Using Civil Litigation to Reduce Gun Violence – Franklin Zimring
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Using Civil Litigation to Reduce Gun Violence – Franklin Zimring

January 22, 2020

(light music) – My name is Frank Zimring and
I’m here to make us nervous. But I only have 12 minutes to do that and my topic is the Second
Amendment as a legal principle and potential obstacle to the work that lots of the people in here do. Can you do that in 12 minutes? I think so. The first decade of Second
Amendment Constitutional law in the United States has two
important substantive pillars. Which are very difficult to harmonize with each other in a principled manner. There are also two cases. District of Columbia v.
Heller, decided in 2008, and McDonald v. City of Chicago, decided by the Supreme Court
a couple of years later. There are two Supreme Court precedents. There are lots of
Federal Court precedents. But those two principles,
the first principle enunciated by Heller and extended
to the states by McDonald is that there is a
personal Second Amendment right against both Federal
and State governmental power to keep and bear firearms,
including explicitly, in Heller, to keep and bear handguns. How do we know handguns
are covered by Heller? Because those were the
only guns regulated by the ban in DC and again,
in McDonald in Chicago. So that’s principle one,
we had a newly emergent personal right to guns. The second principle, also from Heller, is that quote longstanding
and quote presumably lawful governmental
restrictions on gun ownership and on use, do not violate that brand-new Heller, McDonald personal right. So those are the two pillars. We’ve got a right, but
longstanding and presumably lawful government restrictions
on gun ownership are okay. Now, what’s happened since? A wide variety of gun
control laws have been challenged in Federal
courts in the United States, and have been upheld as consistent with that second principle in
Heller by Federal courts and haven’t been either considered, and therefore reversed, by
the Federal Supreme Court. What kinds of laws have been tested and upheld by Circuit Courts of Appeal? Well, let’s take a New
York law that Ms. Bronson and I were discussing earlier. State laws that restrict
handgun ownership and use to persons with special needs
to own them and to carry them, have been upheld by
Circuit Courts of Appeal and not reversed in the Supreme Court. Question, how can laws
which only allow a small fraction of adults to own
handguns be consistent with personal rights to own handguns? I’ve only got 12 minutes,
so I can’t answer that. Except to tell you that
the second principle seems to cover and restrict
the first principle, at least if you’re in the Second Circuit. So, so far what we’ve got
is that Heller and McDonald only struck down municipal
handgun bans which were absolute. Everything else, if you
get to the right circuit, Circuit Courts have called lawful. Well, now I gotta tell
you about the future, and all I can tell you
about the future is that because those two branches
of the Heller analysis, are in no sense consistent
with one another. It’s very difficult to
predict on a principle basis what’s gonna happen next. The Supreme Court is narrowly divided, there are two new judges
on it and in my academic writing on this subject,
what I suggest to listeners, is stay tuned. If the right, that
personal right, expands, it could have very
serious implications for permissible controls,
including the civil litigation that you folks are gonna be talking about. If not, Heller becomes a minor element in the litigation and future of public law regulation of firearms. So any serious Constitutional expansion of the personal right is
tremendously important and we have absolutely no principled way of predicting whether that
serious right is gonna come that we can extract from the analysis of the current Supreme Court law. Now what the heck does that have to do with civil litigation? Well, it could have a lot to do with that. One possibility, is that
even if there were an extension in personal
rights and limitation of restrictions, a politically
motivated Supreme Court might let things like
civil litigation go ahead as a sort of an exchange
or political compromise. Is that possible? Lots of things are possible. But the second possibility,
is that restrictions that raise costs, raise costs to consumers, and the consumers are the
same folks that hold these at presently ill-defined
personal rights to own handguns. Under those circumstances,
substantial limits on both Federal and State
efforts to use civil litigation as a tool to reduce
unsafe firearms violence could easily be overshadowed
by Second Amendment rights. So again, two words, stay tuned. There are nine members
on the Supreme Court. It is a very exciting area, if you like uncertainty in high stakes circumstances and we live in a very interesting country, in a very interesting time, end of sermon. (applause)

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