In its second landmark Second Amendment case in two years, the U.S. Supreme Court, in McDonald v. City of Chicago, considers whether the new right to possess guns in the home, declared in its 2008 ruling in District of Columbia v. Heller, is incorporated as a restraint against state and local law through the 14th Amendment.
As intriguing as the incorporation issue is as a matter of constitutional law, the ultimate significance of McDonald to ordinary Americans may turn on a different issue, not formally posed by the case but difficult to avoid as the Court considers the reach of the Heller right. The “hidden” issue in McDonald is this: To what extent is the right to keep and bear arms different in nature from the other guarantees in the Bill of Rights?
In terms of the incorporation issue, particularly under a due process clause analysis, the issue is whether the Second Amendment is as “fundamental,” or as “implicit in the concept of ordered liberty,” as other rights previously held incorporated under that test. But even if the Court decides that the Heller right meets the test for incorporation, other critical issues also will turn on whether the Second Amendment is properly analogous to other provisions of the Bill of Rights. For the future of gun control laws, the most important of these issues may be whether courts should closely scrutinize the considered judgments of state and local legislative bodies on gun control (similar to the standard of review in certain First Amendment cases) or whether they should be highly deferential to those judgments.
There is at least one respect in which the new right to have guns is vastly different than other rights. A wealth of empirical evidence shows that the exercise of the right to possess guns increases the risk of harm to individuals exercising the right, to their families and to the community at large. However the Court decides the incorporation question, its discussion of Second Amendment issues in McDonald and its future Second Amendment jurisprudence must recognize that the Second Amendment is, indisputably, the most dangerous right.
Although the Heller right is to possess a gun in the home for self-defense, there is, unfortunately, no way to guarantee that guns will be used only for that salutary purpose. In fact, the research shows that, for every time a gun in the home is used in a self-defense shooting, there are four unintentional shootings (often involving young children), seven criminal assaults (often involving domestic disputes) and 11 completed or attempted suicides.
It is unassailable that guns are simply more lethal than other weapons. Domestic assaults with firearms are more than 23 times as likely to be deadly than assaults with all other weapons or bodily force. It is hardly surprising, therefore, that the presence of a gun in the home is associated with a threefold increase in the risk of homicide and a fivefold increase in the risk of suicide. This is not to deny that guns are used in lawful self-defense of the home. The point is that gun possession, on balance, increases the risk of physical harm.
The increased risk also is borne by the community at large. As one study concluded, “an increase in gun prevalence causes an intensification of criminal violence — a shift toward greater lethality, and hence greater harm to the community.” Indeed, states with the highest levels of gun ownership have 60% higher homicide rates than states with the lowest levels of gun ownership. The more Americans decide to exercise the Heller right, the more deadly violence becomes.
Of course, it is true that the exercise of free expression, for example, also can create a risk of violence or physical injury. If that risk becomes sufficiently great, the courts will deny the protection of the First Amendment altogether. But the core exercise of freedom of expression is unlikely to pose serious risks of physical harm, particularly lethal harm. The same cannot be said about the Second Amendment right.
Indeed, the dangers necessarily posed by the widespread exercise of the right to possess guns were implicitly recognized in Heller itself. The Court went out of its way to offer reassurance about the continued constitutionality of other gun laws not as restrictive as the District of Columbia handgun ban at issue in Heller. “[N]othing in our opinion,” the Court wrote, “should be taken to cast doubt on” the constitutionality of several broad categories of gun laws, including “laws imposing conditions and qualifications on the commercial sale of arms.” The majority thus sent a strong signal to the lower courts that the Second Amendment was not to be applied to severely restrict the authority of our elected officials to ameliorate the danger posed by exercise of the new right.
Even if the Court decides to incorporate the Heller right, it should make explicit what was left implicit in Heller — that the unique risks associated with the exercise of the right to gun possession require that the courts show great deference to the elected representatives of the people in fashioning public policies to reduce those risks. Courts in states with their own constitutional guarantees of the personal right to be armed have reached a strong consensus that gun laws need only be a reasonable exercise of the police power to be upheld. If it applies the Second Amendment to the states, the McDonald Court should announce a similarly deferential standard of review.
It is unclear whether the high court will declare the Second Amendment right as “fundamental” as the other rights that have been applied to the states. But even if it does, it should confront the hard reality that this “fundamental” right is also the most dangerous right of all.
Dennis Henigan is vice president for law and policy at the Brady Center to Prevent Gun Violence, which filed briefs amicus curiae in the Heller and McDonald cases. He also is the author of Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009).