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Monday, July 23, 2012

Rights consequentionalism

Sandy Levinson argues that the ostentatiously meaningless (or meaninglessly ostentatious) demonstrations of grief by public officials and political candidates to the Aurora shootings illustrate our current inability to seriously address gun violence or any other public issues. In particular, no one is willing to discuss events like this as the price we pay for broad Second Amendment rights (much as no one is willing to discuss drunk-driving deaths as the price we pay for easy access to alcohol).

I had an exchange recently with Erica Goldberg over the felt burden of First Amendment advocates and courts to repeatedly declare that they support the principle of free expression and do not endorse or even like the often racist, sexist, homophobic, or dangerous speech they seek to protect. They regularly explain that distasteful speech is the sunk cost of a commitment to speech, because we cannot draw lines and cannot trust government to do it without risking attacks on unpopular ideas and groups. And while Sandy insists that we do not have an honest discussion of that balance, it at least is part of the rhetoric of the First Amendment.

Is it part of the Second Amendment rhetoric and do advocates share the same rhetorical burden? Must the NRA disavow James Holmes or Jared Lee Loughner? Must they explain that some gun violence is a cost of millions of law-abiding people responsibility exercising their rights? When the court strikes down a ban on automatic wepaons, must it explain (paraphrasing what Chief Justice Roberts said in Snyder), “a 100-round magazine is certainly hurtful and its contribution to self-defense or hunting may be negligible. But . . . “?

I am not sure it is part of rhetoric.The question, then, is why not?

Posted by Howard Wasserman on July 23, 2012 at 09:31 AM | Permalink


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What is the problem you are trying to solve? Is it overall gun violence or these eruptions of mass killings or both. They may not be the same. Overall murder rates are declining. There is no correlation between trends and gun laws. Chicago, which has very strict laws, is currently having an upward trend. Vermont, which is the only state to have NO gun laws seems to be a relatively law-abiding place. Countries such as the UK and Australia which have become dramatically more restrictive in recent years on gun ownership have also seen a significant increase in violent crime. A lot of this gun control rhetoric smacks of a solution in search of a problem.
On these mass killings we don't yet know enough about Holmes'condition but many of the others were clearly done by severely mentally disturbed individuals in circumstances where other people had noticed their disturbance but where our current laws and social inhibitions about being judgemental prevented timely action. You may be better off taking a look at the deinstitutionalization laws enacted in the 60s and 70s and see if there are some modifications that can be made to allow for preventative and mandatory treatment. I am not arguing for reinstatement of the old laws but there are some commonsense changes that can be made. For prevention of these types of incidents this may be the better and more practical policy route.

Posted by: Mark | Jul 23, 2012 10:20:26 PM

NRA: I am not suggesting the Second Amendment should be treated differently; I am wondering why it isn't being treated exactly like the First Amendment.

The rhetorical examples I have in mind involve more than dislike for the constitutionally protected activity simpliciter (as in abortion). Instead, they involve cases where the basic, core principle is accepted and the rhetoric is part of explaining how the acceptable core principle causes genuine physical, emotional, or other harm and that harm is simply part of the calculus. How many other constitutional rights feature both those elements?

Posted by: Howard Wasserman | Jul 23, 2012 7:47:46 PM

Good points, Michael--it may be worth thinking about this debate outside/beyond the courts. Even after Heller, there is room for legislation that restricts gun and ammunition ownership (in fact, I don't think ammunition ownership is specifically addressed in Scalia's opinion). I tend to start with the courts, but they're not the only actor here. As the initial post suggests, we might ask whether the NRA itself and gunowners more broadly ought to accept some responsibility here--if they believe gun ownership is justified in spite of the costs to society, they need to explain why. If they reject the idea of any restrictions, as the NRA seems to do, they ought to explain what benefit comes from easy access to thousands of rounds of ammunition, semi-automatic weapons, high capacity magazines, etc. The courts, advocates, and others have made the case when it comes to other rights--explaining why the rights are worth the price. Can the NRA and defenders of broad 2nd Amendment rights do the same? Or, and I hope this is the case, can they recognize that some limitations are necessary (just as they are in other areas--free speech protections are not absolute, right to privacy does not absolutely protect access to abortion, free exercise clause does not protect all acts done in the name of religion).

Posted by: Chris Edelson | Jul 23, 2012 3:50:18 PM

Perhaps one of the reasons that justices go out of their way in First Amendment cases to note their disdain for the offensive speech is that doing so is actually helping them make the larger point: the First Amendment's protections are most needed when dealing with speech that offends the majority. Thus, it's part of the theoretical and historical underpinnings of the Amendment itself.

This may also apply to the exclusionary rule rhetoric, though another reason to include the costs/benefits discussion in those cases is that the Court adopted the exclusionary rule in part to disincentive 4th Amendment violations. Emphasizing the enormous costs to society for the rule is also a way of reminding the public and the police of the costs of illegal searches and seizures.

This isn't the case for the 2nd Amendment and assault weapons, at least as far as I see. In other words, it doesn't aid the justices' 2nd Amendment arguments to point out how much they disagree with gun ownership or the costs of the Amendment protections because the rationale underlying the 2nd Amendment is not one of protecting the politically unpopular.

Posted by: Michael Teter | Jul 23, 2012 3:42:04 PM

sorry, I thought I remembered the Ct in Brandenburg explaining that it was only protecting Klan speech bc it had to--it didn't say that in Brandenburg, though---I'll substitute the recent U.S. v. Alvarez case, in which the Ct denounced Alvarez as a liar but concluded that his speech could not be criminally punished, despite the government's compelling interests in protecting the integrity of the military honors system. The Ct made clear that Alvarez was doing something that would offend many people, but said his false claim was protected "even if true holders of the Medal might experience anger and frustration".

Posted by: Chris Edelson | Jul 23, 2012 2:59:15 PM

I don't think the 2nd Amendment is being singled out--as Howard Wasserman notes in the initial post, courts explain that they are only protecting offensive speech (e.g. in Snyder v. Phelps) because they must. You say that courts don't explain that they frown on abortion, but Gonzales v. Carhart comes to mind as a counter-example, though the Court prohibited a specific abortion procedure there. Justice Kennedy described "partial birth abortion" (quotation marks bc not a medical term) in specific and grisly terms, and explained that women might come to regret having agreed to a procedure that resulted in (I'm paraphrasing) the partial birth and then grisly killing of their fetus. For other areas where the Ct notes the cost of protecting a right, the exclusionary rule comes to mind--the Ct has made clear that throwing out incriminating evidence comes at a high price that must be paid in order to give meaning to the 4th Amendment. In the context of the religion clauses, the "I Am"/Ballard case comes to mind-- Justice Douglas noted that the free exercise clause protects "extreme" views that may seem "preposterous", but that's the price we pay for protecting religious freedom. In Texas v. Johnson, Justice Brennan said those who burn the flag are attacking a cherished symbol and, though they cannot be punished for doing so, they should be persuaded they are wrong (through counterspeech). Justice Holmes made a similar point in his dissent in Abrams which provided the underpinning for the logic in Brandenburg, where the Ct acknowledged that the Klan is offensive, but still protected. The Ct made a similar point in Barnette. I think this is a fairly common constitutional theme---that specific action or speech is protected, not because it is inherently praiseworthy or useful but because protecting it serves a larger purpose. The question in terms of the 2nd Amendment is whether that larger purpose can be found e.g. when it comes to semi-automatic weapons, 100 round magazines, the ability to purchase thousands of rounds of ammunition over the internet.

Posted by: Chris Edelson | Jul 23, 2012 2:46:11 PM

I don't think the Second Amendment is unique in this respect. In opinions protecting abortion, for example, courts don't go out of their way to explain that they frown on abortion as a means of birth control. And in opinions protecting the rights of gays to engage in consensual sex, the courts do not explain that they frown on unprotected sex and the spread of disease (similar concerns could of course be expressed regarding heterosexual coupling, although we don't have judicial opinions on that matter). I'm sure other examples could be culled.

So, I suppose the real question is, why aren't concerns related to many constitutional rights part of the "rhetoric"? Is there any reason to single out the Second Amendment?

Posted by: NRA | Jul 23, 2012 2:20:51 PM

Thanks for the reply Chris Edelson.

As to Larry Rosenthal, well two things. I don't know what "the framers" "certainly" thought about every possible hypothetical.

And, the personal ownership of firearms is not merely a matter protected by the Second Amendment. Some like Saul Cornell have discussed this matter while others like Akhil Amar discussed how over time there was an understanding that the 2A was more individual rights focused. I think the Heller opinion was too limiting in that respect & I think it a shame that someone like Souter could not have found a middle ground there.

As to "owning semi-automatic rifles with high-capacity magazines for purposes unrelated to militia service" ... that is a complicated question. What is "militia service" in this context? A state regulated militia? Some potential freestanding militia that is independent of the state if it becomes a tyranny? Some, I think probably wrongly, also seem to think it IS somehow "related."

And, I don't know where the "intrinsic good" question would fall -- it's again a complex question. The 2A only addresses some uses of weapons, for instance. It was not intended to address use of guns for sport or subsistence hunting. This alone doesn't lead me to think it is "plainly" disproved by the preamble. I'm willing to accept it is.

It just seems that there is too much "self-evident truth" stuff going on here.

Posted by: Joe | Jul 23, 2012 1:43:53 PM

The Second Amendment's preamble makes it unusually clear that the right to keep and bear arms was not recognized for its intrinsic value, but rather for instrumental purposes. The Supreme Court, however, has detached the right from the purpose identified in the preamble. This move that may or may not have been defensible as a matter of legal interpretation, but once the right is detached from the purpose identified in the preamble, it can only be justified by a cost-benefit calculus far different from anything envisioned when the Second Amendment was ratified. The framers, for example, certainly did not think that owning semi-automatic rifles with high-capacity magazines for purposes unrelated to militia service was the price we must pay for living in a free society; that question never occurred to them. Accordingly, contemporary advocates of gun rights have to either argue (as DH Mazur rightly notes) that the right to bear arms is an intrinsic good (a difficult argument to make and one plainly at odds with the framers' assessment as reflected in the preamble), or advance some other argument for why there is some overriding justification for the extravagant rights enjoyed by current law -- such as the right to own a semi-automatic rifle with a high-capacity magazine. Identifying the greater good accomplished by such an extravagant notion of firearms rights is no easy task, and that, I believe, is the reason why a justification for the expansive gun rights found in current law (and perhaps not even required by the Second Amendment itself) is so rarely advanced, as Professor Wasserman oberves.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 23, 2012 12:33:34 PM

Unlike advocates for other constitutional ideals, gun-rights supporters rest on the largely circular argument that Second Amendment rights are important simply because they are Second Amendment rights. They do not articulate the benefits and costs to our understanding of those rights, because that balance, as stated in the original post, would not be persuasive to anyone. The original benefit, a well regulated militia, has been discarded by the Supreme Court, and nothing has been offered to replace it.

Second Amendment advocacy should carry the same burden of articulating cost and benefit we assign to advocacy in every other constitutional circumstance. If not a well regulated militia, then what?

A former Air Force officer and author of "A More Perfect Military: How the Constitution Can Make Our Military Stronger" (Oxford University Press)

Posted by: DH Mazur | Jul 23, 2012 12:09:13 PM

Joe, I think that's right--the accepted view seems to be that mass shootings are part of the price of a free society. The question that Howard suggests is whether this is so, and whether the benefits we get from allowing access to the kinds of weapons and ammunition I mentioned are worth the cost. I think you're also right that the political climate has ruled discussion of these questions out of bounds. I hope that stops being the case i.e. that these questions can be discussed and not just after the latest act of horror.

Posted by: Chris Edelson | Jul 23, 2012 10:44:45 AM

Perhaps, our acceptance of these events as tragic one-offs is implicitly a result of our accepting that it is part of a free society akin to being upset about car accidents, but not expecting (akin to Jesus saying the poor are always with us ... of course, there, the ends of times was felt to be near) them to be suddenly stopped any time soon.

Chief Justice Roberts and Scalia, as I recall, suggested certain types of "assault weapons" might not be covered by the 2A during oral argument. The Heller opinion cited "dangerous" weapons [a term of art, obviously, in this context] that might not fit into the protected category. The SC has only dealt with handgun possession at home.

Like the Bouemendine case, they have left the closer calls to the lower courts. Like meeting family at funerals, need we only discuss this matter after mass murders? Maybe not, but it has been largely politically off the table nationally of late, the one issue (Fast and Furious) in part a result of the idea Obama long term was trying to restrict lawful use of firearms.

Posted by: Joe | Jul 23, 2012 10:36:57 AM

Sen. Ron Johnson (R-WI) suggested that the right to own a 100 round magazine is a "basic freedom". The closest he came to acknowledging that there is a price paid for this "freedom" was when he said that "you simply can't keep these weapons out of the hands of sick,demented individuals that want to do harm." http://www.rawstory.com/rs/2012/07/22/sen-ron-johnson-100-round-rifle-magazine-is-a-basic-freedom/

I think the problem with Sen. Johnson's comments is that he doesn't fully explain the benefits of making 100 round magazines (and thousands of rounds of ammunition that can be purchased over the internet). As I mentioned, he suggested this was a matter of "basic freedom" and he asserted that 30 round magazines are commonly used in non-dangerous ways. But I think your point would help focus the discussion. Someone needs to ask Sen. Johnson (or other defenders of 2nd Amendment rights who make similar arguments): what is the specific benefit society receives when we allow people to buy 100 round magazines (or, for that matter, 30 round magazines)? The benefit we get from allowing offensive speech is that we are all protected: no one can punish my speech simply because they disagree with my point of view. What is the analogous benefit we receive when we protect these high capacity magazines--or the right to purchase thousands of rounds of ammunition or semi-automatic weapons?

I'm far from a gun expert--the closest I've come to handling a gun is shooting BB guns in camp as a kid--but I am someone who lives in the United States and worries about gun violence. I can see that there is a benefit that justifies protecting Westboro Baptist's Speech. As Howard suggests, where is the benefit that comes with protecting the weapons and ammunition I mentioned? In my view, the NRA could do a good service by saying something like: we feel strongly about the rights of hunters and law abiding citizens, but those rights can be protected without making the tools of mass murder available to the society. They could then argue that the costs of murders/suicide/accidental deaths that remain are justified by hunters' rights/self-defense (though I might disagree). However, in the current political climate, they simply don't have to do this. Neither major political party is willing to support even limited restrictions on gun/ammunition ownership, even when those limits have popular support. The NRA's power is enormous, as Rep. Carolyn McCarthy recently noted. http://thehill.com/video/house/239359-rep-mccarthy-says-colleagues-lack-spine-to-take-on-the-nra So, as it stands, the price we all pay for this is that mass shootings have become an accepted part of life in the United States. Making changes to gun laws or limiting access to ammunition wouldn't make this all go away, but I think it is incumbent on the NRA to come up with some thoughtful suggestions designed to address this problem--something more than the argument that several 2nd Amendment defenders have made (including Sen. Johnson) that the solution is to arm movie theater audiences so that they can shoot back against a man who was armed to the teeth, deploying gas canisters, and wearing body armor.

Posted by: Chris Edelson | Jul 23, 2012 9:59:25 AM

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