Abortion, Guns & Politics at the AALS
Here are a couple of thoughts from the two "hot topics" panels in which I participated at the AALS over the last couple of days:
1) On my reproductive rights panel, Yale Law Prof Jack Balkin made the claim that the Republican Party---which he distinguished from the social conservatives who are on part of the Republican coalition---has not, over the last generation, sought the reversal of Roe v. Wade, but has instead sought to chip away at the decision while leaving a core right protected. I objected that this has been the effect of some wobbly Supreme Court Justices, but that in fact during this period, the Party has sought to overturn Roe, even though I agreed with Jack's underlying premise that overruling Roe might well be bad for the Republican Party as an institution, because that would de-energize religious conservatives and energize liberals on the issue. Nonetheless, I said that but for the flukes of who controlled the Senate and the vagaries of judicial appointments, the Republicans would have succeeded in overturning Roe, even if this was not in the Republican Party's interest. Balkin then reiterated that he was distinguishing between the Republican Party and its interest groups (which seemed to me not to address my objection, as the Party only does what the balance of forces among its interest groups determines), and claimed that the failure to overturn Roe despite so many Republican appointments tells us about the Party's revealed preferences. To which I say, no way. President Huckabee, indeed even President Giuliani, would name a Justice who would be the fifth vote to overturn Roe. But I'm hoping we don't get to test this proposition.
2) On my Second Amendment panel today, there was some discussion about how a decision upholding or rejecting the individual right view would play politically. We all pretty much agreed that a victory for the District of Columbia could be costly to the Democratic Presidential nominee, because it would activate the strongly Republican leaning gun rights groups. I said that I also thought a victory for Heller (the plaintiff) would help the Republicans, especially if it were 5-4, simply by making the issue salient and by emphasizing how closely divided the Court is, because the gun rights folks care more about this issue than do the gun control folks. Harvard Law Prof Mark Tushnet (the moderator) and GW Law Prof Bob Cottrol (from the audience) thought that a victory for Heller would be good for Democratic politicians and gun control advocates, who could then claim credibly that the gun control measures they favor are not in fact the first step on a slippery slope to abolition. That's an intriguing idea but I'm not sure. It strikes me that the win-by-losing strategy is always risky and unpredictable.
Posted by Mike Dorf
1) On my reproductive rights panel, Yale Law Prof Jack Balkin made the claim that the Republican Party---which he distinguished from the social conservatives who are on part of the Republican coalition---has not, over the last generation, sought the reversal of Roe v. Wade, but has instead sought to chip away at the decision while leaving a core right protected. I objected that this has been the effect of some wobbly Supreme Court Justices, but that in fact during this period, the Party has sought to overturn Roe, even though I agreed with Jack's underlying premise that overruling Roe might well be bad for the Republican Party as an institution, because that would de-energize religious conservatives and energize liberals on the issue. Nonetheless, I said that but for the flukes of who controlled the Senate and the vagaries of judicial appointments, the Republicans would have succeeded in overturning Roe, even if this was not in the Republican Party's interest. Balkin then reiterated that he was distinguishing between the Republican Party and its interest groups (which seemed to me not to address my objection, as the Party only does what the balance of forces among its interest groups determines), and claimed that the failure to overturn Roe despite so many Republican appointments tells us about the Party's revealed preferences. To which I say, no way. President Huckabee, indeed even President Giuliani, would name a Justice who would be the fifth vote to overturn Roe. But I'm hoping we don't get to test this proposition.
2) On my Second Amendment panel today, there was some discussion about how a decision upholding or rejecting the individual right view would play politically. We all pretty much agreed that a victory for the District of Columbia could be costly to the Democratic Presidential nominee, because it would activate the strongly Republican leaning gun rights groups. I said that I also thought a victory for Heller (the plaintiff) would help the Republicans, especially if it were 5-4, simply by making the issue salient and by emphasizing how closely divided the Court is, because the gun rights folks care more about this issue than do the gun control folks. Harvard Law Prof Mark Tushnet (the moderator) and GW Law Prof Bob Cottrol (from the audience) thought that a victory for Heller would be good for Democratic politicians and gun control advocates, who could then claim credibly that the gun control measures they favor are not in fact the first step on a slippery slope to abolition. That's an intriguing idea but I'm not sure. It strikes me that the win-by-losing strategy is always risky and unpredictable.
Posted by Mike Dorf
posted by Michael C. Dorf @ 12:02 PM
3 Comments:
At 2:25 PM,
egarber said…
Speaking of politics, is the question really about individual vs. collective rights in the mainstream? It seems to me that it's more about how far the right extends. Even among Democratic candidates, I think the former question is basically dead; the individual rights view seems to have won out.
As an example, here's Obama in an exchange recorded on Radio Iowa:
Henderson: "I'm wondering if what happened at Virginia Tech, in your opinion, might alter the debate about gun control."
Obama: "It's early to make a full assessment on how this changes our politics and the public mood. I think all of us are still just overwhelmed with grief for the families and for Virginia Tech and obviously people here remember what happened at the university and how painful it can be (a reference to the shootings at the University of Iowa). I do think that the evidence so far at least indicates that you've got a young man who was mentally deranged, was identified as such, was temporarily committed and was still able to obtain handguns and so one critical question is, 'What happened to our background check system? Why did it fail?' and it seems like we should be able to come to some bipartisan agreement on making that background system, background check system work. The second area which may be fought by the NRA, but I think has to be looked at is the availability of 19-round clips. I'm a strong believer in the rights of hunters and sportsmen to have firearms. I'm a believe in homeowners having a firearms to protect their home and their family. It's hard for me to find a rationale for a 19-clip semi-automatic. I said at a forum earlier this week, 'If you need 19 rounds to shoot a deer, you probably shouldn't be hunting' and so that I think is something that we should be able to have a reasonable conversation about."
Henderson: "Do you think this is a prickly issue for Democrats?"
Obama: "The problem that we've had is that the overwhelming majority of gun owners use those firearms safely, secure them properly and I think would be amenable to reasonable gun control laws. The NRA's attitude has been that any restriction is an infringement on the rights of gun owners and you know because of the breadth of their membership and the large amounts of money that they have at their disposal, I think they are oftentimes able to scare law-abiding gun owners into thinking that Democrats are going to take away their rights and part of what I think we have to communicate is that we are committed to maintaining the rights of lawful gun owners, but that doesn't contradict the need to keep guns out of the hands of the mentally ill or put limits on the accessibility of semi-automatic weapons or make sure that straw purchasers aren't dumping firearms into our inner cities."
Of course, Obama will temper his support with a pragmatic approach to enforce laws, etc. -- but his starting point is the individual's *right*.
At 4:07 PM,
egarber said…
Btw, my first comment isn't meant to suggest that the constitutional question is irrelevant or somehow must abide by political winds. I was just assessing the political question on its own.
At 11:37 AM,
Sobek said…
"I said at a forum earlier this week, 'If you need 19 rounds to shoot a deer, you probably shouldn't be hunting'..."
I know this doesn't address your point in posting the quote, but the clips are for pistols, which no one uses for hunting deer anyway. They are used for home defence. But I doubt Obama (or anyone, really) would argue that "if you need 19 rounds to stop an intruder, simple Darwinism suggests you shouldn't survive the encounter anyway."
Now onto the merits. You asked "is the question really about individual vs. collective rights in the mainstream?"
Depends who you ask, of course. The Supreme Court and attorneys trying to prognosticate should answer yes, it is. But for the average citizen, no, the technical theory of the law and constitutional construction is generally nowhere near as important as whether the individual thinks guns (or abortion, or obscenity, or warrantless searches) are a good thing or a bad thing. People like to constitutionalize their understanding of good policy, rather than concede that a law might be simultaneously a very bad idea, yet constitutional.
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