in sapping the strength of the gun control movement by taking serious gun control off the table by looking to see whether the gun control movement had greater intensity before Heller and McDonald.  I haven't done the research but I'd be surprised if that were true.  So I'm left with a hypothesis that appears to fail the best seat-of-the-pants test of it that I can devise.

Nonetheless, I think there is something going on here.  At the very least, it's interesting that the legislative response to Roe by the pro-life movement has been to pass any and all manner of laws that chip away at Roe, and quite a few that clearly violate it, while so far the legislative response to Heller and McDonald by the gun control movement has been so timid.  Intensity of viewpoint strikes me as at least somewhat relevant to that difference.  And that in turn leads me to think that the space left open by the Supreme Court is relevant.  Perhaps the core difference is that since Roe, most Republican politicians have made overturning Roe a consistent policy aim, whereas Democrats have accepted Heller and McDonald.


Joe said...

Good analysis but I think you overlooked something.

Check out what I posted here.

Unknown said...

I live in Massachusetts where we have had one of the most strict firearms licensing schemes in the country since 1998. There is no gun show loophole, every single commercial and every single private transfer must be accompanied by an eFA-10 form (state version of BATFE 4473). There is no such thing as legal Internet ammunition purchasing, the state has a may issue concealed carry licensing scheme and also licenses Class III/NFA automatic weapons owners if they are deemed suitable (a term the State Supreme Court Chief Justice Ireland just discovered is not defined anywhere in statue (MGL) or regulation (CMR)). Despite these tools and despite having strong penalties on the books against straw-purchases there has never, I repeat, never been a single successful prosecution for straw-purchasing in state history. There is a thriving secondary market in firearms that eventually become crime-guns. Do you have any thoughts on how to stop non-existent/non-detectable/non-prosecutable straw-purchases in our fair state? Obviously doubling and tripling the price of private firearms and the cost of ammunition hasn't worked...

Shag from Brookline said...

Keith, do you have any stats on unsuccessful prosecutions against straw-purchasers in MA? (I assume there have been straw-purchasers but how many have been charged?)

Jim Bishop said...

I think the argument for Heller's paradoxical settling effect is premature; it overstates the impact of that decision and its acceptance by the left. Congress and the states cannot totally deprive a person of every operable firearm in their home after Heller and McDonald, but that leaves an awful lot of extremely onerous legislation on the table.

For example, although Heller says 2A protects all firearms in common use for lawful purposes, regardless of dangerousness (and applies this rule to handguns, the most criminally misused form of firearm), the left and several states insist that bans on weapons in common use but with certain arbitrary characteristics are constitutionally valid. The Court has not resolved this tension.

Ultimately I don't expect a meaningful "settling" effect until the Court fleshes out the road map it provided in those earlier cases.