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A Shameful Supreme Court Decision

A Shameful Supreme Court Decision June 26, 2008

The US Supreme Court has declared the District of Columbia’s ban on handguns to be unconstitutional as it violates the so called individual “right to bear arms”. We need to unpack this. The Catholic perspective is to start with Aquinas, who viewed law as “an ordinance of reason for the common good, made by him who has care of the community”. The Enlightenment era gave us another view of the law, predicated on the notion of individual liberty as the foundation of society. In other words, the person has to right to do as they wish in search of personal fulfilment, as long as it does not impinge upon the rights of another. Law is then all about the enforcement of social contracts.

It would be erroneous not to credit the Enlightenment with its achievements. Too often, rulers abused the notion of “common good” (if they even bothered to seek a rationale) to trample upon human rights and human dignity. In re-discovering and liberating this essential Catholic teaching, we must be grateful to “Enlightenment values”. But we cannot go too far, for the underlying anthropology is false. It is used to support laissez-faire liberalism, based on the notion that market exchange is a “free” exchange that reflects natural differences in the various actors. This approach as been condemned vociferously by the Church from Pope Leo XIII onwards, for the Church looks at these issues through the lens of the common good, the way Aquinas viewed the law. The ethic of private liberty has led directly to gay marriage, where the goal is simply the satisfaction of personal desires as opposed to the common good which would emphasize the bearing and rearing of children. And of course abortion is justified in this manner: the “right to privacy” is paramount, and the unborn simply cannot be active participants in a social contract.

This is a rather lengthy introduction, but, I believe, an essential one. For the right to bear arms that the Supreme Court upheld today comes directly from this notion of personal liberty trumping the common good. For the authorities charged with the common good in DC, an area suffering from extremely high gun-related violence, felt that a ban on handguns was appropriate. Of course, this ban can have limited effect absent border controls at the Potomac river. But is this a valid argument for inaction? To use that logic, the ability to travel means that no laws restricting abortion should be enacted either.

At this stage, it is useful to see what the Church teaches on this matter. Here are some statements from the USCCB:

“Since such a significant number of violent offenses are committed with handguns and within families, we believe that handguns need to be effectively controlled and eventually eliminated from our society. We acknowledge that controlling the possession of handguns will not eliminate gun violence, but we believe it is an indispensable element of any serious or rational approach to the problem….

We believe that only prohibition of the importation, manufacture, sale, possession and use of handguns (with reasonable exceptions made for the police military, security guards and pistol clubs where guns would be kept on the premises under secure conditions) will provide a comprehensive response to handgun violence.”

That is quite clear. We need a national ban on handguns. I would like the many Catholics who are cheering this ruling to explain why they so gleefully go against the bishops on this one. For this ruling really pits the two alternative approaches to law against each other. Do we go with personal liberty, which includes the right to own handguns for self-defense? Or do we go with the common good, in an atmosphere of out-of-control gun death? I stand with the Church on this one, and deem the Supreme Court decision quite shameful, rooted as it is in the kind of reasoning that gave us Roe v. Wade and gay marriage.

Scalia’s history lesson is also misplaced. First, he appeals very much to the Enlightenment-era philosophy that was prevalent when the constitution was written. Just because the “founders” believed it does not believe it is right. And anyway, as I noted, you can draw a direct line from this position to Roe v. Wade. Second, he forgets that public policy geared to the common good differs by age. A simple example: it would not be possible to achieve universal health care during this middle ages, so there is no duty to try. You know where I am going with this. Scalia’s attempts to freeze-frame jurisprudence in the late-18th century is quite at odds with the notion of law promoting the common good. Then again, his is a sola-scriptura approach to textual analysis.

FInally, the empirical question. Let me point out for a start that the rest of the developed world views the United States as extreme and insane in its approach to guns. When gun homicide and suicide rates are off the charts, the American defenders to the pseudo-right shrug their shoulders and claim that banning guns would not solve anything. It’s just that, well, the United States is just more violent than elsewhere. Nonsense on stilts.

According to the extensive research of David Hemenway from Harvard’s School of Public Health, the US is actually not that exceptionally violent, at least among other high-income, industrialized nations. Crimes like assault, car theft, burglary, robbery, and sexual incidents are not particularly high by OECD standards. What differs about the US is “lethal violence”. So while guns don’t induce people to commit crimes, they make crimes lethal.  The international evidence is beyond dispute: the availability of guns leads to greater rates of homicide and suicide, and no offset in terms of lower non-gun murders. We are talking here about a primary component of the culture of death.

I’ve even tried to do a simple empirical study on this blog, looking at cross-country gun ownership and homicide rates. I found that gun ownership rate are positively and significantly related to homicide and suicide rates across 19 advanced economies, and that a bevy of other factors — GDP per capita, demographics, ethnic divisions, urbanization and inequality– did not seem to matter on their own. It’s the guns, stupid! What causes gun deaths is the availability of guns. Score one for Occam’s razor. I did a little further analysis, to see if the availability of guns enhanced the underlying factors that might cause violence. It does. Introducing a non-linear element in the regression suggests that gun ownership is especially detrimental when ethnic divisions and inequality are elevated. Does that sound like any country you know?

The other argument often touted in that many gun-owning communities are inherently peaceful, and that the problems are localized to a few inner-city areas. Even if that were true, what happened to the notion of solidarity? What happened to the common good? Ah, I forgot, individual liberty matters more. Silly me.


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