Thank you for sharing!

Your article was successfully shared with the contacts you provided.
If only D.C. residents had “Star Trek” phasers permanently set to stun. The Supreme Court would find the constitutional challenge to the District’s current gun bans so much easier to resolve. Think about how different the problem would look: People could protect themselves without killing anyone. The weapons couldn’t be used for suicide, and children wouldn’t get hurt. The city’s concerns about the dangers of lethal firearms would be satisfied, while citizens would still have effective tools for self-defense. Science fiction fantasy? Yes, for now. But someday we’ll have a perfect stun gun. And that technological improvement will significantly change the legal discussion of what “arms” the Second Amendment protects. What is true for this constitutional debate is also true for clashes ranging from the dispute over lethal injection this Supreme Court term to the perennial challenges to abortion rights. Advocates may frame these cases in legal terms, and they may arise, in part, over irreconcilable values. But if you dig into these legal disputes, you’ll find technological shortcomings as well. What the Court is often grappling with is the inability of current science to give people exactly what they want. Technology will improve, of course. As scientists learn to produce what is now only science fiction, this progress will alter the facts that frame some constitutional debates — a long-term perspective that the Court needs to keep in mind. NO PHASERS YET At first, it might seem odd to characterize disputes over the interpretation of the Second, Eighth, and 14th Amendments as technological problems. Several justices — and not just Antonin Scalia and Clarence Thomas — seem inclined to focus on the original intent of constitutional provisions, and whatever the original intentions in 1789 or 1866, the technology of the 21st century was probably not on the authors’ radar — er … spyglass — screens. But consider how much of the raging legal debate over just three constitutional issues is defined by the technological status quo. With the gun bans in District of Columbia v. Heller, the harms of most concern arise from the particularly lethal nature of today’s firearms. No sensible politician tries to claim that citizens lack a right per se to protect themselves using defensive tools. No one tries to ban crowbars, baseball bats, or steak knives. But modern guns are much more formidable weapons — they’re easily concealable, they don’t depend upon physical strength, and they work from a distance. They outclass colonial muskets at killing both their intended targets and unintended bystanders. One can understand why modern politicians might wish to restrict or ban today’s guns despite the Second Amendment. At heart, it’s the current technology. Similarly, the dispute in the Supreme Court case of Baze v. Rees asks whether the latest technology for executions is unacceptably cruel under the Eighth Amendment. Granted, opponents of the death penalty might wish to abolish it altogether, but since the Roberts Court is unlikely to oblige, they are arguing for a more humane method of execution. On the other side, those defending current execution procedures can’t be overjoyed when lethal injections go badly: Flaws in individual executions tend to cast doubt on the entire system of capital punishment. The goal for both sides is essentially a technological one: an execution method that is fast, reliable, and (relatively) painless. Even the contentious abortion debate emerges, in part, from a technological problem. Both sides should be reasonably pleased if improvements in methods of contraception could reduce the more than 1 million abortions performed each year in the United States. About half of U.S. pregnancies are unintended, according to the Guttmacher Institute, which researches sexual and reproductive health issues, and 40 percent of these unintended pregnancies result in abortion. Better contraceptive methods would be a blessing. Yes, on the pro-life side, some have objections to birth control itself, and those concerns, often based on religious beliefs, are unlikely to disappear. But contraception is very popular. According to the Guttmacher Institute, 98 percent of women ages 15 to 44 who have ever had sex have used at least one method of birth control. And even for those on the pro-life side firmly opposed to birth control, preventing a conception should seem a lesser evil than an abortion, which they regard as murder. And on the pro-choice side, few seem truly enthusiastic about abortions. The issue is the ability of women to choose when and whether to have a child without undue interference from the state, not guaranteeing the act of abortion per se. In other words, if improvements in contraception helped prevent more unwanted pregnancies and thus eliminated more abortions, the current legal debate would shrink, too. JUMPING TO WARP The good news about technological problems is that they will have technological solutions — and quite possibly within our lifetimes. Consider guns. The basic idea of a gunpowder explosion driving a projectile at high speeds into the enemy hasn’t changed much in centuries. But now, both private companies and government bodies, such as the Defense Department’s Joint Non-Lethal Weapons Program, are working to develop weapons that can stop attackers while sparing their lives. Capt. James T. Kirk’s phaser may or may not materialize. But one can easily imagine a pocket-sized stun weapon that instantly incapacitates an attacker but causes no lasting damage. Such technology would be very effective for self-defense, at much less risk of lethal mistake, and thus could prove very attractive to the significant percentage of U.S. households that now own firearms. Likewise, medical technology almost certainly will develop ways to kill death-row inmates faster with less risk of suffering. Over the past 2,000 years, humanity has moved from the agonies of Roman crucifixion to the relatively rapid guillotine of the French Revolution to our current lethal injection. It’s not hard to ascertain history’s trajectory here, and it’s likely that the debate over lethal injection will last only until a better method appears. And if women could choose to be temporarily inoculated against unwanted pregnancy as easily as we now vaccinate against mumps? In other words, if women had a form of birth control that required a single doctor visit and protected them for long periods of time, with no serious side effects? If men could control their own fertility just as easily? When medical research develops that kind of contraception, people will surely embrace it. The demand for and number of abortions will surely drop, easing the pressure to do something on both abortion opponents and those committed to reproductive choice. TO MODESTLY GO All these technological advances will rewrite familiar constitutional debates. For the Second Amendment, the results could be double-edged. If the Glock and SIG Sauer handguns of today were replaced by nonlethal stun guns, bans that covered these new weapons would be much harder to sustain under the Second Amendment. What would drive the push for gun control in the absence of bullet-ridden bodies? Legal rationales that may have seemed reasonable to deal with lethal firearms will seem embarrassingly unconvincing when applied to the nonlethal weapons of the future. On the other hand, when people can easily defend themselves with nonlethal technologies, the choice to own a lethal firearm for self-defense will become more of a deliberate choice to kill. That choice may not attract much constitutional sympathy from courts, particularly when nonlethal alternatives might be just as effective for self-defense. For executions, when improved technology eliminates death-row prisoners’ suffering, Eighth Amendment debates over the cruelty of the death penalty may fade away. Of course, at that point, the opponents of capital punishment may start arguing that execution is psychologically cruel even if physically painless. And if the need for an abortion ever becomes akin to the contraction of polio because of a refusal to be vaccinated, the perceived reasonableness of constitutional protection for abortion might weaken. Then again, in the future, the combination of better birth control and advanced genetic screening may focus the use of abortions on fetuses with terrible health problems — a use that some, at least, will find more worthy of constitutional protection. So how should the Supreme Court react to the inevitability of technological change, knowing full well that it cannot predict the future any better than the rest of us? The answer, I think, is that the Roberts Court’s professed inclination toward judicial modesty, though largely arising from philosophical beliefs about the institutional role of the Court, also helps in dealing with emerging technologies. Granted, the Court must rule for the actual litigants facing the circumstances of today. The justices cannot punt questions simply because their decisions may someday be superseded by technology. But narrow rulings, limited to specific factual situations, may be better suited to future uncertainty. Sweeping, rigid pronouncements can become embarrassingly anachronistic and yet difficult to revisit because of stare decisis. Narrow decisions are more easily distinguishable from new situations and thus free the Court to react more easily to technological change. They signal that the justices know they haven’t decided an issue for all time. The potential for technology to transform legal issues in the not-distant future is a natural subject for amicus briefs. When amici identify such a possibility, justices would be wise to draft an opinion that explicitly limits itself to today’s technology and that makes clear that the Court is ready to reconsider the issue if warranted by scientific developments. The crew of the starship Enterprise could boldly go into the future. The Supreme Court justices may wish to proceed more modestly.
Robert L. Rogers is the associate opinion editor of Legal Times . He can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.