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Thursday, June 26, 2008

One Heller Snark...

Everyone else is going to say lots of substantive things about today's Supreme Court decision in Heller, the Second Amendment case. My own views are a bit complicated. But I just wanted to make one snarky observation:

Neither of the dissenting opinions suggests of Justice Scalia's majority opinion that "[i]t will almost certainly cause more Americans to be killed," Boumediene v. Bush, No. 06-1195, 2008 WL 2369628, at *65 (U.S. June 12, 2008) (Scalia, J., dissenting), even though I think that would not be an unfair characterization, whatever one believes about the Second Amendment.

Just a thought.

Posted by Steve Vladeck on June 26, 2008 at 11:04 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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Neither of the dissenting opinions suggests of Justice Scalia's majority opinion that "[i]t will almost certainly cause more Americans to be killed,"

Today's New York Times couldn't resist:

http://www.nytimes.com/2008/06/27/opinion/27fri1.html

Posted by: Bruce Boyden | Jun 27, 2008 9:16:48 PM

"Even if you think guns reduce crime, they deter crimes by killing criminals."

That, and also by presenting to potential criminals the *possibility* that your victim may be armed. Thus crime is not only prevented upon its occurence, but also at its inception.

"Thus, widespread availability of guns will quite plausibly result in 'more Americans being killed.'"

Not necessarily. See the paragraph above. If potential criminals are less inclined to commit crimes in the first place, then it's possible that this drop in crime will more than make up for the gain in deaths from victims shooting assailants.

Note also the policy implications even if the total death toll remains constant. Out of a subset of, say, 200 citizens, half criminals and half victims, wouldn't we prefer [100 dead criminals] to [50 dead criminals and 50 dead victims]? And this, to me, is simply on a normative basis, and doesn't even factor in the recidivism rate for 50 otherwise dead criminals.

Posted by: Lawyer | Jun 26, 2008 7:18:50 PM

Casey, perhaps Heller would be just like Lawrence if the Second Amendment didn't exist, and the court had found a right to bear arms buried in the due process clause, following centuries of laws banning gun use.

Posted by: anon | Jun 26, 2008 6:56:14 PM

What exactly in today's Heller opinion would lead one to think it 'dismantles the structure of constitutional law that has permitted [reasonable regulation of firearms by state and federal authorities]'?
It seems to be mainly an affirmation of the status quo--there is an individual right to bear arms, subject to certain reasonable restrictions.

Posted by: David | Jun 26, 2008 5:58:08 PM

I think a more appropriate (and even snarkier) cite for the Heller dissent would be:

"At the end of its opinion--after having laid waste the foundations of our [Second Amendment] jurisprudence--the Court says that ["nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."] Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion . . . . Today's opinion dismantles the structure of constitutional law that has permitted [reasonable regulation of firearms by state and federal authorities]." Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).

It's amazing how the sins of Kennedy's Lawrence opinion--its failure to provide a clear standard of review, its toss-away line asserting that the opinion is irrelevant to the question of same-sex marriage, its origin in movement politics--are present in Scalia's Heller opinion. Lawrence provided the template for today's decision, which is cleary, in Scalia's words, "the product of a Court, which is the product of a [conservative] law-profession culture, that has largely signed on to the so-called [gun rights] agenda."

Posted by: Casey Pitts | Jun 26, 2008 5:09:22 PM

And, moreover, it is not always clear that extra-judicial shooting of criminals, even in self-defense or defense of others, is something so unquestionably good as to enshrine as a constitutional right.

That would leave law enforcement and armed forces out as well, presumably.

Moreover, TJ, you also disagree with the Court's holding that the right to bear arms is already and has been a constitutional right?

Posted by: Jonathan | Jun 26, 2008 5:07:11 PM

Looks like Prof. Vladek really jumped the snark with this one...

Posted by: Jonathan | Jun 26, 2008 4:32:25 PM

Although this puts some ex post gloss on Steve's point, I would disagree with both Steve and Orin that this turns on whether you think widespread availability of guns facilitates or reduces crime. Even if you think guns reduce crime, they deter crimes by killing criminals. Thus, widespread availability of guns will quite plausibly result in "more Americans being killed." Those Americans might be criminals, but they are still Americans. And, moreover, it is not always clear that extra-judicial shooting of criminals, even in self-defense or defense of others, is something so unquestionably good as to enshrine as a constitutional right.

Posted by: TJ | Jun 26, 2008 4:13:10 PM

To be fair, Justice Scalia followed up his Boumediene statement with the following: "That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic." Perhaps he believes his interpretation of the Second Amendment is such a legal principle.

Posted by: Scott Dodson | Jun 26, 2008 3:38:34 PM

On a different tack from the same snark, I think it's reasonable to conclude that Justice Scalia's majority opinion in Giles v California will cost more American lives than Boumediene.

Posted by: Mark | Jun 26, 2008 3:16:41 PM

Vanceone -- Can you point us to a Supreme Court decision before today that recognizes that the Second Amendment confers an individual right upon Americans? I actually think the Court got it right today, but you make it seem like this view of the Second Amendment was well-established, and I'm curious from where you're getting that, other than non-authoritative sources...

Posted by: Anon | Jun 26, 2008 1:33:29 PM

There's also the fact that in Boumedienne, the Court just up and gave Constitutional rights to a class that never had had them before, as Kennedy admitted.

In short, the pithy statement should have been on Scalia's side: the dissenters are willing to give US Constitutional rights to those who want to kill us but are desperately trying to remove constitutional rights from American citizens. I.e. Ginsburg et. al favor enemies of the state more than US citizens.

I'm not quite sure how that can be argued with, either--give non-citizen terrorists rights while removing them from citizens is the favored policy of the liberal wing of the Supreme Court.

I suppose the next step is that Kennedy will author a decision saying that Gitmo captives should be armed (since they have 2nd amendment rights) while their guards shouldn't (because that would infringe on the new rights of our terrorist friends, who get rights our own troops don't). That would be kind of in line with his recent logic, wouldn't it?

Posted by: Vanceone | Jun 26, 2008 1:16:40 PM

Orin is certainly right that the classic divide over gun control laws is whether they make us more or less safe. But I take that to be precisely Steve's point. The classic divide over Bush's foreign policy is whether it makes us more or less safe as well. But when the Court rendered a decision that limited Bush's foreign policy in Boumedienne, the dissenters didn't treat the practical implication of that decision as one about which reasonable minds could differ. Rather, they presented it as a near-certainty that limiting Bush's policies would increase American deaths, without any recognition that many people strongly believe that Bush's policies have increased the risk of international terrorism and risk to American lives. So in today's dissents, the authors may well have done the same and expressed their (presumable) beliefs that increased gun ownership will cause more Americans to die; yet they chose not to. That they didn't resort to that kind of overheated rhetoric is a salient distinction between the judicial styles of the Justices dissenting in each of these cases.

Posted by: Dave | Jun 26, 2008 12:54:20 PM

Steve,

Ah, got it. I think I didn't see the snark in part beause this does seem to be the essence of Justice Breyer's dissent: a reasonable legislature could think the gun ban would save lives, so it is constitutional.

Posted by: Orin Kerr | Jun 26, 2008 12:51:09 PM

Orin -- Of course... I was just trying to suggest that for those who think they limit crime, they might have felt just as strongly as Justice Scalia did in Boumediene... serves me right for trying to be snarky...

Posted by: Steve Vladeck | Jun 26, 2008 12:44:48 PM

Steve,

Isn't that the classic divide over gun control laws? One side thinks they limit crime, the other thinks they expand it.

Posted by: Orin Kerr | Jun 26, 2008 12:42:38 PM

I'm a little concerned by the tone of these comments. My point was not to suggest that one is worse than the other; I meant only to suggest that the dissenters today might well feel just as strongly as Justice Scalia did in Boumediene, but chose not to resort to such rhetoric, whether overblown or not...

Posted by: Steve Vladeck | Jun 26, 2008 12:41:39 PM

Not to fight over semantics, because it is unquestionably tragic that some of the folks released from Guantanamo have gone on to commit other offenses, but (a) none of them were ordered released by a federal court; and (b) none of their victims, horrific though their deaths were, were Americans. So even if the Minority Report on which Scalia relies is correct in its data (and there are reasons to think it's not), I think it's somewhat ridiculous to suggest that guns don't kill Americans, but that individuals released from Guantanamo do...

Posted by: anon2 | Jun 26, 2008 12:39:41 PM

I think the evidence is unclear -- D.C. has a ton of gun violence despite its restrictive law, and lots of states with concealed carry laws, for instance, have much less. So I doubt the dissenters would have been so glib as to make this assertion. At least Scalia backs up his statement by discussing the former GTMO detainees who have gone on to kill people.

Posted by: Anon | Jun 26, 2008 12:30:35 PM

You're mistaken.

Is that a legal argument? Isn't there a fair argument that whether gun control is constitutional or not, it _does_ reduce the incidence of gun violence?

Posted by: Ender Wiggin | Jun 26, 2008 12:28:09 PM

I think that would not be an unfair characterization, whatever one believes about the Second Amendment.

You're mistaken.

Posted by: Charlie (Colorado) | Jun 26, 2008 12:11:15 PM

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