"Gun Control after Heller: Threats and Sideshows from a Social Welfare
Perspective"
U of Chicago, Public Law Working Paper No. 259
Author: PHILIP J. COOK
Duke University - Terry Sanford Institute of Public
Policy, Duke University - Economics Dept,
National Bureau of Economic Research (NBER)
Co-Author: JENS LUDWIG
Georgetown University - Public Policy Institute
(GPPI), National Bureau of Economic Research
(NBER), Institute for the Study of Labor (IZA)
Contact: ADAM SAMAHA
University of Chicago - Law School
Full Text: http://ssrn.com/abstract=1338927
ABSTRACT: What will happen after Heller? We know that the Supreme Court will no
longer tolerate comprehensive federal prohibitions on home handgun possession
by some class of trustworthy homeowners for the purpose of, and perhaps only at
the time of, self-defense. But the judiciary could push further, if nothing
else by incorporating Heller's holding into the Fourteenth Amendment and
enforcing it against states and municipalities. In fact, the majority opinion
offered little guidance for future cases. It presented neither a purely
originalist method of constitutional interpretation nor a constraining
doctrinal framework for evaluating other regulation - even while it
gratuitously suggested that much existing gun control is acceptable. In the
absence of more information from the Court, we
identify plausible legal arguments for the next few rounds of litigation and
assess the stakes for social welfare.
We conclude that some of the most salient legal arguments after Heller have
little or no likely consequence for social welfare based on available data. For
example, the looming fight over local handgun bans - an issue on which we
present original empirical data - seems largely inconsequential. The same can
be said for a right to carry a firearm in public with a permit. On the other
hand, less prominent legal arguments could be quite threatening. Taxation and
regulation targeted especially at firearms might be presumptively disfavored by
judges in the
future, along the lines of free speech doctrine. This could have serious
consequences. In addition, Second Amendment doctrine might generally dampen
enthusiasm for innovative regulatory responses to the problem of gun violence.
The threat of litigation may inhibit policy experimentation ranging from
micro-stamping on shell casings, to pre-market review of gun design, to
so-called personalized firearms, and beyond.
**************************************************
Professor Joseph Olson, J.D., LL.M. o- 651-523-2142
Hamline University School of Law (MS-D2037) f- 651-523-2236
St. Paul, MN 55113-1235 c- 612-865-7956
[email protected]
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