Since the Supreme Court's recent foray into Second Amendment jurisprudence in District of Columbia v Heller, there has been
much brouhaha over the implications of that decision, both in academia and the popular media more broadly. In their latest paper, presented at last week's Crime and Punishment Workshop, Professors Philip Cook, Jens Ludwig, and Adam Samaha undertake the task of sorting through various legal arguments that have been made after Heller, and identify what they deem to be
sideshows from the social welfare perspective. Their conclusions will likely surprise most readers.
First, the sideshows. The question that seems to have caught everyone's (or at least every lawyer's) attention since Heller is whether the Second Amendment is (or will be)
incorporated (that is, applied to states and municipalities via the Fourteenth Amendment). If not, then Heller will be largely irrelevant, since most of the regulatory action occurs at the state and local level. But the real question is not whether incorporation will occur (it most likely will) but what will be incorporated, argue the professors. In other words, the scope of Second Amendment right as understood by courts—not the universality of its applicability to state and local governments—is likely to matter most when it comes to social welfare.
Also, what about fears of handgun bans being invalidated across the country? It is true that if Heller is applied to states and municipalities, comprehensive bans will mostly likely be declared unconstitutional. But, will that really matter? Maybe not, say the professors, for two reasons.
First, handgun bans have never been particularly popular, and only exist in a few (admittedly large) municipalities; the impact of their invalidation, then, might be more muted than has been assumed. Second, and more important, the efficacy of handgun bans is not certain. Using percentage of suicides committed with guns as a proxy for gun ownership (see footnote 192 and accompanying text of the paper if that strikes you as odd), the professors analyzed whether gun ownership dropped after the DC handgun went into place in 1976. The data was inconclusive, and therefore, we should not necessarily expect that the invalidation of such a ban will now suddenly lead to a large increase in gun ownership. From a public welfare standpoint, then, invalidation of the bans might not be as significant as has been feared.
Finally, the concern over whether Heller commenced a new era of public heat-packing seems rather misplaced, assert the professors. With fewer than 2 percent of adults obtaining permits to carry concealed weapons in 12 of 16 of the most permissive states, the invalidation of gun-carrying regulations is unlikely to significantly affect public safety.
There are real threats to social welfare resulting from Heller, however. If, for instance, courts were to develop a presumption of unconstitutionality for any regulation that singles out firearms (and thus, require more judicial scrutiny to rebut the presumption), many gun regulations would probably not survive. Such regulations often make guns
special (in the constitutional sense), and thus, either regulators would be required to apply such regulations to other products, or the targeted regulations would have to withstand increased judicial scrutiny. Neither seems likely, and the result—no gun regulation whatsoever—is probably not be desirable, at least from the standpoint of public welfare.
Equally problematic is the fact that Heller may reduce innovation in gun regulation. Since new forms of regulation (for instance, microstamping, insurance requirements, social cost taxation, etc.) after Heller are now likely to face constitutional litigation from gun rights proponent (thereby increasing the cost of implementation for the government), the effect might be to stifle such innovation altogether. Given the fact that it is by no means clear that the best policy is to minimize gun regulation, the professors argue, Heller's potential limitation of innovation ought to be of concern to all those interested in reducing crime and violence in the US.
Though Heller has been touted as a historic decision (and, perhaps, rightly so), it nevertheless did very little to define the future of gun regulation. The public, meanwhile, has fixated on aspects that may turn out to be of little consequence. In pointing out the real threats to social welfare after Heller, this paper takes the first step in what will undoubtedly prove to be a long road; the ultimate consequences of this case, both for gun regulation and for social welfare, will likely take years to fully understand.