Making Our Democracy Work (27 page)

The majority and the dissent disagreed not only about the relevant values but also about the way in which judges should use values and purposes to help resolve a constitutional question. The majority, for example, conceded that at least one of the reasons the founders included in the Constitution an amendment protecting a “right … to keep and bear Arms” was to help ensure well-regulated state militias. But even so, they looked primarily to history, not to that purpose, to define the scope of that right, that is, to determine to what, and just how, that right now applies.
¹¹

The dissenters, however, even had they believed that the amendment sought in part to protect an individual’s right of self-defense, would not have looked to history alone to determine the scope of that right. They would have asked: What are the basic values—values related to personal security—that the amendment seeks to protect? And how do today’s laws promote or interfere with those basic values? Thus the dissenters, after identifying the relevant values, would have gone on to consider relevant differences between an eighteenth-century, primarily rural America, where frontier life demanded guns, and the present, primarily urban America, where gun possession presents a greater risk of taking innocent lives. While seeking to maintain the basic values underlying a constitutional provision, they would place greater weight than did the majority on changing circumstances.
¹²

Despite their differences, both majority and dissent agreed that they must ask a final question: In light of the values and purposes that underlie the amendment, was the District’s handgun prohibition constitutional? For the dissent, the question was not difficult. The amendment’s basic purpose concerned the maintenance of a well-regulated state militia. The District’s civilian handgun ban did not significantly interfere with that objective. Hence the ban was constitutional.
¹³

Neither did the majority find the question difficult. In its view, the amendment’s central “value” concerned “the inherent right of self-defense.” Handgun possession is important, perhaps necessary, to secure that value. Handguns are easy to “store in a location that is readily accessible in an emergency.” They are easy to “use for those without the upper-body strength to lift and aim a long gun.” They are capable of being “pointed at a burglar with one hand while the other hand dials the police.” They are not “easily … redirected or wrestled away by an attacker.” They are “the quintessential self-defense weapon,” particularly in the home. Yet the D.C. law bans that “entire class of ‘arms.’ ” Few gun laws in the nation’s history have been so restrictive. Hence the law “fail[s] constitutional muster.”
¹⁴

Although the result in this case turned primarily upon the identification and application of values, the case also illustrates how the Court might use proportionality—a tool that the majority did not use but that the dissenters considered.

Put in terms of constitutionality, the proportionality question is the following: Does the handgun restriction
disproportionately
interfere with the values that underlie the Second Amendment? This question encompasses several subsidiary questions: To what extent does the restriction interfere with the protected interest? To what extent does it further a compelling interest? Are there superior, less restrictive ways to accomplish the statute’s important competing objective? The answers to the subsidiary questions help answer the ultimate question: Does the statute disproportionately restrict the value or interest that the Constitution protects? The Court has frequently asked these kinds of balancing questions, sometimes using different language, where similar constitutional conflicts—say between free speech and privacy—are present.
¹⁵

The District’s law, while restricting possession of handguns, does so in order to advance a
compelling
interest, namely, an interest in life itself. The Court has held that this interest can justify interference even with very important competing constitutional interests. Consider, for example, laws that forbid speech where speech would reveal important military secrets. Consider also laws that would forbid religious practices that threaten individuals with physical harm.
¹⁶

It is less clear whether the District’s handgun law
significantly furthers
a lifesaving interest. On the one hand, in 1975, when the District enacted its ban, there were in the United States about 25,000 gun-related deaths annually and about 200,000 injuries. In the District, 155 of 285 murders, 60 percent of all robberies, and 26 percent of all assaults involved handguns. But twenty years
after
the District enacted its law, the nation’s gun-related death figure had risen to 36,000. More than 80 percent of all firearm homicides were committed with handguns. And the District’s violent-crime rate had increased, not diminished. Moreover, some social scientists had found that strict gun laws are generally associated with more, not less, violent crime. Others found a positive empirical relationship between gun ownership and legitimate self-defense. Still others found that there are so many illegal guns in the United States the D.C. law could not have any significant positive effect.
¹⁷

On the other hand, without a handgun ban, D.C. crime rates and crime-related deaths might have been still worse. Handgun laws cannot promise to take guns from criminals, but they might help. And D.C.’s laws might lead other communities to adopt gun restrictions of some kind. One cannot be certain whether D.C.’s gun law worked. To answer the overall question—to what extent did the D.C. law achieve its objective?—requires facts and fact-related judgments. Legislatures are better equipped than courts to try to find the answer. Thus the Court should accept the legislature’s judgment about gun possession and saving lives—as long as that judgment is reasonable. (I thought it was.)
¹⁸

What about the other side of the coin? To what extent does the District’s handgun ban
burden
the gun-related interest that the amendment seeks to protect? To answer this question, we must return to the values that underlie the amendment. Because the justices disagree about that matter, we can examine all plausible values in turn. If the value is that of preserving a “well regulated Militia” or protecting sportsmen or hunters, the handgun ban imposes little or no burden. Those who seek training in the use of guns, target practice, or hunting can join gun clubs in nearby Virginia or Maryland and, for the price of a subway ride, join their fellows for training, recreation, and sport. But
if the value is that of using handguns for self-defense, we must recognize that the statute imposes a burden. The handgun ban interferes significantly with the homeowner’s possession and use of a handgun kept in the home for the purpose of self-defense.
¹⁹

The Court then must try to balance the statute’s efficacy, in terms of community safety, with the obstacle it imposes to self-defense. We might try to avoid the need to balance by looking for a superior, less restrictive way to achieve the District’s lifesaving objective. But probably there is none. The very characteristics that make a handgun a particularly good choice for self-defense include the fact that it is small, light, and easy to hold and control and leaves one hand free for maneuvering. Those very same characteristics make handguns susceptible to misuse, by children for example, easy to steal and to hide, and a good choice for a criminal intent on committing, say, a robbery.
²⁰

So far, proportionality has helped frame the question. The handgun ban burdens (what the majority found was) an important Second Amendment objective. At the same time, it does so in order to further (and the legislature could reasonably find it tends to further) a competing and compelling interest, namely, saving innocent lives. There is no obvious, less burdensome, similarly effective way to further that objective. We therefore cannot escape the need to decide the balancing question, namely, whether the District’s handgun law, in its efforts to save innocent lives (a compelling interest),
disproportionately
burdens the interest the amendment seeks to protect, namely, “self-defense.”
²¹

In my view the burden is proportionate, not disproportionate, and the statute is constitutional. The District’s law was properly tailored to the urban life-threatening problems that it sought to address. It involved only one class of weapons, leaving District residents free to possess shotguns and rifles along with separately kept ammunition. The amendment’s first clause, the “Militia” clause, indicates that even if self-defense is one protected interest, it was not the exclusive or primary interest that the framers had in mind. Perhaps most important, changes in the nature of society, the development of the urban police force, the nature of modern urban crime, the movement of population away from the frontier, with frontier life’s particular dangers and risks, all have made gun possession less important in terms of the amendment’s
objectives—even if those objectives include the value of personal safety.
²²

Whether one agrees or disagrees with the proportionality analysis just presented, the underlying approach focuses the Court’s attention on the practical underlying constitutional considerations, namely, harm (to protected interests) compared with need. The Second Amendment example shows that proportionality is complex and difficult to apply in practice. But what is the alternative? Today’s Court should not base an answer to a question about an issue such as gun control on the facts and circumstances of eighteenth-century society. Nor should a judge base an answer to that question on the judge’s own intuitive balancing of harm versus need—without saying how that balancing works. Why should the Court simply announce that handguns are important and imply that the answer is consequently obvious? Why should the public find acceptable such complete reliance on either an eighteenth-century alternative or an unexplained judicial intuition?

Those who disfavor the use of a proportionality approach, or similar approaches, criticize them as “judge empowering.” But a judge who uses such an approach must examine and explain all the factors that go into a decision. The need for that examination and explanation serves as a constraint. It means that the decision must be transparent and subject to criticism. Because the approach just illustrated can require the judge to accept reasonable legislative determinations of empirical matters, it is “legislator empowering,” not “judge empowering.” In the democratic society that the Constitution creates, legislative empowerment is a virtue.

I
N SUM, THE
Second Amendment example shows how the use of values and proportionality can help produce constitutional interpretation that allows the Constitution to adapt its permanent values to fit society’s changing needs. The use of values and proportionality introduces its own complexities. But those complexities often arise out of the underlying problem itself—a problem that requires a court to determine how much protection a right warrants when it conflicts with another right or critically important interest. Other, simpler
approaches come with costs attached, such as the difficulty of explaining to the public why it should accept a decision that embodies eighteenth-century factual assumptions or pure judicial intuition. To use values and proportionality is to promote transparent opinions, to rely heavily on rational explanation, and to protect the individual rights that underlie constitutional provisions.

T
HE
C
OURT’S RELATIONSHIP
with the president is complicated by the fact that it is often forged in times of war or national emergency. In such times the Constitution remains applicable. The nation has long abandoned Cicero’s view that “in time of war the law is silent.” Furthermore, the Court retains the power of judicial review. In principle, it can invalidate presidential actions that violate the Constitution. But in practice, to what extent can—or should—the Court hold the president accountable to the Constitution in the face of war or national emergency? How can the Court maintain a workable relationship with the president and enable him to discharge his constitutional duties without abdicating its responsibility to safeguard constitutional liberties and enforce constitutional limits? As elsewhere, the Court must find the right constitutional approach, thereby helping to ensure public acceptance of its decisions, if not always as correct, then always as legitimate.

The Constitution delegates to the president broad powers to conduct foreign affairs, wage a war, and safeguard national security. But sometimes a president can go too far. During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus, thereby allowing the army to arrest and detain American citizens without judicial
review. Subsequently, Chief Justice Taney issued a writ of habeas corpus ordering the army to release a Confederate sympathizer, John Merryman, a citizen of Maryland, whom Union soldiers had arrested. Taney thought that the suspension of the writ violated the Constitution because Article I gives
Congress
, not the president, the authority to suspend the writ of habeas corpus.
¹

President Lincoln then ordered his generals to ignore the writ. “Are all the laws,
but one
, to go unexecuted,” Lincoln asked, “and the government itself go to pieces, lest that one be violated?” Congress righted matters by enacting legislation that suspended the writ. Yet the fact remains that President Lincoln ignored a judicial effort to set aside a wartime action he thought necessary.
²