The Second Amendment and the Public’s Health

Posted on Categories Criminal Law & Process

Last November, Michael O’Hear offered an interesting post on whether a Seventh Circuit decision that developed a new test for Second Amendment claims would breath life into the U.S. Supreme Court’s decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), which for the first time interpreted the Second Amendment as conferring an individual right to possess and use firearms. Two years after Heller was handed down, I have been wondering about its consequences, too, in the context of public health policy.

Historically, gun-related violence and accidents were not viewed as a public health matter. Rather, gun violence was considered a matter for the criminal justice system; gun-related suicides were seen as a concern for the mental health system; and gun accidents were viewed as best handled by educational safety courses. Perceptions changed, however, with the advent of the field of injury prevention in the 1970s. When all gun violence and accidents were considered together, guns were found to be the second-leading cause of injury deaths in the U.S. 

Guns came to be seen as agents of morbidity and mortality and a rightful target of injury prevention and health promotion efforts.  During the 1970s and 80s the literature on the epidemiology of gun violence increased dramatically and public health scholars began advocating for policies that focused on individual behavior and on the sale, possession, and use of guns. (On the topic of the historical treatment of guns by the discipline of public health, see the work of Mair, Teret, and Frattaroli.)

Given the new public health focus on gun injury prevention, and in response to increasing gun violence and accidental deaths, in 1975 the District of Columbia council passed what for decades were considered the toughest gun laws — including an outright ban on handgun ownership — in the nation. In 2006, six D.C. residents (including Dick Heller) wanting to keep handguns for self-defense purposes challenged the law, losing at trial but winning on appeal. The Supreme Court granted certiorari.

Prior to Heller, the Supreme Court had never ruled on whether the Second Amendment encompassed an individual right to possess firearms for private use or conferred only a collective right to use guns to arm state militias. In its 5-4 decision, the Court ruled, over two separate dissents, that the Amendment includes an “individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes.” (Because D.C. is a federal enclave, the Court did not reach the question whether the Second Amendment is incorporated against the states, but it will answer that question, likely by the end of this Term, in the case of McDonald v. City of Chicago.)

In the majority opinion, Justice Scalia wrote that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table” — for example, an outright ban on handgun ownership. At same time, however, recognizing that no constitutional right is limitless, the majority offered a non-exhaustive list of laws likely not barred by the Second Amendment, including: bans on gun possession by dangerous persons; bans on the carrying of firearms in “sensitive places” (e.g., schools); laws imposing conditions and qualifications on gun sales; bans on concealed weapons; bans on machine guns and assault weapons; and laws to prevent gun accidents. Notably, this list encompasses the great majority of gun laws currently in place in the U.S.

Interestingly, Heller’s impact thus far on states’ ability to utilize their police powers to regulate in the public’s interest has been far gentler than many people, on both ends of the political spectrum, initially predicted. Indeed, more than 150 federal decisions on the constitutionality of gun control laws have been handed down since Heller, and not a single law has been invalidated for violating the individual right to possess a firearm. For example, the following types of laws have been upheld: bans on ownership for convicted felons, illegal immigrants, and drug addicts; bans on machine guns and sawed-off shotguns; bans on carrying near schools and in post offices; and bans on unregistered guns. In 2009, the Supreme Court itself upheld a federal law barring individuals convicted of crimes involving domestic violence from owning guns; the 7-2 decision never once mentioned Heller.

It is without question a distinct possibility that it is simply too soon to make any judgments about whether Heller will eventually bear the hallmarks of a truly landmark constitutional decision. At the same time, given the early returns, it is also possible that Heller will remain a major case in theory, but merely a minor one in terms of public health policy.

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