I was planning to write something about Moore v. Madigan, No. 12-1269 (7th Cir. Dec. 11, 2012), the U.S. Court of Appeals decision earlier in the week that overturned an Illinois law that more or less bans ordinary citizens from carrying concealed weapons in public.
Judge Richard Posner, our century’s Oliver Wendell Holmes Jr., wrote the opinion. Not surprisingly, it’s a good read.
Posner irreverently mocks any attempt to wring meaning from the “original intent” of the Second Amendment (Posner is now engaged in a very unseemly but entertaining pissing match with Justice Scalia, in which both have basically said “liar, liar pants on fire!” about Posner’s New Republic review of Scalia’s grammar-school quality text on interpretation).
He also ruthlessly –nihilistically, even; Posner, like Holmes, exudes a nihilistic philosophy & style– arrays against one another conflicting empirical studies on the impact of concealed-weapons laws on violent crime (uncharacteristically, Posner misses a supporting citation: to an “expert consensus” report from the National Academy of Sciences, which declares such evidence utterly inconclusive).
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. “Based on findings from national law assessments, crossnational comparisons, and index studies, evidence is insufficient to determine whether the degree or intensity of firearms regulation is associated with decreased (or increased) violence.” Robert A. Hahn et al., “Firearms Laws and the Reduction of Violence: A Systematic Review,” 28 Am. J. Preventive Med. 40, 59 (2005); cf. John J. Donohue, “The Impact of Concealed-Carry Laws,” in Evaluating Gun Policy Effects on Crime and Violence 287, 314–21 (2003). “Whether the net effect of relaxing concealed-carry laws is to increase or reduce the burden of crime, there is good reason to believe that the net is not large…Based on available empirical data, therefore, we expect relatively little public safety impact if courts invalidate laws that prohibit gun carrying outside the home, assuming that some sort of permit system for public carry is allowed to stand.” Philip J. Cook, Jens Ludwig & Adam M. Samaha, “Gun Control After Heller: Threats and Sideshows from a Social Welfare Perspective,” 56 UCLA L. Rev. 1041, 1082 (2009)….
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). 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.
So … I was planning to write something along the lines, “the statistical debate has been won by the gun-rights team, which has (a) effectively fought the statistical battle to a standstill & (b) succceeded in getting courts to impose a liberty-preserving standard of proof on those who want to restrict guns. Point (b) — who should bear the burden of proof — is an interesting question in a liberal society, yet people will still go on and on about statistics blah blah.” Or some such.
They are beside the point because they are genuinely inconclusive.
They are beside the point because they genuinely don’t engage what psychologically motivates people’s positions here.
And they are beside the point because they ignore the real moral issues, which are ones of social meaning:
- What does it say about what people value when they want to own a cache of military-style armaments such as a “Glock,” a “SIG Sauer handgun,” and a “Bushmaster .223-Caliber Assault rifle”? (These were weapons owned, apparently, by the shooter’s mother, his first victim, who was incorrectly reported to be a kindergarten teacher at the school where the shooting spree took place; guess she was also an avid “self-defense” enthusiast?)
- What does it say about us when we permit other people to make money — lots of it — satisfying the appetite of ordinary people to own the tools of the trade of those whose profession is killing?
- How can it possibly be the case that a liberal democratic political society — the singularly most cooperative, most tolerant, most nonviolent regime known in history –lacks the power to use its law to convey that the sorts of sensibilities that a market like this caters to are truly vicious?
- Yet what would it say about us if in saying this with our law we couldn’t also acknowledge that owning various types of guns are also, for many, enmeshed with a host of very different cultural meanings–ones relating to personal virtues like self-reliance, honor, and responsibility; and to social roles and practices that intimately connect them to people, past and present, whom they do value, and very appropriately so?
- What would it say about our commitment to liberal principles if those of us who don’t belong to communities in which guns have these meanings (and in fact are puzzled by them) refused to acknowledge (or just couldn’t see; the two are connected) that those who do belong to them understandably see many kinds of gun control as expressing hostility and contempt for their values? Understandably, because in fact, many (not all!) of those who advocate gun control are motivated by (or are simply profiting from) exactly that sort of ugly, illiberal sentiment?
This is a conflict of cultural meaning that must be negotiated by law. And it should be negotiated in a way that is consistent with liberal political principles, which impose on citizens of diverse understandings the duty to show they are committed to accommodating one another, and to resisting making use of laws (whether handgun bans or “stand your ground” provisions) as expressive symbols of dominance over one another.
This is complicated. Much more complicated than the convoluted (and utterly inconclusive) multivariate regression analyses with which those involved in the “statistics” debate beat each other over the head.
And more complicated than simply mocking those who think statistics (or “history”) can solve this issue.
We don’t need nihilism in our public discourse. We need genuine liberal statesmanship.
We don’t need a Holmes. We need a Lincoln.