Gun Control after Heller: Litigating against Regulation
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Description
The American system of firearm regulation is again threatened by litigation, but now the threat comes from the opposite direction. In June 2008 the U.S. Supreme Court struck down the District of Columbia’s handgun ban (D.C. v. Heller, 118 S.Ct. 2783), recognizing for the first time an individual constitutional right to own a gun. While the immediate effect of this opinion is only to invalidate an unusually stringent regulation in a city that is also an enclave of the federal government, the domain of this new right has not yet been clearly defined. It will be subject to numerous tests in litigation during the years to come. Existing regulations governing firearms commerce and possession will be challenged by affected parties claiming they violate the new right that the majority of the Supreme Court has discovered in the Second Amendment. Litigation will seek to curtail, rather than extend, restrictions on the gun commerce, but this new scenario is once again an end-around the political process. The “core right” established by the Heller decision is the right to keep an operable handgun in the home for self-defense purposes. If the Supreme Court extends this right to cover state and local jurisdictions through the Fourteenth Amendment, the result of this new litigation against regulation is likely to include the elimination of the most stringent existing regulations—such as Chicago’s handgun ban—and could also possibly ban regulations that place substantial restrictions or costs on handgun ownership. Our analysis is necessarily speculative, but we find evidence in support of four conclusions: [1] The effect of Heller may be to increase the prevalence of handgun ownership in jurisdictions that currently have restrictive laws. [2] Given the best evidence on the consequences of increased prevalence of gun ownership, we predict that these jurisdictions will experience a greater burden of crime due to more lethal violence and an increased burglary rate. [3] Nonetheless, a regime with greater scope for gun rights is not necessarily inferior – whether the restrictive regulations in places like Chicago, California, Massachusetts, and New York City would pass a cost benefit test may depend on whether we accept the Heller viewpoint that there is a legal entitlement to possess a handgun. We develop this view by use of the Coase theorem applied to the subjective value of gun rights. [4] In any event, the core right defined by Heller appears to leave room for some regulations that would reduce the negative externalities of gun ownership. The remainder of the chapter is organized as follows In the next section we characterize private gun ownership and uses, together with the existing system of firearm regulations in the United States. Section 5.3 discusses the initial wave of tort litigation against the gun industry that arose during the 1990s, while section 5.4 discusses the recent Heller decision and what it may, or may not, imply for existing firearm regulations at the federal, state, and local levels. Section 5.5 reviews what is at stake in the litigation against regulation, and provides an analysis from the welfare-economics perspective given alternative entitlements. Section 5.6 concludes.
Source Publication
Regulation versus Litigation: Perspectives from Economics and Law
Source Editors/Authors
Daniel P. Kessler
Publication Date
2011
Recommended Citation
Cook, Philip J.; Ludwig, Jens; and Samaha, Adam M., "Gun Control after Heller: Litigating against Regulation" (2011). Faculty Chapters. 1812.
https://gretchen.law.nyu.edu/fac-chapt/1812
