Right to Carry Guns Headed to Supreme Court

      Gun rights advocates won their most important court victory in the past two-and-a-half years last week [Dec. 11] when the federal appeals court in Chicago struck down Illinois’ virtually absolute ban on carrying concealed weapons in public. But news of the ruling was quickly eclipsed by two other gun-related stories: a shooting episode in an Oregon shopping mall on the same day that left three persons dead and the horrific massacre in Newtown, Conn., that claimed 28 lives [Dec. 14]. Both shooters killed themselves at the scene.
      The shootings produced predictable anger among gun control supporters, low-lying silence from gun rights advocates, and — after two-day wait — a strong call from President Obama for unspecified action to prevent more such tragedies. “We can’t tolerate this anymore,” Obama said in remarks at an interfaith service in Newtown on Sunday night.
      The debates over gun laws included immediate calls to revive the lapsed ban on assault weapons of the type that Adam Lanza used to gun down 20 first-graders at Sandy Hook Elementary School and six school staff members before using a pistol to kill himself. (Lanza killed his mother before going to the school.) Many commentators saw a likely “tipping point” in the long stalemated debate over regulating guns.
      In the meantime, however, the appeals court ruling on the Illinois concealed weapon ban portends a new issue for the Supreme Court to decide. And if the Roberts Court follows its two previous gun rights rulings, its decision could further restrict lawmakers’ ability to curtail the role of guns in day-to-day life in America.
      The ruling by the Seventh U.S. Circuit Court of Appeals builds on the two Supreme Court decisions of the past four years that held the Second Amendment to protect an individual right to possession of firearms for the purpose of self-defense. The court struck down the District of Columbia’s ban on possession of handguns in the first of the rulings, Heller v. District of Columbia (2008), and extended the right to states and localities in a ruling striking down a similar ban in Chicago, McDonald v. City of Chicago (2010).
      Conservatives generally praised and liberals generally criticized the rulings, both by 5-4 votes divided along the justices’ conservative-liberal fault lines. But one improbable critic was Judge Richard Posner, the idiosyncratically conservative jurist and prolific legal commentator. Writing in The New Republic only six weeks after the ruling, Posner called Heller “questionable in both method and result.” The decision, he said, showed that the court, in constitutional cases, “exercises a freewheeling discretion strongly flavored with ideology.”
      Court watchers can rightfully claim surprise, therefore, in seeing Posner as the author of the farthest extension to date of Heller and McDonald. Writing for the majority in the new case, Moore v. Madigan, Posner said the Supreme Court’s decisions recognizing a right to possess handguns inside the home for self-defense also necessarily imply some right to possess some kinds of weapons in public place for the same purpose: self-defense.
      Posner relied in part on textual analysis. The Second Amendment’s right to “keep and bear arms,” he reasoned, “implies a right to carry a loaded gun outside the home.” Looking to English history, he interpreted the 17th century statutes that barred going armed “with dangerous or unusual weapons” as implying permission for others. And in contemporary America, Posner said, the need for self-defense recognized in Heller and McDonald may be more acute on the streets than in the home. “A Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than his apartment on the 35th floor of the Park Tower,” he wrote.
      From logic, Posner — joined by Judge Joel Flaum, like Posner a Reagan appointee and former chief judge on the Seventh Circuit — moved to empiricism. Summarizing the studies, Posner said the net effect that carriage of guns in public has on crime rates in general and murder rates in particular is “uncertain.” He credited in particular studies that show a low rate of arrests or misuse of weapons by gun permit holders. On that basis, Posner said that the empirical literature “fails to establish a pragmatic defense of the Illinois law.” In any event, he said the Supreme Court “made clear in Heller that it wasn’t going to make the right to bear arms depend on casualty counts.”
      In a dissent, Judge Ann Williams, a Clinton appointee, argued that the issue is “closer than the majority makes it out to be.” Williams found no recognized right to carry arms in public at the time the Second Amendment was written or earlier in England. And she saw a contradiction between recognizing a right of public carriage and upholding laws of the sort that the Supreme Court cited in Heller as permissible, such as bans on guns in government buildings or other “sensitive” places. A “patchwork” of laws governing where loaded guns are or are not permitted would negate meaningful self-defense, Williams reasoned. Her conclusion: “[T]he constitutional right to carry ready-to-use firearms in public for self-defense may well not exist.”
      The Seventh Circuit’s ruling clashed with an earlier decision by the Second Circuit that upheld New York’s restrictive law requiring applicants for gun permits to show a “special need” for self-protection (Kachalsky v. County of Westchester, Nov. 27). The issue is headed, inexorably, toward the Supreme Court, the court where Posner saw ideology more than law as driving its pronouncements on the issue.

Ban on Gay Conversion Therapy in Uncharted Territory

      Teenager Gabriel Arana came home from high school one day in fall 1998 to be confronted by his mother, who had discovered an e-mail with his confession to having a crush on a male classmate. “Are you gay?” his mother asked. “I blurted out that I was,” Arana recalled in a first-person account written in April for The American Prospect.
      Arana’s problem-solving mother gathered research on the Internet on “gay conversion therapy.” Along with Gabe’s father, she prevailed on their reluctant son to go meet the leading practitioner in the field: Joseph Nicolosi, a clinical psychologist in Los Angeles and then the president of the National Association for Research and Therapy of Homosexuality (NARTH).
      Arana’s story ends well. He gave therapy a try, but he was not “cured” — only left in despair and doubt that eventually led him to contemplate suicide in college. His chastened father came around. “I’d rather have a gay son than a dead son,” he said when he learned of Gabe’s suicidal thoughts. Today, Gabe is still gay, living in Washington with his husband and working as a writer and web editor at the Prospect.
      Gabe’s story exemplifies the results of gay conversion therapy: few if any documented “cures,” but many patients saddled with anguish and doubt about a part of their identity that the American Psychiatric Association delisted as a mental disorder four decades ago. Instead of helping patients, gay conversion therapy may hurt them, according to the considered judgment of the American Psychological Association and other recognized mental health associations.
      Based on those views and anecdotal evidence from the victims of unsuccessful gay conversion therapies, the California legislature earlier this fall approved a precedent-setting bill to bar licensed mental health professionals from practicing what the law calls “sexual orientation conversion efforts” (SOCE). “These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery,” Gov. Edmund G. Brown Jr. said in signing the bill on Sept. 29.
      The Democratic-controlled legislature approved the bill by substantial margins, but most Republicans opposed it. So did some mental health organizations, concerned that the bill as originally written could have affected mainstream professionals in their treatment of patients with sexuality issues. Those groups shifted to support or neutrality after the bill was rewritten more narrowly.
      In opposing the measure, NARTH and member therapists argued that their practices were being misrepresented and that the alleged harms were unproven. They noted that NARTH now officially discourages so-called “aversion therapies” — including electric shock, induced vomiting, and the like. In his account, Arana did not indicate that Nicolosi used such techniques in treating him.
      The fate of the law, due to go into effect on Jan. 1, is clouded because of separate legal challenges filed in federal court in Sacramento. One suit was brought by individual gay conversion therapists (Welch v. Brown); the other by NARTH, individual therapists, and unnamed parents on behalf of sons now being treated by Nicolosi (Pickup v. Brown). In successive rulings last week [Dec. 3, Dec. 4], one federal judge ruled against the law, while the other upheld it. The issue is headed inevitably to the federal appeals court for California, the Ninth Circuit, and perhaps eventually to the Supreme Court.
      The government has undoubted authority to regulate medical professionals, but the law ventures into uncharted territory because it touches on views — disapproval of homosexuality — that are constitutionally protected under the First Amendment’s provisions on freedom of speech and freedom of religion. '”There's a good deal of uncertainty about how to apply the First Amendment to professional speech to clients and even more uncertainty in the case of minors,'' Eugene Volokh, a First Amendment expert at UCLA Law School, remarked to The New York Times.
      In the first of the court rulings, Judge William Shubb saw the free-speech issue as requiring him to use the highest constitutional standard — strict scrutiny — in reviewing the law. “[I]t is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality,” he wrote. Shubb said he doubted that the law would withstand strict scrutiny because the alleged harms of the therapies were unproven and the law left unlicensed counselors free to practice the therapies anyway.
      In her ruling the next day, Judge Kimberly Mueller viewed the law as regulating conduct, not speech, and therefore subject to the lax “rational basis” standard of constitutional review. Mueller acknowledged that the psychologists’ group’s task force had waffled on the harm issue. “We cannot conclude how likely it is that harm will occur from SOCE,” the task force wrote. But it went on to say there was evidence that efforts to change sexual orientation “may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.” Mueller deferred to the legislature on the issue, saying it “could have had a legitimate reason” to enact the law.
      Whatever the eventual legal ruling, Arana is convinced that Nicolosi and others simply do not understand homosexuality, which Nicolosi to this day attributes to overprotective mothers and underattentive fathers. In an interview for the story, Nicolosi tells Arana that he thinks the therapies at least did no harm. “Like nuclear fallout, the damage came later,” Arana writes, “when I realized my sexual orientation would not change.”

Gerrymandering, Unchecked by Court, Aids GOP

      House Speaker John Boehner wasted no time on election night in celebrating the Republicans’ projected victory in maintaining control of the House of Representatives. With polls not yet closed in the West, Boehner went before network cameras to lay out his view of the results. By renewing the GOP’s majority, Boehner said, “the American people have also made clear that there is no mandate for raising tax rates.”
      Three weeks later, a CNN poll released on Nov. 26 indicated that Boehner misread the election results. More than two-thirds of those surveyed said the current “fiscal cliff ” deadlock should be resolved by a mix of spending cuts and tax increases; fewer than one-third favor the GOP’s preferred solution of spending cuts only.
      More fundamentally, however, Boehner is wrong to claim any Republican mandate at all in the GOP’s diminished 234-201 majority in the House. Actually, more Americans voted for Democratic candidates in the House than for Republicans: about 56 million for Democrats and 55 million for Republicans, according to the latest compilation by the Associated Press. This marks the first time since 1996 that one party won more House seats while winning fewer votes, according to data from the House Clerk’s office reported by Bloomberg’s veteran political analyst Greg Giroux.
      How did Republicans fare so much better in House seats than in vote totals? Giroux and others point to one major factor: partisan gerrymandering in the House districts drawn up by GOP-controlled legislatures after the 2010 census. In state after state, GOP lawmakers did all they could to strengthen Republicans in their districts and either weaken Democrats in theirs or pack Democratic voters into districts where their votes would be to some extent wasted. Democrats followed the same script in states where they controlled the process, such as Illinois and Maryland, but the Republicans had a numerical edge in state capitals as the decennial redistricting process got under way.
      Results from this year’s elections cited by progressive commentators — Ian Millhiser, a senior analyst with the Center for American Progress, and syndicated columnist Harold Meyerson — highlight discrepancies between the partisan divide at the state level and results in House contests. President Obama carried Pennsylvania by more than 5 points, but Republicans won 13 out of 18 House seats. He won Ohio by 2 percentage points, but Republicans captured 12 out of 16 House seats. In Virginia, Obama won by 3 percentage points, but Republicans won eight of 11 House seats. Obama carried Wisconsin by 7 percentage points, but Republicans won five of the eight House seats. Obama eked out a narrow victory in Florida, while Republicans won 17 of 27 House seats.
      By Meyerson’s calculation, Republicans gained a 55-25 edge in the House delegations from those five states that Obama carried. “If the control of these House seats reflected the Democrats' statewide margins in presidential and Senate contests,” Meyerson writes, “the Democrats would likely be at parity or in the majority in the new House.”
      Creative map-drawing is not the only explanation for the discrepancy. In many states, Democratic voters are concentrated in urban districts that produce lopsided majorities for Democratic candidates. In Pennsylvania, for example, Democrats carried the five districts they won by more than 750,000 votes, but Republicans amassed a slight edge in the statewide totals for House races.
      Still, the importance of partisan gerrymandering is undeniable. And the practice persists, as Millhiser notes, because of the Supreme Court’s timidity in confronting it.
      The court in 1986 opened the door, but only slightly, to constitutional challenges to overly partisan congressional or legislative districting. The fractured ruling in Davis v. Bandemer said a districting plan could be thrown out if the evidence showed “continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.”
      Two decades later, the court confronted in a Pennsylvania case a seemingly egregious example of partisan gerrymandering. After the 2000 census, the GOP-controlled legislature did its best to help the party as it redrew House districts to account for the loss of two seats. Democratic incumbents were paired against each other in two districts, while another Democratic incumbent was moved into a Republican-leaning district. As a result, the GOP moved from an 11-10 majority in the state’s House delegation to a lopsided 12-7 advantage.
      Despite the evident partisanship, the court in Veith v. Jubelirer (2004) left the districting scheme in place. Four conservative, Republican-appointed justices led by Antonin Scalia called for eliminating any oversight of gerrymandering at all. Moderate-conservative Anthony M. Kennedy would not go that far; instead, he left the door open to future challenges if “workable standards” emerged. Two years later, however, Kennedy wrote for a 5-4 majority in rejecting Democrats’ challenge to an overtly partisan House redistricting scheme drawn by the GOP-controlled legislature in Texas (League of United Latin American Citizens v. Perry, 2006).
      With little reason to fear Supreme Court scrutiny, the Pennsylvania legislature, still under GOP control, again drew House districts after the 2010 census to advantage Republicans. The party’s 13-5 majority in the state’s congressional delegation defies the close partisan divide among voters. But this and similar distortions in other states will persist as long as the Supreme Court turns a blind eye to the dishonored practice of political gerrymandering.