What a "disparate impact" Equal Protection Clause test would mean

[Volokh, Eugene]

        1)  Prof. Binion's suspicion "that gun control . . . would easily
survive" seems to me quite telling.  I take it that this is because she
thinks gun control proposals to be "necessary," and would presumably think
the same about, say, Saturday Night Special bans, which disproportionately
affect the poor and therefore blacks and Hispanics (since SNSs are generally
cheaper than other guns).  And, who knows, maybe that's right.  But I'm
quite certain that many judges think these laws are quite unnecessary, and
in fact undesirable.  If the Equal Protection Clause requires them to turn
their views of necessity into constitutional commands, then they will be
quite free -- 2nd Am and state constitutional rights to keep and bear arms
aside -- and in fact mandated to strike those laws down.

        That's the nature, it seems to me, of "necessity" tests.  As applied
by us, they look good; who's in favor, after all, of "unnecessary"
government action?  But the trouble, as with Lochner, is that the rules will
be applied by judges to strike down those laws, benefit programs, and the
like that *they* think are "unnecessary."

        2)  I'm not sure I can see how the logic of her proposal can be
cabined to "employment, education, the franchise, et al."  Surely business
regulations, which can certainly affect small businesspeople's ability to
make a living and educate their families are at least as central to
"inclusion" of groups as are government employment and education decisions
(or as zoning decisions).  Likewise for professional licensing schemes.
Likewise for tax laws.  If one set of government policies is
unconstitutional whenever it has a disparate impact on one or another
racial, ethnic, or gender group, I don't see a principled way not to apply
this to the other set.

Gayle Binion writes:

> But I am not as ambitious as Professor Volokh suggests... I do not mean to
> handle all public policy with the negligence standard vis-a-vis group
> impact, although I suppose one could adapt it to such uses. I suspect that
> gun control --if a legitimate activity under the 2nd amendment-- would
> easily survive despite the volitional choices of men that differ from
> those of women with respect to gun ownership.  I am referring to assessing
> public policy affecting access to social institutions such as employment,
> education, the franchise, et al, where governmental decisions may depress
> inclusion-- or they promote it.  If policy choices impact inclusion I
> would opt for a "responsibility" model vis-a-vis inclusion rather than an
> "ignorance" model, where decision makers ignore the consequences for
> inclusion of their choices or feign the ignorance.  I don't think this
> focus necessarily involves discrimination against anyone.  Recall that in
> my first post on the subject I referred to attendance zoning in a school
> district in which I had lived.  A long history of zoning east-west
> effected race/class segregation.  Zoning north-south could have effected
> significant integration.  I wonder whether the new "color blind"
> sensibilities would 1)treat the east-west as an unexamined race-neutral
> "normal" and 2)treat a redrawing of the attendance zones to north-south as
> an illegal form of race-consciousness.
>
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