The U.S. Court of Appeals for the District of Columbia Circuit recently overturned Washington’s law against keeping a gun inside one’s home. That’s my city, and I’m for the law–rather passionately. Here I propose that courts and national legislatures should generally respect local norms and rules (such as our gun law) that have strong cultural dimensions. That principle argues for gun control in Washington, DC, but against it in Montana or rural Texas.
If gun control prevented significant numbers of murders, the benefit to human life and welfare would strongly argue in its favor, everywhere. But the empirical evidence is controversial.
The Court of Appeals did not consider such evidence, but asked a constitutional question. Does the Second Amendment imply an individual right to gun-ownership? If so, what does that right entail? “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Reasonable people can reach various conclusions as they stare at this 18th century sentence. My only stricture would be to interpret the Second Amendment in the same way that you read the rest of the Constitution. Thus, if you are a strict constructionist, an originalist, a balancer of interests, a federalist, or a believer in congressional supremacy (to name just a few positions), that should guide all of your constitutional interpretations, not just some of them. This stricture seems correct, but it makes life difficult for people like me who are inclined to be near-absolutists about the First Amendment. We cannot use the Bill of Rights to legalize various exotic forms of expression yet ignore the right to “keep and bear arms,” which does (whether we like it or not) appear in the text.
Since the Constitution informs but does not decide this debate, I turn to the question of culture. In some parts of America, gun-ownership is a rite of passage. People expect to protect their own homes and not rely on the police, who may be far away. Hunting is a common recreation. Military service is admired. Kids play with toy guns and later with real ones. In other parts of America, guns are never seen in public except in officers’ holsters or during the commission of felonies. Children are taught to despise them. Even toy guns are seen as symbols of violence.
I’m not a cultural relativist. I do not assume that all cultural values have equal merit. There are good moral reasons, for example, against guns. Nevertheless, we should be cautious about imposing general principles on diverse communities. The values and norms of each place tend to hang together. We cannot isolate and change one part of a local culture without altering the other parts in unpredictable ways. When some outside force (such as the national legislature or a court) bans a traditional norm, it doesn’t just disappear. We often see noncompliance, backlash, resentment, and various substitute habits arise that may be even worse than the one that was banned.
This is an argument for respecting my local culture, which is urban, predominantly liberal, and very anti-gun. I’m saying that the DC Circuit should leave DC alone. By the same logic, Congress should not restrain traditions of gun-ownership in Middle America.
The same reasoning would also argue against Brown v Board of Education, in which the Supreme Court overruled racial segregation that had been deeply entrenched in many communities. I’m strongly in favor of Brown. But we shouldn’t draw a hasty general lesson from it: namely, that whenever a local value is bad, a national law should ban it. There are two major reasons to view desegregation as a special case. First, separate and unequal schools for minority children egregiously violated core constitutional values. Second, desegregation was not merely imposed from without; there was a vital indigenous movement in favor of it–the Civil Rights Movement, which was rooted in the most segregated parts of America. Even given these special circumstances, desegregation has been a partial failure. There was much noncompliance and resistance, and most schools are still de facto segregated today. The results might be worse if we either banned guns everywhere or imposed a universal right of individual gun-ownership.