Violence in the Streets? Probably Not. Can State Actors Satisfy the Heightened Tiers of Scrutiny Standards of Review Using Contemporary Criminological Studies in Heller/McDonald Challenges?

Abstract

This article responds to various claims by gun-control advocates that there are highly negative, even catastrophic, consequences in America when individual States adopt a “Shall Issue” or “Right-to-Carry” (“RTC”) regime for issuing a Concealed Handgun License (“CHL”) to all law-abiding, qualified applicants. In contrast to these fears, law enforcement officers strongly support issuance of CHLs to qualified, law-abiding citizens. The most distinguished, non-partisan research institutes in the country have concluded that there is no good evidence that the enactment of an RTC law increases firearms violence. In addition, an inherent shortcoming of nearly all research on RTC laws is that it fails to focus on handgun crime and is therefore muddled by the data on other types of violence (i.e., suicides, knife violence). This article also addresses and rebuts the speculative assertions that RTC laws will lead to increases in other types of crime. The fundamental error of opponents of RTC laws is that they view restrictions on gun ownership as a matter of social policy subject to utilitarian-inspired cost benefit analyses instead of a fundamental right under the U.S. Constitution—namely, the Second Amendment right to keep and bear arms. Properly viewed, social science research on the consequences of RTC laws should be irrelevant because the Constitution expressly protects the right to bear arms. Therefore, as the D.C. Circuit concluded, laws that bar typical law-abiding citizens from carrying firearms in public for self-defense are categorically unconstitutional. See Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). But even if the social science were relevant, the available evidence fails to meet the requirements that would apply under a heightened standard of constitutional scrutiny to justify laws that meaningfully restrict the right of law-abiding citizens to carry firearms in public for self-defense. As Judge Richard Posner of the Seventh Circuit — no fan of the Heller decision — concluded after a thorough review of the evidence, “the theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense.” Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). In drafting this article, I have tried to write from the perspective of an attorney seeking to litigate questions about whether the government could satisfy a standard of review such as strict or intermediate scrutiny. This constitutional question may become a purely academic one once the U.S. Supreme Court rules in New York State Rifle & Pistol, Inc. v. New York City, 18-280. The tiers of scrutiny judicial review standards, including strict and intermediate scrutiny, should be rejected by the Supreme Court in that case. Nevertheless, the exercise undertaken in this article is warranted because several lower federal courts have embraced the tiers of scrutiny review standards in constitutional challenges to gun control laws under the Second Amendment — despite the Supreme Court’s decision in District of Columbia v. Heller, which expressly rejected the use of such balancing tests by courts. Regardless, I have not attempted to become (nor do I claim to be) a criminologist or statistician, but instead I have approached the available data as a reasonably informed professional interested in the subject matter who desires to obtain an understanding of the status of statistical proofs and the effect of right to conceal carry laws, if any, on public safety.