Empirical controversy as a reason for rejecting
individualrightsclaims
Rosenthal, Lawrence
rosentha at chapman.edu
Thu Apr 19 21:14:17 PDT 2007
Surely we can agree that judicial deference to the judgments of those thought to have relevant expertise is a commonplace in constitutional adjudication. Fourth Amendment jurisprudence may seem to be an exception, although it reflects deference to the judgments of the officer on the street (I argued in the article referenced in my prior post that the Court also defers when the legislature or executive can make a plausible empirical case for "special needs," although the Court does so inconsistently). As for the First Amendment, in areas where heightened scrutiny is required, deference tends to disappear (in First Amendment jurisprudence and elsewhere), but absent a justification for strict scrutiny, some measure of deference is shown even in First Amendment adjudication. E.g., Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195 (1997) (affording "substantial deference to the predictive judgments of Congress"). But when the applicable constitutional standard is mere reasonableness, as in much of due process and equal protection jurisprudence, deference is the rule rather than the exception.
As for the Second Amendment in particular, one of the things that the individual-rights camp seems not yet to have worked out is what level of scrutiny should be afforded when assessing whether a regulation is "reasonable." Surely the text seems to leave more room for regulation than most other constitutional provisions -- the Second Amendment is the only constitutional provision that expressly anticipates a "well regulated" right. Thus, there is an ample textual argument for deference, and, as I suggested in my earlier post, a solid pragmatic argument for deference as well.
Finally, as to the frame for debate, to the extent that a regulation is thought to be "reasonable" and hence permissible under the Second Amendment's opening clause, there is no occasion to debate whether Second Amendment rights prevent reasonable regulation of firearms -- the Second Amendment grants no one a right to be free from reasonable regulation. I had thought that Professor Volokh conceded that much.
Larry Rosenthal
Chapman University School of Law
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 4/19/2007 3:11 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Empirical controversy as a reason for rejecting individualrightsclaims
I'd love to hear what others have to say about this generally.
Fourth Amendment law has not categorically deferred to legislatures,
though, as to what constitutes a reasonable search. First Amendment law
has not categorically deferred to legislatures as to what constitutes a
sufficient empirical basis for justify a speech restriction. My sense
is that the essence of constitutional rights in the American system is
precisely that the courts police legislative judgments about what is and
what is not reasonable. Some degree of deference in close cases may be
proper; categorical deference is not.
As to the framing of the debate, I had thought I was accurately
characterizing Prof. Sheridan's argument that started this whole thread,
which is that one should reject an individual rights view of the Second
Amendment in part because the Second Amendment was blocking regulations
that would save lots of lives.
Eugene
> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Wednesday, April 18, 2007 6:42 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Empirical controversy as a reason for rejecting
> individual rightsclaims
>
> I don't think it's right to frame the debate on the question
> whether second amendment "rights" are harmful. In a previous
> post, Professor Volokh seemed to concede that right to bear
> arms is subject to "reasonable" regulation. And, when an
> inquiry into a claim of right turns on what is a "reasonable"
> search or what amounts to "reasonable" regulation of the
> right to bear arms, that inquiry will often turn on empirical
> questions poorly suited to judicial resolution. And in such
> circumstances, isn't there the classic Holmesian case for
> deference to the legislature?
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Wed 4/18/2007 6:25 PM
> To: conlawprof at lists.ucla.edu
> Subject: Empirical controversy as a reason for rejecting
> individual rightsclaims
>
>
>
> Well, recall that the discussion emerged with a
> proposal that individual rights to bear arms be rejected
> because they're so harmful.
> The empirical controversy is about whether the rights are
> indeed so harmful (because they foreclose some proposals that
> would be wonderful but unconstitutional) to merit rejection
> of the right.
>
> Yet there are similar empirical questions underlying
> whether rejecting the Fourth Amendment would help protect
> public safety, whether rejecting the privilege against
> self-incrimination would help protect public safety, whether
> rejecting or at least limiting constitutional free speech
> protection would help protect public safety, and so on.
> Most constitutional rights rest on controversial empirical
> assumptions, no?
>
> Eugene
>
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Wednesday, April 18, 2007 6:08 PM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: RE: THE IDEALLY RATIONAL KILLER
> >
> > Having read this thread with great interest, I cannot help but note
> > that this debate seems to turn on a variety of empirical questions
> > that seem best suited for legislative resolution. All the
> more reason
> > to construe the Second Amendment narrowly.
> >
> > On the policy issue, on benefit of gun control that often goes
> > overlooked is the prophylactic power that it gives the police.
> > Concealed carry laws, for example, gave New York City officers
> > tremendous ability to perform Terry pat-downs in crime hot spots.
> > There is substantial evidence that this power to intervene on the
> > streetscape before someone is shot played a major role in
> the enormous
> > decline in violent crime in New York City (for my take on the data,
> > see http://ssrn.com/abstract=804684).
> >
> > To be sure, others interpret the New York City data
> differently than
> > I. But in the face of empirical debate, I return to the point that
> > opens this post.
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Wed 4/18/2007 2:21 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: RE: THE IDEALLY RATIONAL KILLER
> >
> >
> >
> > Well, if someone can point us to an empirical study
> of whether
> > mass murderers are likely to be deterred by a handgun ban because
> > rifles and shotguns "might be too difficult to conceal or operate,"
> > I'd be glad to look at it.
> > My guess is that there is no such study, so casual
> empiricism is the
> > best we can do; I feel very confident about my casual empirical
> > judgment, but I'd love to hear what others say.
> >
> > Returning to the constitutional question: The original
> > constitutional argument on the table was that mass murders such as
> > this one offer a reason to reject an individual rights view of the
> > Second Amendment, because the Second Amendment is frustrating gun
> > control laws that would have some material effect on the
> incidence of
> > such mass murders. That's a consequentialist argument that
> rests on
> > an empirical proposition; I have tried to explain why this
> empirical
> > proposition is incorrect, in particular (in this
> > subthread) when the suggest gun control law is a handgun ban.
> >
> > My guess is that courts considering this sort of
> > consequentialist argument -- if they do consider it --
> would have to
> > engage in some empirical inquiry, likely of the casual
> variety (much
> > as courts do with regard to consequentialist arguments in
> some other
> > constitutional contexts where hard data is absent). I
> certainly hope
> > that they wouldn't reject an individual rights view of the Second
> > Amendment on consequentialist grounds simply because it's
> > theoretically conceivable -- whether or not wildly improbable
> > -- that gun control laws that would be invalidated by the Second
> > Amendment would have some material effect on the incidence of such
> > mass murders. If they reject an individual rights view on
> some other
> > grounds, say original meaning grounds, then of course they wouldn't
> > need to consider the facts, but if they reject it on these
> > consequentialist grounds that are based on factual assertions about
> > what a handgun ban would do, then they ought to think a bit about
> > whether the factual assertions about a handgun ban's likely
> effect on
> > mass murders are sound. My claim has been that the assertions are
> > quite unsound.
> >
> > Eugene
> >
> > ________________________________
> >
> > From: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
> > Sent: Wednesday, April 18, 2007 2:15 PM
> > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > Subject: Re: THE IDEALLY RATIONAL KILLER
> >
> >
> > Is Eugene suggesting that of the
> entire class
> > of possible killers there are none that would be deterred
> because for
> > them rifles and shotguns are large and might be too difficult to
> > conceal or operate? The locution "ideally rational killer" really
> > stands for the problem of confusing what one person thinks
> about the
> > dissimilarities of these methods with what empirical evidence
> > concludes.
> >
> > Not "rocket science" to be sure, but an empirical
> argument is
> > required to cavilerly insist that everyone would simply think the
> > following "(this is longer than I'd like, what tools are there that
> > would reduce a long thing to a short thing?" (Answer: Saws.)"?
> > Surely, actual inquiry into this matter is superior to
> resting it on
> > what Eugene can or cannot "imagine" or what he does or does
> not "see
> > how this is so." Moreover, how can one deny that some
> people might be
> > deterred by needing to use rifles? If one can't, then the
> question is
> > this: Are there a significant number of such people who would be
> > deterred by rifles to warrant treating these two methods of killing
> > differently for the purposes of the law.
> >
> > What one person thinks about the difficulty of using one
> > rather than the other method is entirely irrelevant to the
> question of
> > what empirical investigation would conclude.
> > If it were relevant, then my experience in using revolvers
> and rifles
> > (where range or distance was not relevant) would count equally with
> > what Eugene thinks about this matter. In fact, of course, neither
> > what Eugene thinks or what I favor is relevant to the empirical
> > question of whether across a population there's a significant
> > difference between these methods to be legally significant.
> >
> > Bobby
> >
> > Robert Justin Lipkin
> > Professor of Law
> > Widener University School of Law
> > Delaware
> >
> > Ratio Juris, Contributor:
> > http://ratiojuris.blogspot.com/ <http://ratiojuris.blogspot.com/>
> > Essentially Contested America, Editor:
> > http://www.essentiallycontestedamerica.org/
> >
> >
> >
> >
> > ________________________________
> >
> > See what's free at AOL.com
> > <http://www.aol.com?ncid=AOLAOF00020000000503
> > <http://www.aol.com/?ncid=AOLAOF00020000000503> > .
> >
> > _______________________________________________
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