The Second Amendment, “Casualty Counts,” and the Constitutionality of Social Cost

December 12th, 2012

In Moore v. Madigan, the 7th Circuit per Judge Posner struck down Illinois’s law that forbids people from carrying a gun outside the home.

In a future post, I will write about Posner’s historical analysis, and how it jives with his frequent bouts on originalism with Justice Scalia. In this post I will look at Judge Posner’s explicit consideration of the social cost of the Second Amendment, which dovetails four points I made in The Constitutionality of Social Cost and Judging the Constitutionality of Social Cost: how an applicant’s propensity for danger impacts the social cost calculus, whether the Constitution can mean different things in different places, whether the Second Amendment should mean different things in high-crime areas, and how empirical data about the Second Amendment’s danger should be considered.

Dangerousness of Applicant Asserting 2nd Amendment Right

First, Posner’s analysis explicitly ties the dangerousness of the person seeking to exercise Second Amendment rights with the nature of the burden to limit that right.

In the Constitutionality of Social Cost, I noted that the existing precedents impose different burdens based on who is asserting the right, and how dangerous that person is.

Challenges to laws touching the Second Amendment take two forms that are connected to the who and the why of social cost and liberty. The first type—like the suits in Heller and McDon‐ ald—seeks to challenge an ex ante, or preemptive, restriction to owning or carrying a firearm, such as the denial of a license. The second type of challenges deal with an actor who has shown a propensity for violence—such as cases wherein a convicted vio‐ lent felon seeks restoration of his right to bear arms—and seeks to challenge an ex post restriction to owning or carrying a fire‐ arm, such as the reinstatement of Second Amendment rights. . . .

The inquiry is not an abstract speculation about what danger the owner of the firearm may or may not pose. Rather, the in‐ quiry revolves around the propensity or likelihood of the appli‐ cant to use the firearm dangerously. The showing of the harm must be based on something specific to the person seeking arms—not on general statistics dealing with gun ownership, a categorical approach.

If a person lacks this propensity for violence, I wrote that “the burden should remain with the State.”  However, “for those who have demonstrated a propensity for harm and are likely to inflict said harm in the future—such as violent felons—the burden should rest with the felon.”

A dividing line between those without a proven propensity for violence and those challenging rights rescinded as a result of violence enables the courts to alter based on this criterion who bears the burden of proving or disproving the threat of harm, and what level of judicial scrutiny is appropriate.

Judge Posner’s analysis gravitates around this bifurcated approach.

Construing Chief Judge Easterbrook’s en banc opinion in Skoien, Posner notes that in order to forbid a violent misdemeanant form owning a firearm, the government must “make a ‘strong showing'” about the ban’s contribution to public safety.

And a ban as broad as Illinois’s can’t be upheld merely on the ground that it’s not irrational. Ezell v. City of Chicago, 651 F.3d 684, 701 (7th Cir. 2011); United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010) (per curiam); see also Heller v. District of Columbia, supra, 554 U.S. at 628 n. 27; United States v. Chester, 628 F.3d 673, 679–80 (4th Cir. 2010). Otherwise this court wouldn’t have needed, in United States v. Skoien, 614 F.3d 638, 643–44 (7th Cir. 2010) (en banc), to marshal extensive empirical evidence to justify the less restrictive federal law that forbids a person “who has been convicted in any court of a misdemeanor crime of domestic violence” to possess a firearm in or affecting interstate commerce. 18 U.S.C. § 922(g)(9). In Skoien we said that the government had to make a “strong showing” that a gun ban was vital to public safety—it was not enough that the ban was “rational.” 614 F.3d at 641.

Stated more clearly, those who pose a risk are more easily disarmed:

 Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun. See also Ezell v. City of Chicago, supra, 651 F.3d at 708.

However strong that showing is for violent misdemeanants in Skoien–dangerous people–the showing must be greater in order to infringe the rights “entire lawabiding adult population of Illinois.”

Illinois has not made that strong showing—and it would have to make a stronger showing in this case than the government did in Skoien, because the curtailment of gun rights was much narrower: there the gun rights of persons convicted of domestic violence, here the gun rights of the entire lawabiding adult population of Illinois.

A brief note. Posner references Skoien. The en banc opinion by Chief Judge Easterbrook in Skoien was overly deferential to the government’s interest, and took great pains to marshall evidence outside the record to make the case for the government. In dissent, Judge Sykes noted “This approach fell far short of the legal heavy lifting normally required to justify criminally punishing the exercise of an enumerated constitutional right.”

When it comes to applying this standard, they give the government a decisive assist; most of the empirical data cited to sustain § 922(g)(9) has been supplied by the court. This is an odd way to put the government to its burden of justifying a law that prohibits the exercise of a constitutional right. With respect, I cannot join the en banc opinion. The court declines to be explicit about its decision method, sends doctrinal signals that confuse rather than clarify, and develops its own record to support the government’s application of § 922(g)(9) to this defendant.

Here, Posner is not willing to give a “decisive assist” to the government because the law impacts not dangerous people, but law abiding people.

Posner’s analysis continues to stress that the statute in effect applies to “responsible persons” as opposed to those with a propensity for danger.

It is not that all states but Illinois are indifferent to the dangers that widespread public carrying of guns may pose. Some may be. But others have decided that a proper balance between the interest in self-defense and the dangers created by carrying guns in public is to limit the right to carry a gun to responsible persons rather than to ban public carriage altogether, as Illinois with its meager exceptions comes close to doing.

Felons and mentally ill are inherently dangerous people:

And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill. Heller v. District of Columbia, supra, 554 U.S. at 626. Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.

But for everyone else, a strong burden remains with the state.

Posner continues to focus on the fact that “law-abiding citizens” who are at risk of murder outside the home should be allowed to use firearms to defend themselves against the criminals.

A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home, Chicago Police Dep’t, Crime at a Glance: District 1 13 (Jan.–June 2010), the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically.

This is the calculus inherent in the constitutionality of social cost.

In the end, Illinois is unable to meet its burden:

The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden.

If you notice, Posner’s opinion is most clearly does not focus on tiers of scrutiny, and barely even mentions the word. I think this approach is candid and correct.

In any event the court in Kachalsky used the distinction between self-protection inside and outside the home mainly to suggest that a standard less demanding than “strict scrutiny” should govern the constitutionality of laws limiting the carrying of guns outside the home; our analysis is not based on degrees of scrutiny, but on Illinois’s failure to justify the most restrictive gun law of any of the 50 states

Tiers of scrutiny do not matter. What matters is who bears the burden, and how strong that burden is. If the state bears a small burden, the state will win. if the state bears a real burden, it will be harder for the state to prevail.

This echoes my approach in my article, where I did not even bother focusing on scrutiny:

This Article will not present an argument in terms of scrutiny, an issue intentionally left open in McDonald and Heller. Al‐ though scrutiny tests ostensibly consider “compelling govern‐ ment interest[s]” or “substantial[] relat[ionships] to . . . important government interests,” these tests “often obscure more than they reveal.”42 The Court’s real inquiry when considering these cases is to determine “whether and when a right may be substan‐ tially burdened in order to materially reduce the danger flow‐ ing from the exercise of the right, and . . . what sort of proof must be given to show that the substantial restriction will in‐deed reduce the danger.”43 This is the question of the constitu‐ tionality of social cost that I address.

But, I do not think Posner’s opinion should be read to say that the state bears the burden of justifying why a permit should be granted–rather I think this analysis is limited to justifying the facial constitutionality of the law. Posner cites favorably (kinda) the 2nd Circuit’s approach, which requires an applicant–a law abiding one at that–to show cause.

This is the inverse of laws that forbid dangerous persons to have handguns; New York places the burden on the applicant to show that he needs a handgun to ward off dangerous persons . . . The New York gun law upheld in Kachalsky, although one of the nation’s most restrictive such laws (under the law’s “proper cause” standard, an applicant for a gun permit must demonstrate a need for self-defense greater than that of the general public, such as being the target of personal threats, id. at *3, *8), is less restrictive than Illinois’s law.

Constitution’s Geography Clause

Second, Posner focuses a bit on the fact that Illinois is the only state with such a restrictive regime (not even Massachusetts is that bad!), and this is a factor that weighs against its unconstitutionality.

Remarkably, Illinois is the only state that maintains a flat ban on carrying ready-to-use guns outside the home, though many states used to ban carrying concealed guns outside the home . . . . Not even Massachusetts has so flat a ban as Illinois, though the District of Columbia does, see D.C. . . . . Even jurisdictions like New York State, where officials have broad discretion to deny applications for gun permits, recognize that the interest in self-defense extends outside the home. There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states. If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.

This is an interesting twist on the laboratories of democracy meme: if this is such a good idea, other states would have done it. I don’t know how persuasive I find it–Illinois, along with Wisconsin (until recently), are also the only states without a right to bear arms provision in the state constitution. In any event, I think Posner, touches on an important issue. Can rights mean different things in different places.

In dissent, Judge Williams citing Justice Brandeis’s canonical–and oft misunderstood view–wrote that states should be able to experiment with Second Amendment policies:

The Supreme Court has “long recognized the role of the States as laboratories for devising solutions to difficult legal problems,” and courts “should not diminish that role absent impelling reason to do so.” Oregon v. Ice, 555 U.S. 160, 171 (2009). Indeed, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). (And to the extent it matters, Illinois is not the only place that has and enforces strict gun laws. New York City, for example, has gun laws that are in effect like those of Illinois; while technically a “may issue” location where the city may issue permits for handgun carry outside the home, New York City rarely does so and so has been characterized as maintaining a virtual ban on handguns. . . . . Reasonable people can differ on how guns should be regulated. Illinois has chosen to prohibit most forms of public carry of ready-to-use guns. It reaffirmed that just last year, when its legislature considered and rejected a measure to permit persons to carry concealed weapons in Illinois. . . . . In the absence of clearer indication that the Second Amendment codified a generally recognized right to carry arms in public for selfdefense, I would leave this judgment in the hands of the State of Illinois.

I reject this approach for reasons I noted in The Constitutionality of Social Cost–rights should not mean different things in different states. More precisely, states cannot experiment with liberty below the Constitutional floor.

Liebmann, generally remembered for Justice Brandeis’s classic dissent, considered whether the Due Process Clause of the Fourteenth Amendment prevented a state legislature from arbitrarily creating restrictions on businesses—in this case, the State had prevented Liebmann from selling ice without a li‐ cense.239 Justice Brandeis’s dissent focused on experimentation in the states with respect to matters of economic liberties, to which he found that the Constitution does not set a minimum floor.240 Contrary to Justice Stevens’s assertion, Justice Brandeis’s dissent does not permit the states to “experiment” with the pro‐ tection of federally protected constitutional rights or incorpo‐ rated enumerated rights.

The Constitution does not have a geography clause.

The Second Amendment in High-Crime Areas

Posner also has an interesting twist on how the Second Amendment should be applied in high-crime areas. Justice Breyer in his McDonald and Heller dissents wrote that the Second Amendment should be less protective of individual rights in areas with high crime.

A central thrust of Justice Breyer’s dissenting opinions in Heller and McDonald focuses on the pervasiveness of crime in urban areas and the attendant need of those municipalities to have stricter gun control laws to address that crime. Effectively, Justice Breyer seeks to provide a watered‐down version of the Second Amendment in urban areas with high crime and a prevalence of gun‐related deaths and injuries, such as the Dis‐ trict of Columbia and Chicago, based solely on those empirics. Justice Breyer fears the “unfortunate consequences that [Heller] is likely to spawn,” as he sees no “untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime‐ridden urban areas.”248 Justice Breyer argues that the District’s statute is narrowly tailored, focusing on “the presence of handguns in high‐crime urban areas.”249 Stressing the relevance of the District’s problems, the “[l]aw is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban,”250 even though the law applied to Anacostia and Georgetown equally. Further, Justice Breyer finds it constitutional to restrict access to “handguns, which are specially linked to urban gun deaths and injuries.”251

Posner takes the exact opposite–and in my mind, more realistic position. The need for a gun is even greater where the neighborhood is dangerous!

Twenty-first century Illinois has no hostile Indians. But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

I’m not sure if Justice Breyer thinks Nevis is a high crime area, and whether law-abiding citizens confronted by machete-wielding thieves have a stronger justification to defend themselves.

Dangerousness of the 2nd Amendment

Much of Posner’s opinion wades through various empirical studies linking carrying firearms outside the home and crime. Ultimately though, it seems that the literature is inconclusive.

In sum, the empirical literature on the effects of allowing the carriage of guns in public fails to establish a pragmatic defense of the Illinois law. Bishop, supra, at 922–23; Mark V. Tushnet, Out of Range: Why the Constitution Can’t End the Battle over Guns 110–11 (2007).

But what happens when the evidence is at equipoise, and the “question is close”? Do we do what Judge Wilkinson recommends, and let the tie go to the democratic process? Or to liberty?

Though Posner has written elsewhere favorably about  Wilkinson’s approach to Heller, compelled by Heller, Posner gives the tie to liberty. Why? Because the Second Amendment does not depend purely on “casualty counts” (a morbid image, but it works well).

Anyway the Supreme Court made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts. 554 U.S. at 636. If the mere possibility that allowing guns to be carried in public would increase the crime or death rates sufficed to justify a ban, Heller would have been decided the other way, for that possibility was as great in the District of Columbia as it is in Illinois.

This is a point that I think Heller commands, but Judge Wilkinson does not seem to embrace.

Posner directly addresses Wilkinson’s concerns here, and states the obvious–SCOTUS has spoken (I’m sure the fact that Heller was a Scalia opinion makes this a tougher pill to swallow).

Judge Wilkinson expressed concern in United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011), that “there may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that ‘self-defense has to take place wherever [a] person happens to be,’ appears to us to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities…. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree” (citation omitted). Fair enough; but that “vast terra incognita” has been opened to judicial exploration by Heller and McDonald. There is no turning back by the lower federal courts, though we need not speculate on the limits that Illinois may in the interest of public safety constitutionally impose on the carrying of guns in public; it is enough that the limits it has imposed go too far.

A really interesting opinion. I’ll have more shortly.