How Will Loughner's Gunshots Echo in the Supreme Court's Quiet Halls?

The Supreme Court's Chamber is a place of cool marble and hushed voices. At the Court's public sessions, polite ushers whisper rebukes to onlookers who so much as slouch in their seats, and talking is forbidden whenever the Justices are in the room.

Yet history shows that noisy events elsewhere have their muted echoes inside that chamber. Often those echoes are hard to trace, and only become comprehensible later.

The shootings in Arizona will almost certainly leave their mark on the Court as they have on most other parts of American culture. We can only hope that mark is a positive one; how the Court responds to the shock will powerfully influence life for the rest of us.

There's a more important question than whether Sarah Palin's website or Glenn Beck's vitriol influenced accused killer Jared Lee Loughner. (In fact, I think it's a defining trait of communications media people that we want to make any big story about ourselves.) The bigger question is: Is it even possible to have a democracy in a society where Jared Loughner can buy a Glock and 90 bullets, carry them around, and use them on a public gathering?

The Court holds one important key to that question.

I had these thoughts yesterday while listening to two cases only a former Civil Procedure teacher could love. The issue in both was: When is it proper for a state court to permit a lawsuit against a foreign company whose product is alleged to have injured an American?

I'll spare you the details. Suffice it to say that the outcome depends on how the Justices interpret a number of old precedents about personal jurisdiction. But the decision will be leavened with a large admixture of concern for the practical effects of a new rule on private companies and American foreign relations.

The argument highlighted one of the important ways judges think about cases. Non-lawyers sometimes imagine judges looking up questions in the big book of rules and then following the rule they find; judges, they say, should interpret the law, not make it. But questions that end up in front of the Supreme Court usually don't have answers even in the really big rulebook. The Justices have to make one up. And one of the questions always is which new rule will work better, will make society happier, safer, more efficient.

Judges who are up front about this approach are called "pragmatic." (This isn't a liberal-conservative thing, one of the most aggressively pragmatic judges in America is conservative icon Richard Posner of the Seventh Circuit.) No one on the current Supreme Court more proudly embodies this approach than Stephen J. Breyer.

Breyer's interjections are a remarkable feature of oral argument. He tends to sprawl forward on the desk and launch into long hypotheticals, sounding remarkably like King Friday XIII on "Mr. Rogers' Neighborhood." No matter whether the case concerns personal jurisdiction or the First Amendment, his question for almost every lawyer in almost every case is, "How will your rule work? Will society as a whole be better off?" The answers to those questions plainly matter to him much more than any question of doctrine or precedent.

Here was today's Breyer question about a proposed rule that a manufacturer who had attended U.S. trade shows would be liable to suit in any state where an independent distributor had sold its goods:

I worry about it, because I'm worried about the woman's cooperative in India, I'm worried about the Chinese development, I'm worried about development everywhere. We have a lot of small businesses. And I would worry. . . about a rule of law that subjects every small business in every developing . . . country to have to be aware of the law in fifty States simply because they agreed to sell to an independent company who is going to sell to America

This is vintage Breyer, Prince of Denmark, allowing "I dare not" to wait upon "I would." Eyes roll in the courtroom when he trots out one of these mega-questions. But what is striking about Breyer is simply that he is both consistent and forthright; the most important factor in his decisions is not precedent, or "original intent," but what will work now.

Other Justices often imply that they are above petty practical concerns.The rhetoric of "what-care-we-for-consequence?" can be pretty dramatic. But usually that rhetoric is overdrawn.

That brings us to Tucson. The current Court has revolutionized the law of gun regulation, beginning with Heller v. District of Columbia in 2008. In that case, the five justice majority concluded (for the first time) that the "original understanding" of the Second Amendment required the federal government to permit (at least some) D.C. citizens to possess handguns in their homes for self-defense. Justice Breyer dissented. He reviewed the extensive statistics suggesting that possession and use of handguns in urban areas leads to more violent deaths, and concluded that "the District's statute properly seeks to further to sort of life-preserving and public-safety interests that the Court has called 'compelling.'"

Writing for the majority, Justice Scalia heaped scorn on Breyer's entire mode of thinking. "The very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon," he wrote. "A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all."

There's nothing like a brisk recital of "follow-originalism-though-the-heavens-fall" to get the judicial bile flowing; but the fact is that all judges are influenced by their views of the future, even those who, like Scalia, claim to look only to the past. If you need evidence of that, look at his impassioned dissent in Boumediene v. Bush. In that case, a different majority reviewed the history of habeas corpus and concluded that Congress could not bar Guantanamo detainees from seeking the writ from federal courts. This writ is of an origin as ancient as any "right to bear arms," and as fundamental to our system as the Second Amendment. But Justice Scalia dissented. "Contrary to my usual practice," he began, "I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today. It will almost certainly cause more Americans to be killed."

So consequences sometimes matter. Regardless of whose overall statistics you believe, gun violence deaths in America in our time dwarf the toll from terrorism and war over the same period. If Court decisions really can "cause more Americans to be killed," then Heller may have already done so.

I'm not saying that Heller caused Loughner's particular rampage, any more than Sarah Palin did. I am saying that Heller (and the subsequent opinion in McDonald v. City of Chicago, which applied the handgun right against the states) has enshrined guns and gun culture even more firmly into the heart of an American society that isn't doing very well with them. Gun-rights advocates--who range from the serious-minded to the genuinely scary--have rightly taken the Court's statement as an affirmation that their worldview lives is a part of American identity; and they are now seeking to entrench and extend their right. We can expect challenges to concealed-weapon licensing requirements, laws excluding guns from public places, bans on assault weapons, and many others. Gun rights advocates hope to write guns more fully into the meaning of America, and they believe this Court will help them do that. In addition, each favorable court decision makes cities and state leaders less wiling to pay the political price, and the litigation costs, of enacting new controls.

My prediction is that, in some way we may never be able to measure, the Supreme Court's future jurisprudence on the Second Amendment will be influenced by what happened in Tucson, and that there will be more "Americans will be killed" and less "balancing is none of judges' business." The truth is that despite their rhetorical differences, pragmatists like Breyer know they must tether their opinions to the past growth of the law; formalists like Scalia really do sometimes worry if their decisions mean people will die.

I'm not predicting that Heller or McDonald will be overturned. But there will be a number of chances in the next few years to clarify how "fundamental" the right to bear arms is, and the Court may be more circumspect in its language as a result of events like the Tucson shooting.

I'm not saying, either, that the Court should "change" the Second Amendment if the Justices think it has bad consequences; I am saying that in every new legal question, every new claim for definition of a constitutional right, there is and must be a heavy dose of practical analysis as well as historical learning and textual parsing. There were no Glocks and no 33-round magazines in 1789; there were few crowded cities, no drug problems, and no massive firearms industry pumping out new weapons. Applying the "right to bear arms" to these new weapons and new situations really does require careful balancing.

This may be wishful thinking. My salient intellectual flaw is optimism; I like to think that judges, even those I disagree with, are in fact judges, who recognize that law must be applied to facts. It may be that this Court includes ideologues who, like the Bourbons of France, have learned nothing and forgotten nothing. But there may not be five of them.

I also like to think that constitutional law can recognize the special place of guns in American history while also making it less likely that judges, legislators, and nine-year-old girls will be gunned down if they go to the supermarket. Every extension of gun rights by the Court--and every thump of the formalist tub about the fundamental right to a Speedloader--convinces people more fully that it's normal and sustainable to live a society where the strange guy in the taxi is carrying a Glock and 90 bullets.

The evidence is pretty clear that it is not.

Lack of sane, workable restrictions on what guns can be owned and where they can be carried "will almost certainly cause more Americans to be killed"--far more every year than terrorists have ever come close to killing. And that's not all; we are at risk of crippling our ability to live in peace as one self-governing society. A judge needn't be the Prince of Denmark to hesitate before contributing to that.