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July 23, 2004

What's good enough for the Times...

By Walter Olson

My approach to the Second Amendment differs from yours. I don’t try to keep up with the literature on how changes in gun availability may affect crime and accident rates, although I’m aware that it’s quite contentious and I gather that relatively few empirical assertions are accepted by both sides. On the other hand, I’m keenly interested in the historically held view of private gun ownership as providing, in your words, “insurance against lawless aggression. ... by government.” This topic gripped the American patriots of the Revolutionary Era, and English patriots for centuries before that, because they believed that public liberty would not remain secure indefinitely if the authorities had guns and the people did not. If they were right to hold that view, then trends in the safety of firearms as a consumer product may be beside the point. (Indeed, as I understand it, the right to bear arms was enshrined in the Bill of Rights at a time when guns often blew up in their owners’ faces.)

The other thing about the Second Amendment that fascinates me is the way our courts have decided that they are not under the slightest obligation to enforce it, and have instead declined to intervene as various localities in the U.S. have more or less completely suppressed their citizens’ right to gun ownership. It’s hard to read the first two entries in the Bill of Rights without wondering what life would be like if some mysterious potion in the courthouse water fountain compelled courts to give roughly the same force to the word “infringed” in the Second Amendment as they do to “abridged” in the First (on press freedom), as common usage would suggest. Either they’d have to gut the protections they now accord to press liberty (and it would become impossible to obtain a printing-press permit in many cities without having a friend at City Hall, just as it’s now impossible to get a gun permit), or else they’d have to start taking the Second Amendment seriously.

As we know, state court actions carried out in the name of common law can come into conflict with vital Constitutional liberties. Here’s a high-profile example -- you’ll probably have no trouble guessing which case I’m describing. A big company is in the business of manufacturing and distributing a product to a nationwide market, though it sells more of the product to consumers near its headquarters. Although this enterprise is respected and admired in many quarters of American society, and although the manufacture, sale and distribution of its product is specifically protected by the Bill of Rights, it is bitterly disliked in some other sectors of society. It gets sued on common-law tort theories in a distant and ideologically hostile jurisdiction, where public opinion is soon whipped up against it. The incensed jury slaps it with a painful judgment, and after failing to prevail on appeal the big company asks the federal government to step in to overturn the result and (as its critics would say) save it from having to pay its victim. The feds agree and proceed to bail the company out, imposing a new decision rule on the state courts to replace the earlier common-law rule which (they explain) had too chilling an effect on the availability of the company’s Constitutionally protected product. The ruling meets with tolerably widespread approval, but a few vehement naysayers -- the editorial board of the New York Times, for instance -- complain that federal pre-emption chips away the legitimate sovereignty of the state courts and insulates corporate malfeasance from accountability.

Just kidding about that last bit. Because of course the case I’m describing is New York Times v. Sullivan (1964), in which the Supreme Court sharply curtailed (though it did not eliminate) publications’ exposure to traditional state libel law, citing the tendency of that law to chill free speech. And naturally the New York Times editorial board, which today inveighs vehemently against every scheme to limit anyone else’s liability, offers no apologies for the success of its own sweeping version of tort reform, the one to which its own name is attached.

I bring all this up not just to tweak the Times (though that is fun) and not because I necessarily disagree with the outcome of Times v. Sullivan. Indeed, it seems to me entirely plausible that the threat of unbounded defamation liability will chill some responsible and truthful criticism of public officials, just as the threat of unbounded liability in medicine chills a lot of socially beneficial work by medical professionals, and just as the threat of unbounded product liability chills the legitimate firearms trade. Commendably sensitive to free speech values, the high court was not afraid to tread fairly hard on the toes of state sovereignty.

But here’s a thought-experiment: suppose it had been Congress that had perceived the clash between libel law and the First Amendment and acted to curtail the state courts’ authority? Suppose the parties in the Sullivan case had for whatever reason not chosen to pursue their controversy to the high court, but that instead supporters of press freedom had prevailed on federal lawmakers to enact a statute exactly embodying the distinctions we now associate with the Times v. Sullivan decision (“public figure”, “actual malice”, etc.), pre-empting state courts from adopting tort theories more favorable to libel plaintiffs. Would this hypothetical law have been somehow illegitimate or constitutionally infirm? It’s hard for me to see why: Congress is sworn to uphold the Bill of Rights and it's supposed to wield the powers necessary and proper to do so. Nor would it have been obliged to wait until a First Amendment train wreck had manifested itself and Northern newspapers had started closing down under the impact of Deep South liability verdicts. By analogy, if it could pre-empt certain suits against newspapers on a First Amendment rationale, it should be able to pre-empt certain suits against gunmakers on a Second Amendment rationale.

Well, the hour grows late, so I’m not going to get a chance to develop some of the other points I’d been working up (such as: if private law has been properly left to the states from the beginning, how do we explain the old federal common law that used to apply in diversity cases, which the New Deal Court extinguished in Erie v. Tompkins?). I’ll just say that I have greatly enjoyed the cordiality of our exchange and the spur it has provided to further thinking on my part. For readers who've liked what they’ve read, I have good news: Michael is soon going to add his voice to the multiparticipant weblog on the front page of Point Of Law, and you can already find me there (as well as at Overlawyered).

Again, many thanks.

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