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Tuesday, March 31, 2009

Why Heller Matters (It's Probably Not Why You Think)

A recent New York Times article on Heller’s progeny suggests the hotly debated case is “firing blanks.”  Sandy Levinson (who, in full disclosure, was a professor of mine while I was in law school) is quoted as saying that “Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”  The idea is that, because Heller won't overturn many statutes, it's doesn't matter much. ( I’m sure Sandy would agree that it matters to people in the District who want to own handguns, but that is admittedly a pretty small population. The issue that the article is raising and on which Levinson is prognosticating is the broader impact on our society.)  

I disagree. Heller matters a lot.  

But the way it matters escapes most of those involved in the debate.  The effect won't be measured in terms of statutes overturned.  Instead, Heller's effects will be expressive and ultimately, as a result of its expressive influence, practical. 

Expressively, it’s probably true that, to the radical wing of the gun-rights movement, Heller and its progeny will seem like small change – their vision of Americans happily armed to the gills without any state oversight or intervention has not been vindicated.  But to the average gun owner who worried that the Constitution afforded her no protection, Heller is deeply reassuring. Consider how different Heller’s message is from the message sent by the Director of the CDC's National Center for Injury Prevention and Control under the Clinton Administration, Mark Rosenberg when the last major gun control measure was considered.  He described the Clinton administration's proposed initiative on gun violence this way: “We need to revolutionize the way we look at guns, like what we did with cigarettes. It used to be that smoking was a glamour symbol — cool, sexy, macho.  Now it is dirty, deadly — and banned.”  Even if one were trying, it would be hard to script a message more offensive to ordinary gun owners.

Practically speaking, Heller matters, too, but in ways that most in the debate miss.  The truth is that gun bans in most of the places like DC and Baltimore where gun control initiatives are popular don’t benefit the citizens of those cities by reducing crime; in fact, gun bans probably exacerbate gun violence in those cities.  Why do I think that?  Not because, as many gun-rights advocates fervently argue, more gun ownership in those cities would deter criminals, an issue on which I have no opinion.  Rather, it’s because, within the expressive economy of gun rights and regulation, gun bans in DC and other northern cities make ordinary gun owners elsewhere fear dispossession, which generates opposition to any tracking of firearms in the states where illegal guns originate – after all, in the absence of a right, gun tracking could be a way of dispossessing law-abiding gun owners in the future!  By taking complete dispossession off the table, Heller removes the central reason that moderate gun owners oppose information-gathering efforts.  

At least in that sense, Heller matters. 

Posted by Donald Braman on March 31, 2009 at 02:41 PM | Permalink


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On my blog I have a lengthy discussion of some of the issues ionvolved in Heller, which is a mixed bag that requires us to do a lot more to clarify the constitutional issues in future cases.

Posted by: Jon Roland | Apr 2, 2009 2:49:42 PM

If anyone has $20K, we could do a national survey!

Posted by: Donald Braman | Apr 1, 2009 6:22:32 PM

Donald, I don't know that I know any average gun owners. I don't know what an "average" gun owner is, so I have no idea how to classify the gun owners that I know. I wasn't challenging the point so much as wondering what it was based on - although if it's just anecdota, as it seems to be, that ought to be noted. For my own part, although I make no claims to represent some kind of average, I found Heller somewhat short of reassuring because it meant that even the D.C. ban - which seemed to violate the Second Amendment about as directly and obviously as you could ask for a test case - garnered four votes. That suggests to me that a host of only slightly less problematic potential and actual gun laws may survive scrutiny (it only takes one more vote, after all), and an ill-timed departure places this case (and various other cases, e.g. Zelman or the Alden trilogy) and all it represents in imminent danger. I don't find that reassuring, and I think that the average gun owner can probably (a) do simple math, (b) read the actuarial tables, and (c) take a fairly good guess at the likely view of anyone nominated to the court by this President on the matter.

Posted by: Simon | Apr 1, 2009 5:58:50 PM

Does it matter in the legislature? That is, does it (especially if incorporated) have a deterrent effect on any legislative inclination to enact (or try to enact) extremely restrictive gun laws, knowing that Heller is out there? I have made the argument that other precedent, that may not have much judicial impact, may nevertheless work on the legislature.

Posted by: Howard Wasserman | Apr 1, 2009 4:41:07 PM

Of course, we do not yet know the full impact of Heller, but it is possible that the Second Amendment right it recognizes will be incorporated against the states and will confer a right to carry firearms in public, at least openly. This, in turn, would confer upon gangs and drug dealers a constitutional right to appear in public armed, obtaining practical immunity from the kind of stop-and-frisk tactics that have been so effective in fighting urban crime. That outcome may not bother white rural and suburban gun owners, but it will have an enormous impact in the central cities. I advance this argument in a new article soon to appear in The Urban Lawyer:

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Apr 1, 2009 12:32:12 AM

As a gun owner, I am deeply reassured by Heller.

Posted by: Jason | Mar 31, 2009 11:21:11 PM

Hey Simon -- my claim comes only talking to the non-activist gun owners I know (in my family, in my old home town, and the surprisingly large number of gun owners I know in the DC metropolitan area). These are the folks who, if they're NRA members, it's because membership came when they joined the local shooting range, not because they are politically active on the issue. Still, to a person they all thought the DC gun ban was offensive and unconstitutional and were glad to see it go. They're also the sorts who register their firearms and think of it as a public responsibility. So, long story short, my evidence is pretty thin, but also pretty uniform. How about you? What's been your experience?

Posted by: Donald Braman | Mar 31, 2009 8:47:43 PM

I think the impact of Heller is a lot like the impact of Lawrence v. Texas. Whether the impact is small or enormous depends on where you look: Is the issue actual laws overturned? Impact on broader cultural debates? Effect on curbing political movements that would have gained strength if the opinion had come out the other way? It depends where you look, both with Heller and Lawrence.

Posted by: Orin Kerr | Mar 31, 2009 4:12:03 PM

What's the basis for your assertion that "Heller is deeply reassuring" to average gun owners? Has any empirical work been done on that point?

Posted by: Simon | Mar 31, 2009 4:09:58 PM

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