Burdens, Waiting Periods, and Taking Rights Seriously
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Nov 17 09:31:23 PST 2005
The discussion of waiting periods gives me a chance to ask for free help on a subject that I've been thinking about for years. (I'll write the article one day, I swear! Never mind that I first tried to get started five years ago . . . .)
Most state constitutions (44 of the 50) secure a right to bear arms; and the great majority of those make clear that the right is an individual right aimed in large part at protecting people's ability to defend themselves. See http://www.law.ucla.edu/volokh/beararms/statecon.htm; see, e.g., "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose," Wisc. Const., art. I, § 25 (enacted 1998). The question is how state courts should interpret this right; many states have adopted what is more or less as a burden test, though with a very high threshold for what's impermissible. Prohibitions on the right to bear arms, they say, are improper, but "regulations" are fine; and the focus seems to be on how burdensome the regulation is. I tentatively think the courts have set the threshold too high, but that a substantial burden test is likely a sensible approach.
Here's the more specific link to the abortion debate: One common gun control measure is waiting periods for gun purchases. Now that we have a fairly well-functioning instant background check system, the waiting period isn't generally aimed at checking whether the buyer is in a prohibited group (e.g., a felon). Rather, the purpose of the waiting period -- which is sometimes as long as 3 weeks -- is to be a "cooling off" period. Some people buy guns, the theory goes, because in a fit of anger or despair they want to kill someone, or to kill themselves. But if we let them cool down, they may become more rational and either not want the gun at all, or buy the gun but not do anything rash with it.
Should this be treated as an impermissibly high burden, or a permissibly modest one? I should stress that the question is far from identical to the abortion waiting period question. Different rights have different practical aspects; gun stores, for instance, are less likely to be very far away (partly because rural areas, where driving distances may be more of an obstacle, are also more likely to be gun-friendly and more likely to have gun dealers). Yet there is a similarity: If one believes the Constitution secures abortion rights, then both situations involve constitutionally protected rights that the government is burdening, and both situations do involve *some* potentially significant burdens on the exercise of the right. In the case of guns, here are a few kinds of burden:
1. Decrease in Security During the Waiting Period: Three weeks isn't a long time, but one can certainly be victimized -- just by random chance -- during those three weeks. Most people who have to wait won't find any interference with their self-defense; but the unlucky ones whose number comes up during those three weeks (for a 30-year-old, 0.1% of the rest of his life) are going to find themselves unable to "keep and bear arms for security" against the crimes (rapes, robberies, murders) that happen during those 3 weeks. Is it enough that the great majority of people will have nothing to defend themselves against during those 3 weeks (just like the great majority of women won't find it that hard to go to the abortion clinic twice)? Or does the burden on the unlucky few suffice to make the law unconstitutional?
2. Decrease in Security for Those Who Are Especially Threatened Right Now: Many people, of course, buy guns not because of general concern about future self-defense (or hunting or target-shooting) but because they feel an acute threat right now. A woman leaves an abusive husband or boyfriend; he threatens her; she wants to buy a gun to defend herself. The risk to her during those 3 weeks may be especially high. Does that affect the analysis? Does the law have to have some sort of judicial bypass procedure through which the buyer can get the waiting period requirement waived if he or she shows a sufficient danger (even if the showing is just through his or her own testimony that he or she has been threatened)?
3. Risk of Loss of Privacy: Owning a gun is much less likely to lead to condemnation or retaliation, on balance, than getting an abortion; relatively few people see getting an abortion as completely morally neutral, but many people see getting a gun as morally neutral or even praiseworthy; many people see getting an abortion as highly immoral, and fewer people view getting a gun the same way; it's easier to imagine a family severing ties with a family member who gets an abortion than with a family member who gets a gun; and so on. I do think there is some social condemnation of gun ownership in many circles; I just think it's much less on balance than the social condemnation of abortion.
Nonetheless, there is some social condemnation, and there is also a risk of violent retaliation. If an abusive husband learns that his wife, who has just left him or who may be about to leave him, has tried to buy a gun, he may well retaliate against her. (Perhaps he'll be more reluctant if he learns that she has succeeded in buying a gun, but the waiting period leaves her with some time during which she may be revealed as a prospective gun buyer, but still unarmed.) The waiting period is less likely to expose the buyer, precisely because travel times to gun stores are likely not to be very high, and the buyer could likely conduct the transaction without others learning about it. But there is some extra risk of exposure caused by the waiting period, and some extra risk of injury caused by exposure (since there'll be a time when the person is known to want a gun but is unarmed). How should we calculate that?
4. Indignity/Offensiveness: Finally, I take it that many critics of abortion waiting periods are upset by the indignity and perceived offensiveness of treating each woman who seeks an abortion as someone who might be overemotional or unthinking, and thus in need of time to reconsider. I suspect that some women (though possibly only a very few) might get an abortion in a fit of despair, anger, or some other emotion, and perhaps they might ultimately be happy that the waiting period had stopped them. But one can still criticize a law that burdens all women because of the emotionality of a few. The same argument can of course be made about waiting periods, which I think some people find to be offensive to their dignity for precisely this reason.
Can people help me think through these questions? Again, I stress the analogy to abortion rights is far from perfect, yet I wonder whether it might still be interesting, and in any event whether we can learn something about the subject of my article -- how courts should take the constitutionally secured right to keep and bear arms in self-defense seriously -- from the abortion debates.
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> Johnsen, Dawn Elizabeth
> Sent: Thursday, November 17, 2005 6:21 AM
> To: Mark Graber; conlawprof at lists.ucla.edu
> Subject: RE: Overruling Roe
>
>
> Nice summary. I esp agree with point 1--that is the critical
> point, and we are losing big on that already in many parts of
> country (and of course we should worry about the less
> fortunate women in those areas). (I also don't disagree that
> waiting periods are not effective in actually stopping
> abortions for many women when providers are relatively close
> by, but of course for many women even today clincs are not
> close by,and regardless, waiting periods are harmful and
> offensive.) I would just add to points 4 & 5--typically
> these laws look like they have a purpose other than to shut
> down clinics so judicial scrutiny must be very close and
> meaningful (really needs to be "strict") and add to "no
> hospitalization" req that legislatures not be permitted to
> impose on clinics reqs designed for hospitals.
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Graber
> Sent: Thu 11/17/2005 9:02 AM
> To: conlawprof at lists.ucla.edu
> Cc:
> Subject: RE: Overruling Roe
>
>
>
> Agreed on almost all accounts. Perhaps the point of
> agreement among all
> of us is the following.
>
> 1. The crucial variable in determining whether less
> fortunate Americans
> are able to choose whether to have an abortion is
> whether an abortion
> clinic is within a relatively short distance.
>
> 2. The standard regulations of abortion, funding,
> waiting periods,
> "informed" consent, partial birth, etc., have little
> impact on access to
> abortion in areas where abortion clinics are nearby.
>
> 3. Harrassment has a substantial impact on abortion
> clinics, though so
> far the Supreme Court has not demanded that states
> prevent harrassment
> (and has been fairly good about sustaining state
> efforts to that end).
>
> 4. All bets are off if the court sustains legislation
> that clearly has
> no other purpose than to close down abortion clinics.
>
> 5. Perhaps the crucial point is that as long as Akron
> I (462 U.S. 416)
> remains good law (requirement that all abortions be performed in
> hospital declared a substantial obstacle), the Roe
> right is likely to
> meaningful for most, though hardly all, Americans.
>
> Mark A. Graber
>
> >>> "Johnsen, Dawn Elizabeth" <djohnsen at indiana.edu>
> 11/17/05 8:52 AM
> >>>
> Mark is right that the main effect of Roe was to make
> abortions safe and
> far less expensive. But funding restrictions are not
> the problem people
> have in mind when they warn of the dangers of the Court
> upholding
> Roe/Casey in name only, while applying the undue burden
> standard to
> uphold virtually all restrictions short of criminal
> bans. Frontline
> broadcase an excellent episode last week: the last
> abortion clinic in
> Mississippi. It interviewed national and Mississippi
> anti-abortion
> leaders who described their "incremental" approach and
> goal of making
> Mississippi the first "abortion-free" state in the
> nation. They have
> enacted a series of restrictions (and engaged in protests and
> harassment) that has led to the closing of every clinic in the
> state--save one. That last clinic is the target of new
> legislation
> designed to close it down when it goes into effect in
> Feb. These TRAP
> laws--targeted regulation of abortion providers--often
> sound reasonable;
> I think this latest one requires that physicians who
> perform abortions
> in the state personally have admitting privileges at a
> nearby hospital,
> which (acc to the Frontline episode as I remember it)
> is entirely
> unnecessary and impossible to satisfy. (There are
> numerous other egs of
> such regs targeted only at abortion clinics and
> designed to shut them
> down, such as hallways in clinics have to be as wide as hospital
> hallways so two medical stretchers can pass through
> simultaneously.
> Mississippi is far from unique: shortages of abortion
> providers are
> serious, growing problems across the country--not just
> due to such
> legislation, but also private harassment and lack of
> training in med
> schools, etc.) Currently many women in Mississippi
> have to travel
> hundreds of miles to the nearest provider and of course
> the state has a
> waiting period that requires two such trips. So it is
> not the cost of
> the procedure that is the main problem, but (for some
> women) having to
> travel hundresds of miles-- twice--when they have no
> car or means of
> transportation, young kids at home already, min wage
> jobs w/ inflexible
> hours, unsupportive/abusive husbands or partners... you
> get the idea.
> Frontline interviewed women who said abortion just is
> not an option for
> them because of these kinds of obstacles and the
> unavailabilty of
> providers. And if this latest abortion restriction
> does its job,
> abortion will be navailable in Mississippi just as if
> Roe had been
> overruled. And that is before the Court further
> "overrules" Roe. With
> a far less protective undue burden standard, many more
> states could
> follow Mississippi.
>
> Dawn Johnsen
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu on
> behalf of Mark Graber
>
> Sent: Thu 11/17/2005 8:24 AM
> To: conlawprof at lists.ucla.edu
> Cc:
> Subject: Re: Overruling Roe
>
>
>
> Several thoughts.
>
> 1. As the Democratic party has become a much
> better vehicle for
> abortion rights and similar, it has become a
> much worse vehicle
> for
> labor and welfare rights. I believe there to
> be a connection
> and am
> presently working on this. So, for those of us
> who think that
> poor
> people may have rights to matters other than a
> state-funded
> abortion,
> the overrule of ROE may not improve matters.
>
> 2. The main impact of ROE was to dramatically
> reduce the price
> of
> abortions and make abortions safe. These will
> remain as long as
> ROE
> remains legal. Is there some reason to believe
> that those who
> repeatedly, constantly assert that a "hollow
> Roe" is meaningless
> are
> more concerned with the upperclass right not to
> have abortion
> stigmatized that the right of poor people to
> safe and relatively
> cheap
> abortions (and for those who disagree, please,
> I beg you, read
> the data
> from the militantly pro-choice Guttmacher
> Institution on just
> how little
> practical impact abortion funding bans have on
> the availability
> of
> abortion services to poor persons).
>
> 3. As I have repeatedly argued, the present
> United States is
> presently
> divided into two factions. The party of the
> rich that fights to
> the
> death on welfare and caves on abortion, and the
> party of the
> other rich
> that fights to the death on abortion and caves
> on welfare.
>
> Mark A. Graber
>
> >>> <RJLipkin at aol.com> 11/17/05 7:25 AM >>>
> If the Roberts' Court pretends to uphold Roe,
> but regulates it
> virtually
> "out of existence," what will remain of the
> right to abortion?
> To put
> it
> differently, isn't there a rather narrow range
> of limitations
> available? And if
> that range is exhausted, how will it be
> possible even to pretend
> to
> recognize
> Roe's precedential value? And if the Roberts'
> Court retains
> Roe, but
> never
> meets a regulation it doesn't support, how will
> that affect
> politics?
>
>
> Bobby
>
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
>
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