Justice Stephen Breyer was one of the four dissenting voices in District of Columbia v. Heller (2008), the landmark Supreme Court case ruling that the Second Amendment right to bear arms is an individual right, rather than a collective right, which merely attaches to service in a state militia. On page 35 of his 44 page dissent, Justice Breyer states the following:
“The upshot is that the District’s objectives are compelling; its predictive judgments as to the law’s tendency to achieve those objectives are adequately supported [emphasis mine]; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no less clear less restrictive alternative.”
Justice Breyer was defending a District of Columbia law that banned handguns altogether as part of a stated objective to reduce violence in the District. The problem with Breyer’s assertion that “predictive judgments as to the law’s tendency to achieve those objectives are adequately supported” is that it’s patently false. Nonetheless, Breyer continues on the final page (p. 44) of his dissent:
“In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”
The wording of this sentence implies that because crime is high in urban areas the government has an interest in restricting access to handguns. Nothing could be farther from the truth.
The Court is often in the position of making a decision by balancing one or more government interests against one or more individual liberty interests. Take, for example, the 1979 case of Delaware v. Prouse, which considered the constitutionality of stopping citizens in roadblocks for brief searches not predicated on probable cause or even individual suspicion.
In the case of the roadblock, the government interest is easily distinguished from the individual liberty interest. The government seeks to advance an interest (reducing highway fatalities associated with drunk driving) by setting these roadblocks. The Court approved the roadblocks by taking into account two individual liberty interests: 1) Demanding that the stops minimize intrusion (by being brief) and 2) Demanding that the stops minimize discretion (by stopping every car, or every other car, or every third, etc.).
In the case of gun bans, distinguishing between the two interests has been more difficult. At first, it was simply assumed that banning handguns would reduce crime. After fifteen years of research and sixteen refereed publications finding a contrary result, it’s time we recognize that high crime in urban areas promotes the individual interest in owning and possessing handguns and in the implementation of “shall issue” concealed carry laws.
Nonetheless, the city of Chicago is defending a law which bans handguns entirely – even for use within one’s home. But the case is being challenged by a plaintiff named Otis McDonald. McDonald is asking the Court to consider the individual right to bear arms affirmed in Heller as binding on all fifty states through the Fourteenth Amendment.
It will be interesting to see how this plays out. The Fourteenth Amendment, ratified in 1868, was a crucial part of the Republican effort to end slavery – even after involuntary servitude had been banned by the Thirteenth Amendment. Back then, Southern Democrats targeted former slaves using vagrancy laws, which made it a crime to “wander without any visible means of support.” After imprisoning the former slave, the Southern Democrat would allow him to work off his fine by picking cotton on a plantation.
These “convict lease systems” were little more than legalized slavery. Thankfully, the Equal Protection clause of the Fourteenth Amendment hastened their extinction.
Today, many African Americans – like plaintiff Otis McDonald – are prisoners in their own homes. Urban violence disproportionately affects them. And any law that makes urban violence worse is a law that denies them Equal Protection.
The year after Justice Breyer lost in his bid to uphold the D.C. gun ban a funny thing happened. The murder rate in D.C. plummeted by 25%. To date, he has not retracted his statement that “predictive judgments as to the law’s tendency to achieve those objectives (reducing violence in D.C.) are adequately supported.”
It is rare to see such a convergence of individual liberty interests and government interests as we have in the McDonald case currently before the Supreme Court. It is rarer still to hear a sanctimonious Justice admitting that his ideas are wrong and that their consequences fall disproportionately on those who dwell in “crime ridden urban areas.”
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Mike S. Adams was born in Columbus, Mississippi on October 30, 1964. While a student at Clear Lake High School in Houston, TX, his team won the state 5A soccer championship. Mike Adams graduated from C.L.H.S. in 1983 with a 1.8 GPA. Mike Adams was ranked 734 among a class of 740, largely as a result of flunking English all four years of high school. After obtaining an Associate's degree in psychology from San Jacinto College, Mike Adams moved on to Mississippi State University where he joined the Sigma Chi Fraternity. While living in the fraternity house, his GPA rose to 3.4, allowing him to finish his B.A., and then to pursue a Master's in Psychology. In 1990, Mike Adams turned down a chance to pursue a PhD in psychology from the University of Georgia, opting instead to remain at Mississippi State to study Sociology/Criminology. This decision was made entirely on the basis of his reluctance to quit his night job as member of a musical duo. Playing music in bars and at fraternity parties and weddings financed his education. Mike Adams also played for free beer.
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Upon getting his doctorate in 1993, Adams, then an atheist and a Democrat, was hired by UNC-Wilmington to teach in the criminal justice program. A few years later, Adams abandoned his atheism and also became a Republican. He also nearly abandoned teaching when he took a one-year leave of absence to study law at UNC-Chapel Hill in 1998. After returning to teach at UNC-Wilmington, Adams won the Faculty Member of the Year award (issued by the Office of the Dean of Students) for the second time in 2000.
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After his involvement in a well publicized free speech controversy in the wake of the 911 terror attacks, Adams became a vocal critic of the diversity movement in academia. After making appearances on shows like Hannity and Colmes, the O'Reilly Factor, and Scarborough Country, Adams was asked to write a column for Townhall.com.
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Today Mike Adams enjoys the privilege of expressing himself both as a teacher and a writer. Mike Adams is also an avid hunter and reader of classic literature. Mike Adams published his first book, Welcome to the Ivory Tower of Babel, in 2004. His second book, Feminists Say the Darndest Things: A Politically Incorrect Professor Confronts "Womyn" On Campus, was published in 2008.
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