Legal Commentary

A recent New York Times article on Heller?s progeny suggests the hotly debated case is ?firing blanks.?  Sandy Levinson (who, in full disclosure, was a professor of mine while I was in law school) is quoted as saying that ?Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.?  The idea is that, because Heller won't overturn many statutes, it's doesn't matter much. ( I?m sure Sandy would agree that it matters to people in the District who want to own handguns, but that is admittedly a pretty small population. The issue that the article is raising and on which Levinson is prognosticating is the broader impact on our society.)  

I disagree. Heller matters a lot.  

But the way it matters escapes most of those involved in the debate.  The effect won't be measured in terms of statutes overturned.  Instead, Heller's effects will be expressive and ultimately, as a result of its expressive influence, practical. 

Expressively, it?s probably true that, to the radical wing of the gun-rights movement, Heller and its progeny will seem like small change ? their vision of Americans happily armed to the gills without any state oversight or intervention has not been vindicated.  But to the average gun owner who worried that the Constitution afforded her no protection, Heller is deeply reassuring. Consider how different Heller?s message is from the message sent by the Director of the CDC's National Center for Injury Prevention and Control under the Clinton Administration, Mark Rosenberg when the last major gun control measure was considered.  He described the Clinton administration's proposed initiative on gun violence this way: ?We need to revolutionize the way we look at guns, like what we did with cigarettes. It used to be that smoking was a glamour symbol ? cool, sexy, macho.  Now it is dirty, deadly ? and banned.?  Even if one were trying, it would be hard to script a message more offensive to ordinary gun owners.

Practically speaking, Heller matters, too, but in ways that most in the debate miss.  The truth is that gun bans in most of the places like DC and Baltimore where gun control initiatives are popular don?t benefit the citizens of those cities by reducing crime; in fact, gun bans probably exacerbate gun violence in those cities.  Why do I think that?  Not because, as many gun-rights advocates fervently argue, more gun ownership in those cities would deter criminals, an issue on which I have no opinion.  Rather, it?s because, within the expressive economy of gun rights and regulation, gun bans in DC and other northern cities make ordinary gun owners elsewhere fear dispossession, which generates opposition to any tracking of firearms in the states where illegal guns originate ? after all, in the absence of a right, gun tracking could be a way of dispossessing law-abiding gun owners in the future!  By taking complete dispossession off the table, Heller removes the central reason that moderate gun owners oppose information-gathering efforts.  

At least in that sense, Heller matters.