ACSBlog: The Blog of the American Constitution Society

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6.

Part 7. Professor Tushnet: Applying the Reasonable Regulation and Solicitor General’s Standards

Casual observation indicates that the Second Amendment is part of our culture wars, but the way it is, I think, is particularly interesting. It turns out that the Second Amendment isn’t really a “red/blue” issue – that is, one that divides Republicans and Democrats – or an urban/suburban/rural issue, although of course there are correlations. Taken as a whole, Americans have a reasonably moderate position on gun policy and the Second Amendment. People believe that the Second Amendment does protect an individual right, and that fairly extensive regulations of that right are desirable. We appear to want existing gun laws enforced, and somewhat more stringent ones enacted. (In terms of our earlier discussion, it seems as if we think that the state courts’ approach to “reasonableness” is about right.)

Some part of how we experience the Second Amendment issue results from interest group politics and what Cass Sunstein calls group polarization. On both sides interest groups have, well, an interest in pounding home their messages. Insisting that you’re right and that your opponents are completely wrong-headed is good for fund-raising even if it isn’t all that good for getting the policies you supposedly favor adopted. And group polarization means that you tend to hear messages from the side you’re initially inclined to favor as more cogent and more sensible than messages from the other side. When you talk to your friends, who tend to be like you, your views get pushed to one or the other extreme.

But that’s not all that’s going on. Dan Kahan of Yale Law School and his colleagues have been doing some important survey research on why people have the views about public policy that they do. Their basic insight is that what really matters in not the substance of the policies but the way you think of yourself and your society. There’s some fancy terminology involved, but again the basic idea is simple. Some people have a generally individualist outlook, and think that it’s a good thing for everyone to look out for himself or herself. Other people have a more egalitarian and community-oriented outlook, and think that each of us has some responsibility for the well-being of the rest of us. It’s not surprising, I suppose, that the individualists tend to favor gun rights and the egalitarians tend to favor gun control.

What is interesting is that your general orientation affects your evaluation not only of the facts about gun policy but also your sense of what it means to adopt different gun policies. Egalitarians think that guns are more dangerous than individualists do, and these evaluations of the facts are quite resistant to empirical evidence. Show an egalitarian a study showing that guns in the home really don’t place young kids at a high risk of death or injury (for example, as compared to having a pool in the backyard), and the egalitarian will start raising questions about how the study was done, what its sources were, and the like. But an egalitarian won’t raise questions about a study showing that the more concealed weapons there are, the more gun injuries there are. Individualists will have exactly the opposite reaction. And this is so even though both studies are just as good (or bad) in social scientific terms. Beyond the facts, there are views about what America is. Individualists see stringent gun controls as exemplifying an almost cowardly fearfulness; egalitarians see such policies as reflecting precisely the kind of responsibility for each other that we really do have as Americans. Egalitarians see gun rights as reflecting a reckless, “cowboy” mentality; individualists seem them as demonstrating that we really are responsible for our own well-being.

But, if what’s at stake in figuring out what the Second Amendment means is the very meaning of America to you – is it a country with individualist or egalitarian values? – it’s not hard to understand why the discussion is so intractable. No one’s understanding of what America is, is going to be affected much by evidence about original understanding, how state courts have dealt with the legal questions surrounding gun control, or anything else.

So, we seem to be stuck – at least as long as our discussions deal with the Second Amendment as a place-holder for our concerns about what kind of country we are. I suggest in Out of Range that we might get unstuck by shifting attention from guns and the Second Amendment to crime control policies generally. Instead of arguing about whether more stringent gun control policies will reduce or increase crime, and whether they are consistent or inconsistent with the Second Amendment, maybe we can all start talking about other violence-control policies that don’t trigger, so to speak, our concerns about what adopting the policies say about what kind of country we are. I don’t hold myself out as an expert in crime control policy, but an example might be useful as a way of indicating what kind of thing we might talk about, even if not as an example of a policy that would actually reduce violence. So: Instead of worrying about gun control policy, why not start talking about whether it would be a good idea to increase the number of police officers patrolling the streets, and what sorts of patrols – walking the streets, riding around more frequently – would work well. 

Anyhow, that’s how I see the “problem” of the Second Amendment – not as one of constitutional interpretation that we can resolve through legal analysis, but as a cultural phenomenon that’s not really going to be resolved at all.