The Breyer Patch

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The Article

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.”

Mike S. Adams
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