Via a pointer from David Hardy I found John Lott’s article in the Maryland Law Review.
Lott discusses strict and intermediate scrutiny and what it means to Right-To-Carry laws and concludes the same thing as I did last month. Those proposing more, or even retaining, restrictions on firearms are going to have a very tough time meeting the threshold to overcome a 2nd Amendment challenge:
Under “strict scrutiny,” a regulation will only be upheld if it “furthers a compelling interest and is narrowly tailored to achieve that interest.” While government might regulate how guns may be carried, it seems doubtful that it can completely ban the “bearing,” or carrying, of guns. Whether such regulations must meet the same strict scrutiny test as regulations of other “fundamental” rights or a lesser standard of intermediate scrutiny, a balancing test is necessary. In the case of concealed carry laws restricting the right to carry a concealed gun in public, however, gun control proponents face a heavy burden.
That is, the governmental goal must be something crucial and there cannot be other less restrictive means of accomplishing the same goal. Intermediate scrutiny is an easier to meet standard where, as Judge Legg writes: “the government’s interest must be ‘significant,’ ‘substantial,’ or ‘important,’ . . . and the ‘fit’ between the challenged regulation and the asserted objective must be reasonable, though not perfect.”
The problem for the anti-gun people is that:
As Carlisle Moody and his co-authors recently summarized the literature: That is ultimately an empirical question. The only difference between “compelling” and “important” is how large that drop has to be before the regulation is allowed. In addition, under either standard, gun control advocates must show that there are not other ways of accomplishing the reduction in crime.
There have been a total of 29 peer reviewed studies by economists and criminologists, 18 supporting the hypothesis that shall-issue laws reduce crime, 10 not finding any significant effect on crime, including the NRC report, and [Aneja, Donohue, and Zhang]’s paper, using a different model and different data, finding that right-to-carry laws temporarily in-crease one type of violent crime, aggravated assaults.
With only one study out of 29 supporting the thesis of the anti-gun position what are they going to do?
Well, of course they will do exactly what they have been doing since right-to-carry came up as a legislative agenda and they continued to do even in 2008 and 2010 with the Heller and McDonald decisions:
Murder and violent crime rates were supposed to soar after the Supreme Court struck down gun control laws in Washington, D.C., in 2008 and Chicago in 2010. These were the Heller and McDonald decisions that divided the Supreme Court in close five-to-four votes.
Politicians predicted disaster. “[M]ore handguns in the District of Columbia will only lead to more handgun violence,” Washington’s Mayor Adrian Fenty warned the day the Court announced its decision. In Chicago, Mayor Richard Daley predicted that we would “go back to the Old West, you have a gun and I have a gun and we’ll settle it in the streets.” Similarly, the New York Times editorialized about the Supreme Court’s “wrongheaded” Heller decision.
The results were no surprise to us:
But Armageddon never happened. Data released for Chicago and Washington shows that murder and gun crime rates didn’t soar, they didn’t even rise after the gun bans were eliminated—they plummeted. In fact, Chicago and Washington’s crime rates have fallen much more than the national crime rate.
I expect the anti-gun people stuck their fingers in their ears and are yelling “LA-LA-LA-LA-LA I CAN’T HEAR YOU!” As tough as might be to imagine they have a reality distortion field that warps reality for them almost as much as a black hole warps space and time. Like black holes those inside the reality distortion fields cannot seem to escape the hold on them, there isn’t much we can do to help them, and they release toxic radiation as they evaporate.
The major difference is that even though they are distributed throughout the population we are getting to the point where we can essentially ignore them and you can’t ignore a nearby black hole.
Chicago’s murder rate this year is on pace to set a new record. This is the fact the anti’s will immediately grab. Of course, most of these are gang battles, being waged by prohibited persons, but that’s a tiny detail they won’t bother with. Does anyone find it odd that Chicago’s murder clearance rate is something around 30%?
I should like to insert a small note here.
I do not believe that there can be a truly compelling public interest which morally requires the infringement on the rights of a single individual. I assert that the claim is risible and founded in an abysmal (dare I say, deliberate) misunderstanding of individual rights.
All negative externalities I have heard put forth for, e.g., infringements on RKBA, can be dealt with through a negotiation between two private individuals — even granted albeit the negotiations are conducted under state auspices. Society as a whole has no legitimate interest. The claim that gun control is needed for the maintenance of good social order is a notion that simply cannot pass a horselaugh test. (See Lott’s own studies.)
I understand that the legal folk feel it necessary to pay lip service (at least) to certain collectivist notions, but — really — they don’t stand up to scrutiny. They just don’t. I think even Lott (PBUH) is immune to this, as wise as he appears otherwise. It is not the conventional wisdom, true. But, absent even the smallest push back in favor of individualism, thus will it always remain. Consider me the pebble before the avalanche.
@Mark, while I agree with you the reality is the courts do recognize “compelling interests” and law enforcement enforces more (mostly) or less along those lines. Hence the best we can do is push in the correct direction. Glancing blows against the borders of the guidelines probably don’t hurt our cause any but going straight against the courts interpretation of the constitution are probably non-productive.
My takeaway from such examples is that they prove the antis’ assertions to be lies. The antis claim they only care about reducing crime and making people safer (aren’t they so sweeeet). When it turns out that more gun freedom is shown to either have no effect, or to reduce crime and improve overall safety, the antis are still opposed to gun freedom. Hence they lie about their motivations.
I say the whole thing starts with an anti-liberty (i.e. power-hungry) position, and then it seeks to rationalize itself. That explains all of the seemingly bizarre or otherwise incoherent behavior of the left.
When the rationalizations are proven false, the positions remain the same. Maybe the rationalizations are adjusted at some stage when the public stops falling for the previous ones, but the position (“we need more restrictions”) is maintained, regardless.
That explains how “Global Cooling” morphed into “Global Warming”, which in turn morphed into “Global Climate Change”. The position has remained consistent– “We need massive, global political powers to restrict human activity and redistribute wealth” but the rationalizations have flip-flopped all over the place as one dire prediction after another has proven false. It’s a very, very simple and transparent game they play.