Gun laws shouldn’t be written by ghosts

Should facts about gun violence in America matter to federal courts when they consider the constitutionality of gun-control laws? That is not a rhetorical question. The US Supreme Court paid scant attention to the facts when it affirmed a constitutional right to bear arms in District of Columbia v Heller, a 5-4, 2008 decision authored by Justice Scalia. Relying almost exclusively on history, Heller struck down the DC ban on handguns in the home.

It was followed in December last year by a 7th Circuit Court of Appeals decision striking down an Illinois ban on carrying guns outside the home. Writing for the majority, Judge Richard Posner considered empirical evidence about the effects of carrying firearms in public, but found it inconclusive. ‘Anyway’, Posner added, ‘the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts’.

What if the casualty counts include six- and seven-year-old children? The massacre at Sandy Hook school in Newtown, Connecticut, at the end of last year provoked more grief, more demands for gun control, and more of the protests of political paralysis than usually follow the horrible news of mass shootings. But so far, fundamental gun rights have not been influenced much by news. They’ve been shaped much more by history, or rather by a divided Supreme Court’s understanding of the historical basis for the Second Amendment, which grants Americans the right to bear arms.

History has rarely seemed less relevant. Of course, the Bill of Rights should not be construed in reaction to the news of the day, however horrific, but neither should it be governed by analyses of yesterday’s news, especially when ‘yesterday’ dates back hundreds of years. The Supreme Court has rarely seemed so remote.

Read the majority opinion in Heller alongside stories about the children killed in Newtown. It’s like a letter from a judicial twilight zone. ‘Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents’, Justice Scalia explains. ‘And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists.’

Of course. That’s why the District of Columbia may not ban handgun possession today. After all, ‘a New York article of April 1769 said that “it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence”‘. I’m not mocking the recognition of Second Amendment rights, to which I have long been sympathetic. (I once tried persuading the American Civil Liberties Union to regard the Second Amendment as a grant of individual, not collective rights.) I’m not defending the very restrictive DC licensing scheme. But I would have evaluated it in light of twenty-first century facts as well as seventeenth-century history. I’m objecting to the court’s absurdly blinkered reliance on history and its refusal to balance individual gun rights today against legislative findings regarding gun violence.

The majority did acknowledge, in passing, ‘the problem of handgun violence’, noting that Second Amendment rights are not absolute, while neglecting to indicate how they might be limited. The court provided little if any guidance to legislatures or lower courts grappling with gun rights and regulations, as the dissent in Heller lamented. Recognising a right of self-defence ‘is the beginning rather than the end of any constitutional inquiry’, Justice Breyer stressed.

First, ‘what kind of constitutional standard should the court use?’, Breyer asked. The majority didn’t say. Courts generally defer to legislatures when reviewing laws that don’t implicate fundamental rights, requiring only that they bear some rational relationship to a legitimate purpose. They strictly scrutinise laws limiting fundamental rights, essentially asking if the laws are necessary to serve compelling state interests. (As Breyer notes, in the first case, laws are presumed constitutional; in the second case, they’re presumed unconstitutional.)

He proposes evaluating gun regulations using an intermediate standard, balancing public interests and individual rights. Courts use standards like this in ‘time, place, and manner’ speech regulations and in sex discrimination cases. The Second Circuit adopted a similar standard when it upheld New York State’s strict gun laws requiring people to show particular needs for self-defence in order to obtain concealed carry permits.

In balancing interests and rights in the Heller case, Breyer stresses, the court should have ‘consider[ed] the facts as the legislature saw them when it adopted the District statute’, in 1976. The Council conducted hearings and cited extensive evidence regarding handgun violence. Next, he adds, ‘consider the facts as a court must consider them looking at the matter as of today’ – referring to facts about gun violence over the past 30 years.

Perhaps the District’s gun ban would have or should have been struck down had the court adopted Breyer’s approach. Again, I’m not defending the DC law. I’m attacking the majority’s backward-looking, fact-free analysis of it. Scalia’s notion of originalism – the interpretation of constitutional provisions according to common understandings of them at the time of their enactment – has rarely seemed so irrational.

Imagine how much of an ass the law would seem if the Supreme Court had adopted a similar approach to sexual equality under the Fourteenth Amendment. It was ratified in 1868, when women were commonly understood to be intellectually and professionally inferior to men. In 1873, the Supreme Court rejected a Fourteenth Amendment challenge to an Illinois law barring women from the practice of law. ‘The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life’, a concurring opinion famously explained.

Things change (sometimes slowly), and 100 years later, in Reed v Reed, the court unanimously held that the Fourteenth Amendment did ensure some measure of sexual equality after all. The amendment was unchanged. Still, the justices (all male) did not investigate and defer to nineteenth-century beliefs that legal discrimination was natural, even divinely ordained. They ruled in accordance with twentieth-century culture and declared that an ‘arbitrary preference established in favour of males… cannot stand in the face of the Fourteenth Amendment’s command that no state deny the equal protection of the laws to any person within its jurisdiction’.

The Fourteenth Amendment no longer means what it was understood to mean at the time of its enactment. Does Justice Scalia object? Does he believe the court should have based its new interpretation of Equal Protection on some new findings about original nineteenth-century understandings of equality? Considering his approach to interpreting and applying the Second Amendment, you might expect him to insist on a historical justification for expanding the Fourteenth.

‘[W]hy would the majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge?’ Breyer asks rhetorically in Heller. ‘Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated?’

How should it be applied to circumstances that even we don’t understand? Gun violence is over-determined by cultural, legal and technological factors that defy confident analysis by twenty-first-century criminologists, sociologists and mental-health experts, among others. Regulation of gun ownership and use might or might not help alleviate the violence; so might a less celebratory approach to militarism and less post-9/11 paranoia. Who knows? I don’t, and neither do the ghosts of centuries past.

Wendy Kaminer is a lawyer, writer and free speech activist. Her most recent book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) A version of this article was first published at theatlantic.com on 17 December.