Do guns lead to more crimes? I think NOT

In the last 6 years the Supreme Court accomplished something it had never attempted since the founding of our country. The court examined, defined, incorporated, and applied to the states the protection of an individual’s right to possess a firearm in their home for private self-defense. Although the court’s rulings in Heller and McDonald are considered landmark cases in our country’s jurisprudence; both rulings essentially left judges, legislators, and citizens with more questions than answers.

In June 2008 the United States Supreme Court performed a thorough and in-depth examination into the meaning of the Second Amendment. In the case of District of Columbia v. Heller (2008), with Justice Scalia writing for the majority, the court held that the Second Amendment protects an individual’s right to possess a firearm in their home for self-defense. However, Justice Scalia made it clear that this right, like other rights, is not unlimited. (Scalia, 2008) “ Nothing in our opinion should be taken to cast doubt on 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” (Scalia, 2008, p.54). 

While many scholars identify numerous issues within the 64 page opinion, arguably the most important issue is the fact that the District of Columbia is not a state. Rather it is a federal district, and therefore this ruling and newly identified right apply only to the laws and actions of the federal government (Blackman, 2011). As a result, two questions arise, whether this right should be protected from state actions, and if so, under what constitutional provision should it be incorporated (Thomas, 2010)? Those two questions were answered in June 2010 in the case of McDonald v. City of Chicago (2010).

Writing for the majority in McDonald v. City of Chicago (2010), Justice Alito restated that the Second Amendment right identified in Heller protects the right of an individual to possess a firearm in the home for self-defense and that “We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller” (Alito, 2010, p. 44).

Analysis of Opinions

In Heller, the court thoroughly analyzed and gave us the meaning of the Second Amendment. However, many scholars sharply criticized the courts failure to offer any clue as to the scope of the right in the Second Amendment. Furthermore, the Heller opinion did a poor job providing guidance to lower courts as to the proper method of review that should be applied (Rosenthal, Malcolm, 2011). Instead the majority’s opinion was primarily focused on defining key phrases such as “Keep and bear arms, and the people” (Miller, 2009).

In McDonald, the first half of Justice Alito’s opinion reviews the historical background of incorporating the Bill of Rights through the Fourteenth Amendment. He mentions that originally the Bill of Rights applied only to the federal government until the ratification of the Fourteenth Amendment in 1868. After a lengthy historical review, he looked at whether the right contained in the Second Amendment should be protected from unlawful state actions as well as federal. He concluded that the right is in fact protected from such unlawful actions by the states under the Due Process Clause (Alito, 2010).

In order to be considered for incorporation a right must be deemed “Fundamental to our scheme of ordered liberty” (Alito, 2010, p.4). Moreover, to be fundamental, a right must be “Deeply rooted in our nation’s history and traditions” (Alito, 2010, p.4). He concluded that the framers and those that ratified the Fourteenth Amendment believed the right to keep and bear arms was among such rights vital to our system of ordered liberty. Therefore, the right is fundamental and is fully applicable to the states (Alito, 2010).

Justice Breyer wrote a dissenting opinion that sets out numerous arguments against the Heller opinion and against incorporation of the right found in Heller. The first of four points he argues is that the fear of the federal government taking away the arms of the militia was the reason the Second Amendment was codified. He then mentions that there is no consensus in America that the possession of a firearm for self-defense is a fundamental right. Thirdly, he looks at the other rights that have been incorporated and argues that unlike those rights, the right to possess a firearm for self-defense does not advance any constitutional objective (Oyez, 2009).

Specifically, the constitutions objective to protect the rights of a minority against acts of a majority, such as the First, Fourth, and Eighth Amendments effectively do. Lastly he argues that there is a substantial reason to believe that the incorporation of this right will drastically interfere with the constitutional objectives of courts and legislatures and the states to the federal government. Essentially he claimed that states have already established extensive laws and regulations regarding firearms and by incorporating this new right, all such laws and regulations are now subject to constitutional challenges. Furthermore, he asks how federally appointed judges compared to elected representatives are better suited to answer all of the questions that are sure to arise (Oyez, 2009).

Privileges or Immunities, Due Process, and Equal Protection

Section One of the Fourteenth Amendment holds: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (U.S. Const., amend. XIV, § 1.).

Arguably, the first section contains the three most debated clauses in the United States Constitution. In modern times only rights being violated under the Due Process Clause and the Equal Protection Clause are sought for a remedy in court. Rarely is there ever a claim made under the Privileges or Immunities Clause. This is due to the extremely narrow interpretation the Supreme Court gave the Privileges or Immunities Clause in the famous Slaughterhouse Cases (1873). To develop a basic understanding of the clauses in section one it is helpful to understand the context and purpose in which the Fourteenth Amendment was ratified in 1868.

In 1833 in the case of Barron v. Baltimore, Chief Justice Marshall established that the Bill of Rights only applies to actions of the federal government, not individual state actions (Alito, 2010). The holding in Barron remained the rule of law until the ratification of the Fourteenth Amendment in 1868.  After the Civil War, Congress successfully passed legislation that established blacks and former slaves as citizens of The United States. Such legislation like the Freedman’s Bureau Act of 1866 which in part stated “That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, the constitutional right to bear arms shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery” (Volokh, 2010, p.7). In short Congress wanted to ensure that newly freed blacks were given all the same rights that white males held. However, legislation did not keep former slave owners and confederate soldiers in the South from treating blacks inhumanely (Alito, 2010).

As it became increasingly evident that simple legislation could not protect blacks and their newly recognized freedoms, the states ratified the Fourteenth Amendment. The main goals of the amendment were to establish the requirements of claiming American citizenship, to make the Bill of Rights applicable to the states via the Privileges or Immunities Clause, and to layout the protections citizens have from individual state action (Sandefur, 2010). However, before the amendment was really given a chance to fully exercise its authority the U.S. Supreme Court in the Slaughterhouse Cases (1873) gave the Privileges or Immunities Clause an extremely limited interpretation.

Justice Miller writing for the majority held “The Privileges and Immunities of citizens of the United States are those which arise out of the nature and essential character of the National government” (Nieto, 2011, p.1121).  Basically he held that the clause only protected a few rights that if not for the federal government would not exist (Nieto, 2011). Four years after its ratification, the amendment that was created to apply the Bill of Rights to the states and to protect citizens rights from unlawful state actions, appeared to be dead as a result of the Slaughterhouse Cases (1873).   

For roughly a half-century the Fourteenth Amendment saw little action in regards to cases addressing the goals the amendment was founded on. However, in the early 20^th Century the court began to look at whether or not the rights contained in the Bill of Rights could be protected from state actions under the Due Process Clause. The court eventually adopted the practice of selective incorporation, and began incorporating the Bill of Rights under the Due Process Clause and applying them to state action. It took most of the century, but eventually the court incorporated nearly all of the rights protected in the Bill of Rights (Alito, 2010).

The last amendment in the Bill of Rights to be considered for incorporation was the Second Amendment (Vernick, 2011). It wasn’t until 2008 in the Heller case that the Supreme Court found an individual right to bear arms for self-defense protected by the Second Amendment. Furthermore, it wasn’t until 2010 in the McDonald case that the Supreme Court held that the right identified in Heller was deeply rooted in our country’s history and traditions and that it was fundamental to American citizenship; therefore making it fully applicable to the states (Alito, 2010).

Someone not familiar with constitutional law probably has no idea what the Due Process Clause means or how it works. The narrow interpretation of the Privileges or Immunities Clause has been upheld for 140 years; therefore it appears safe to say that the Due Process Clause has effectively replaced the Privileges or Immunities Clause as the primary vehicle in which to limit state actions that infringe upon an individual’s rights. We shall now turn to the questions of what the Due Process Clause means and how does it work?

There are two types of due process, procedural and substantive. When there is a case claiming that some sort of state action or law is interfering or prohibiting an individual from exercising any right protected by the Fourteenth Amendment, the initial question a court asks is “Has the government deprived some person life, liberty, or property” (Geller, 2007, p.1)?   Procedural due process spells out the procedures the government must take in order to infringe or limit an individual’s right(s) (Hass, 2006). For example if the government is going to take your farm land to build a road it must give you a chance in court to challenge its taking and then justly compensate you if the state ends up actually taking it. Rights that fall under substantive due process, such as freedom of speech, may not be taken away or limited by the government unless the government can prove a compelling state interest in its reasoning and that there are no other less restrictive ways to further that interest (Geller, 2007).    

If there has been some governmental action affecting a person’s right, the next step is to look at whether or not the right affected is a fundamental right or non-fundamental right. If it’s a fundamental right, like the right to possess a firearm in the home for self-defense, any law or governmental action infringing on that right faces strict scrutiny. The burden is placed on the government to show that there is a compelling state interest that justifies their interference          (Harpaz, 2010). However, even if there is a compelling interest shown it still may not be compelling enough to justify the state’s interference in a person’s right. On the other hand if the right is non-fundamental, a law or governmental action faces a rational basis test, which is a much lower level of scrutiny. The state merely has to show a legitimate ends to their action (Geller, 2007).

The last clause in Section One of the Fourteenth Amendment is the Equal Protection Clause. The Equal Protection Clause prevents unreasonable discrimination based certain classifications (Geller, 2008). There are three levels of review applied to laws dealing with this clause and the Due Process Clause. Rational basis review requires a state merely have legitimate ends. Falling under this review would be non-fundamental rights and non-suspect classifications. A law can treat different classes of people differently so long as it falls under the rational basis review (Harpaz, 2010).

Next is intermediate scrutiny, which requires that the states purpose be legitimate, and its rationale for its treatment of different classes must be substantially significant.  Lastly we have strict scrutiny, if a state’s treatment of a class of people is based on race or if it burdens the fundamental rights of a class of people, it must prove a compelling state interest in which there is no lesser form of differential treatment available to achieve the goal of the state’s compelling interest (Harpaz, 2010).

In sum, the Fourteenth Amendment was created primarily to protect the rights set out in the Bill of Rights from state encroachment via the Privileges or Immunities clause. However, the Supreme Court stripped the Privileges or Immunities clause of any real meaning in the Slaughterhouse Cases (1873) thus rendering the clause pretty much useless. Consequently, the court developed the Due Process and Equal Protection Clauses to effectively serve in place of the Privileges or Immunities Clause. The court did so in order to incorporate the Bill of Rights and apply them to the states (Alito, 2010).

In the McDonald case the petitioners argued that the right identified in Heller should be incorporated under the Privileges or Immunities Clause and applied to the states. The Supreme Court rejected their argument but did incorporate the Heller right under the Due Process Clause (Alito, 2010). What is interesting though is that even if the petitioner’s Privileges or Immunities argument had been accepted by the court, there really would not be much of a difference in the level of protection of the right.

Even if the Heller right was incorporated under the Privileges or Immunities Clause it would still trigger strict scrutiny when addressing a state action. The right identified in Heller was officially labeled as a fundamental right and therefore any state law or action faces strict scrutiny when it clashes with this fundamental right. The next section will look at the implications and possible consequences resulting from the courts holding in McDonald.

Aftermath of Heller and McDonald and their Implications

 The question on most people’s minds following these two cases is what affect did the rulings of the court have on D.C and Chicago’s crime rates? In D.C. “From 2008-2010 homicides dropped -35%. Robbery with a gun -10.3%. Assault with a gun, -24.1%.                                Total violent crime -9.5%” (Lott, 2011)

In Chicago from “Jan-Jun 2010 and Jan-Jun 2011, murder, -14%. Robbery -3.8%. Aggravated assault and aggravated battery combined, -27.3%. Total violent crime, -8.8%” (Lott, 2011). Although the national crime rates have been dropping for years, D.C. and Chicago’s rates have surpassed it. Accordingly the notion of more guns less crime may actually have some substance to it.

 Soon after the McDonald opinion was read there was a flood of challenges against federal, state, and local gun laws and regulations. One example is the case of United States v. Skoien (2010). The challengers brought suit claiming that the federal law barring gun ownership by people convicted of domestic violence charges was a violation of their Second Amendment right to bear arms. The 3 judge panel of the 7^th Circuit Court of Appeals held the law to in fact be unconstitutional in violation of his Second Amendment right to bear arms. However, on appeal to the full 7^th Circuit Court of Appeals the court upheld the law. In its opinion the court stated that it applied intermediate scrutiny when reviewing the law (Vernick, Rutkow, Webster, Teret, 2011). Looking back to the previous section of this paper we know that intermediate scrutiny only requires that a state law be substantially related to an important governmental interest. Had the court applied strict scrutiny to the law the outcome may have been different.

What makes this case even more interesting is the fact that the court relied heavily on the findings of research regarding a few topics: the relationship between domestic violence and firearms, recidivism among domestic abusers, and the risk of guns in their homes (Vernick et al, 2011). The majority in the McDonald case held that when addressing constitutional issues, the court does not base its ruling on statistics. However, in his dissenting opinion Justice Breyer argued the exact opposite in regards to Second Amendment issues.

He states “This is a highly statistical matter. Without incorporation it’s decided by legislatures, with incorporation it’s decided by judges” (Oyez, 2009). A few moments later during oral arguments Justice Breyer goes on to say “There is always a big area where its free speech versus a whole lot of things, but not often is it free speech versus life.  When it’s free speech versus life, we very often decide in favor of life. Here every case will be one side guns on the other side life. Statistics, balancing life versus guns” (Oyez, 2009). Apparently the 7th Circuit Court of Appeals agreed with Justice Breyer’s argument that statistics must be considered.

In both the Heller and McDonald cases one of the most common criticisms of both cases are their lack of providing adequate guidance to lower courts in regards to what standard of review should be used. Obviously as just shown above, lower courts are unsure of how to weigh the right to bear arms with a state’s compelling interest.  Consequently, we can most likely expect to see significant divergence among courts and their approaches to Second Amendment cases. In other words, due to a lack of guidance from the Supreme Court, one court may hold a law unconstitutional and another court may hold a similar law constitutional.

The Supreme Courts holding in both Heller and McDonald also failed to address and provide guidance for a number of important questions. Justice Breyer mentions eight questions that lower courts are now expected to answer with no guidance from the Supreme Court. His eight questions are:

1.        Should the Second Amendment apply outside the home, the car, or at work?

2.        What types of guns are allowed or considered ok for self-defense?

3.        Does the time of day, place, or manner matter?

4.        Does the presence of a child or convicted felon in the house matter?

5.        Are special rules now needed for police and how they can pat down in search of a gun?

6.        When do registration requirements become severe to the point that they among to an unconstitutional ban?

7.        Who can possess guns?

8.        How would the right interact with a state’s ability to take appropriate measures during a national security emergency?

These are all valid questions that courts are eventually going to be faced with (Blackman, 2011, p.986). In the article by Vernick he suggests that social researchers need to be ready to help courts in answering these questions. Furthermore, he mentions that researchers also need to be prepared to assist legislators in creating laws that will not violate the Constitution (Vernick et al, 2011).

            Make no mistake; Indiana is not exempt from the implications of the Heller and McDonald cases. In 2011 Indiana enacted a law that prohibits employers from prohibiting their employees from keeping a lawfully owned firearm unloaded and locked in their vehicle while at work. Also in 2011 Indiana passed a law that prohibits local governments in from enacting any type of firearm regulation that is not mentioned in the Indiana Code. In other words Indiana’s General Assembly wanted to establish uniform firearm laws throughout all parts of the state. Therefore, unless it’s already in the Indiana Code, a city may not pass a more restrictive firearm regulation (Bischoff, 2010).

            The Supreme Court handed down two landmark decisions nearly back to back. The court identified a new right for an individual to bear arms in their home for self-defense. Furthermore, the court defined that right as being fundamental, thus warranting incorporation and application to the states under the Due Process Clause. However, the Supreme Court clearly created more questions and issues than it answered. At this very moment there are numerous cases making their way through the judicial system and it is very likely that a few of these will be heard by the Supreme Court in the near future. One such case is Britt v. State (2009), in which North Carolina became the first state in the country to hold that a law criminalizing an ex-felon from possessing a firearm to be a violation of their Second Amendment right and therefore is unconstitutional (Bone, 2010).

Conclusion

Until the Supreme Court hears and rules on more Second Amendment cases, it appears for now, that judges, legislatures, and citizens are going to have to simply deal with the implications and confusion left in the aftermath of Heller and McDonald. However, if D.C. and Chicago continue to see decreases in their violent crime rates, perhaps dealing with the implications will not be so bad for those following suit. Despite the numerous uncertainties regarding the right itself, one thing is certain. When creating laws and analyzing cases, Judges and legislators are now going to have to take into consideration empirical research when balancing life vs. guns, and they must exercise extreme caution and scrutiny in doing so. A failure to do so may result in catastrophic consequences.

References

Alito, S. (2010). Opinion of McDonald v. City of Chicago (United States of America, United States Supreme Court). Washington D.C.: United States Reports.

Bischoff. (2010, January 26). House Bill No. 1065 (The United States of America, Indiana General Assembly, House of Representatives).

Blackman, J. (2011). The constitutionality of social cost. Harvard Journal of Law & Public Policy, 34(4), 951-1042.

Bone, D. (2010). The Heller promise versus the Heller reality: Will statutes prohibiting the possession of firearms by ex-felons be upheld after Britt v. State? Journal of Criminal Law & Criminology, 100(4), 1633-1658.

Geller, M. (2007). Substantive Due Process [Scholarly project]. In National Paralegal College.

Geller, M. (2008). History of Equal Protection and the Levels of Review [Scholarly project]. In National Paralegal College.

Harpaz, L. (2010). Standards of review. Western New England University School of Law, Springfield, Massachusetts.

Hass, S. (2006). Procedural Due Process [Scholarly project]. In National Paralegal College.

Lott, J. (2011, September 30). Media silence is deafening about important gun news. Fox News

Miller, D. H. (2009). Guns as smut: Defending the home-bound Second Amendment. Columbia Law Review, 109(6), 1278-1356.

Nieto, M. (2011). The changing landscape of firearm legislation in the wake of McDonald v. City of Chicago, 130 S. CT. 3020 (2010). Harvard Journal of Law & Public Policy, 34(3), 1117-1130.

Oyez, P. (Producer). (2009). McDonald v. City of Chicago. [Audio File]. Retrieved from http://www.oyez.org/cases/2000-2009/2009/2009_08_1521

Rosenthal, L., & Malcolm, J. (2011). McDonald v. Chicago: Which standard of scrutiny should apply to gun control laws?. Northwestern University Law Review, 105(1), 437-466.

Sandefur, T. (2010). Privileges, immunities, and substantive due process. New York University Journal of Law & Liberty, 5(115), 115-172.

Scalia, A. (2008, June 26). Opinion of District of Columbia v. Heller (United States of America, The United States Supreme Court, United States Reports).

Thomas, G. (2010). Who’s afraid of original meaning? Policy Review, (164), 75-93.

U.S. Const., amend. XIV, § 1. The United States Constitution (United States of America, The U.S. National Archives, Records Administration).

Vernick, J. S., Rutkow, L, Webster, D. W., & Teret, S. P. (2011). Changing the constitutional landscape for firearms: The U.S. Supreme Court’s recent Second Amendment decisions. American Journal of Public Health, 101(11), 2021-2026.

Volokh, E. (2010) Sources on the second amendment and rights to keep arms in state constitutions. Law School, University of California Los Angeles, California.