Students
and faculty of University of North Carolina at Chapel Hill gathered Wednesday
night at the Dean Smith Center to pay their respects to the professor shot and
killed this week on campus. Credit: APLast
Monday, August 28, 2023, there was yet another incident of gun violence in
the US. This time, a faculty member at the University of North Carolina at Chapel
Hill was shot dead on campus. A graduate student has been charged for the
murder. This is yet another reminder of how unregulated guns continue to impact
American society.
While
some states have made decent attempts at regulating guns, the posturing of the
US Supreme Court compounds the problem. Two consequential regulations failed to
survive judicial intervention in District of Columbia v Heller (2008) and New
York State Rifle & Pistol Association, Inc., v. Bruen (2022). The Supreme
Court declared the District of Columbia regulation requiring persons to obtain
registration certificates for handguns and the New York State regulation of
public carry of handguns unconstitutional
on grounds that they conflict with the Second Amendment to the Constitution of the
United States (the “Constitution”) which provides for the right to “keep and
bear arms”.
The
reasoning of the Court in Heller (written by Justice Scalia) and Bruen
(written by Justice Thomas) is troubling, considering the significant public
interest or public policy justifications for the regulatory attempts, in my
view.
First,
Justice Scalia's “originalist” thinking in Heller seems subjective and
offers no objective test with which to approach the issue. In his view, the
rationale for the Second Amendment stems from the concerns of Antifederalists that
the Federal Government would disarm the people in order to disable the States citizens’
militia; enabling a politicized standing army or a select militia to rule. Hence,
the Second Amendment was to deny Congress the power to curtain the ancient
right of individuals to keep and bear arms, so that the ideal of a citizens’
militia would be preserved. While Justice Scalia relies exclusively on history
in his analysis, he ignores the fact that history is no effective barometer with
which to assess the right to keep and use guns in the context of modern day
circumstances. None of the historical concerns that informed the framers’
thinking on the Second Amendment are present in modern day America.
Secondly,
Constitutions all over the world containing elaborate Bills of Rights recognize
the power of the State to restrict certain rights where the state can show
sound public interest or public policy justification. Of course, the state's
power to restrict rights is not absolute, just as no right is. Even the right
to life is restrictable in modern constitutional democracies. Therefore, where
there is a conflict between an individual right (such as the right to “keep and
bear arms”) and a larger public interest, the Court must have an objective test
for doing a necessary balancing act. The “originalist” Justice Scalia fails to
do any such balancing act and relies exclusively on history; an inadequate and
often subjective tool.
Curiously,
we see Justice Scalia undertake a balancing act in Vernonia School District v
Acton (1995) when a Student Athlete Drug Policy (the “policy”) which authorizes
random urinalysis drug testing of students is challenged on constitutional
grounds; that it conflicts with, amongst others, the Fourth Amendment which
prohibits unreasonable searches and seizures. Justice Scalia gives judicial
blessing to the policy. In the words of the Court, “The Fourth Amendment
does not protect all subjective expectations of privacy, but only those that
society recognizes as “legitimate’”. The school had a sound public policy
justification for the random tests: to address a drug problem amongst students.
Given
the facts and circumstances of Vernonia, Justice Scalia’s reasoning was
persuasive. However, a comparative analysis of Scalia's opinions in Vernonia and
Heller—both involving individual rights (privacy and the right to “keep
and bear arms”) shows a certain lack of consistency in his judicial approach.
In Vernonia, he undertakes a balancing act, and rightly so. In Heller,
he relies on history.
Decided
earlier in time, Justice Thomas dwells on Justice Scalia’s “originalist”
thinking in Heller to inform the Court’s opinion in Bruen, even
though Bruen posed a more nuanced question concerning the right of a
citizen to carry a gun in public.
Of
course, at the time of deciding Heller in 2008, Justice Scalia was fully
aware that gun violence was a “serious” problem in the US—a “pandemic” even, to
borrow his words in Vernonia. But Scalia concluded “…it is not the role
of the Court to pronounce the Second Amendment extinct”. Heller and Bruen
still leave many questions unanswered about the scope of state regulation
of guns that is allowable under the Constitution. However, these consequential precedents would
predictably inform the Court’s decisions in cases to come, however narrowly the
legal questions are framed.
In
his dissenting opinion in Bruen, Justice Breyer sets out the bare facts: “In
2017, there were an estimated 393.3 civilian-held firearms in the United
States, or about 120 firearms per 100 people. That is more guns per capita than
in any other country in the world”. “…in 2020, an average of about 124 people
died from gun violence everyday”.
Of
what use is constitutional design if it cannot be leveraged to address a major
national pandemic?