Do Courts Change Politics? Heller and the Limits of Policy Feedback Effects

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 69 No. 5

Do Courts Change Politics? Heller and the Limits of Policy Feedback Effects

Kristin A. Goss

Matthew J. Lacombe

DO COURTS CHANGE POLITICS? HELLERAND THE LIMITS OF POLICY FEEDBACK EFFECTS

Kristin A. Goss^* Matthew J. Lacombe^**

Abstract

District of Columbia v. Heller was a landmark ruling in which the Supreme Court established that citizens have a constitutional right to possess firearms in their homes for self-protection. The 5-4 decision—along with the Court's subsequent ruling in McDonald v. Chicago—upended the prevailing wisdom that the Second Amendment protected the right of the states to assemble militias for collective security. In this Article, we examine the effects of these rulings on gun regulation in the United States and, more to the point, on gun politics. We situate our analysis within several related theoretical frameworks, most notably those focused on policy feedback and on the role of courts in producing social change. We argue that the effects of Heller (together with the parallel decision in McDonald,) have been rather limited. We examine the rulings' first-order effects on pre-existing gun control laws, as well as second-order effects on a number of related outcomes. We find that Heller and its progeny have had generally small or non-existent impacts on gun policy, on the organizational capacities and political strategies of pro-gun and pro-regulation groups, and on public attitudes toward gun regulation. Our findings support a constrained view of the Court's ability to drive social and political change. We conclude, however, by noting that recent developments—particularly hints that some Supreme Court Justices are eager to develop Second Amendment jurisprudence—have the potential to alter these conclusions.

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Introduction.............................................................................................883

I. The (Hollow?) Hope: Gun Rights, Feedback Effects on Politics, and the Constrained Court........................................885
II. What Did Heller Do? The Ruling's Direct Effects on Law and Policy.......................................................................................889
III. Policy Feedback & Policy Learning: Effects on Lawmakers .....................................................................................892

A. State Handgun Ban Proposals.................................................. 893
B. Junk Gun Bans.......................................................................... 895
C. Pro-Gun Policies ...................................................................... 896

IV. Policy Feedback: Effects on Political Organizations..........898

A. Policy Agendas of Gun Regulation Groups: Legislation.......... 899
B. Political Strategies of Pro-Gun Groups: Litigation ................. 903
C. Frameworks of Gun Rights Discourse...................................... 906
D. Organizational Capacity of Gun-Related Organizations ......... 909

V. Courts, Change, and a Caveat ...................................................915

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Introduction

On June 26, 2008, the U.S. Supreme Court handed down its landmark ruling in District of Columbia v. Heller.¹ The ruling struck down several of the city's strict gun laws, including an effective ban on possession of functional handguns.² For the first time, the Court ruled that citizens have a constitutional right to possess such a firearm in the home for self-protection.³ The Court majority cautioned that the Second Amendment, like other constitutional rights, is not unlimited.⁴ But the 5-4 decision upended the prevailing wisdom that the Second Amendment only protected the right of the states to assemble militias for collective security.⁵ In doing so, the ruling endorsed a perspective on guns and citizenship that legal scholars (including some liberals) and pro-gun advocates had been developing for many years.⁶

In the contentious world of gun politics, Heller was a momentous ruling. Pundits on all sides of the gun debate rushed to weigh in. Wayne LaPierre, Chief Executive of the National Rifle Association (NRA), called the decision "a great moment in American history."⁷ Ironically, the nation's largest gun rights organization had declined to bring the lawsuit that resulted in the Heller decision; the organization's reluctance stemmed in part from a lack of certainty that it would prevail.⁸ Aside from the strategic desire to avoid a legal loss, however, the NRA may also have had a political desire to avoid a win in front of the country's highest court.⁹ After all, the organization's ability to mobilize its members into politics had relied on claims that gun rights were threatened with extinction.¹⁰ Such appeals may have lost credibility if the Court chose to protect an individual constitutional right to own guns.¹¹ Nevertheless, even

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though it had not brought the lawsuit, the NRA was publicly happy to embrace the Heller ruling.¹²

Less pleased were political leaders favoring stricter gun laws. For example, Chicago Mayor Richard Daley called Heller "a very frightening decision."¹³ In 1982, chicago had instituted a "freeze" on civilian handgun possession, meaning that people wishing to acquire and possess a handgun thereafter were effectively barred from doing so. in addition, several chicago suburbs had banned handguns. Daley's comment turned out to be prescient. Two years later, using Heller as precedent, an equally divided Supreme Court ruled these policies unconstitutional in the case of McDonald v. City of Chicago.¹⁴

While the NRA rejoiced, and Mayor Daley feared the worst, longtime gun control advocacy groups glimpsed a silver lining amid the clouds.¹⁵ To their eye, the court had signaled that virtually all common gun restrictions would still pass constitutional muster.¹⁶ What is more, by reinforcing that the Constitution protected gun owners, the Court might have deflated the gun rights lobby's argument that any new gun law could result in firearms confiscation and open the door to tyranny.¹⁷ By undermining the "slippery slope" narrative, some gun control advocates thought, the Court might have created space for bipartisan compromise on firearms policy.¹⁸ As the chief of the Brady Campaign to Prevent Gun Violence put it, "[t]he Court . . . rejected the absolutist meaning of the 2nd Amendment. [Gun restrictions] can now be debated on their merits without distractions of fear or ideology."¹⁹

Each of these perspectives—from a gun rights lobbyist, an anti-gun politician, and a gun control organization—serves as a hypothesis for the question at hand: What did Heller do? The array of viewpoints described above highlights both the importance of understanding the ruling's downstream effects

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and the lack of obvious expectations about what these effects might be. In this Article, we assemble a wide range of empirical evidence to examine the ruling's impact on firearm laws and on elite- and mass-level gun politics. We situate our analysis within a number of related theoretical frameworks, most notably those focused on policy feedback and on the courts as engines of political change.

We argue that the effects of Heller (together with the parallel decision in McDonald) have, in general, been rather limited. We examine the ruling's first-order effects on preexisting gun control laws, as well as its second-order effects on a number of related outcomes. We find that the ruling has had generally small or nonexistent impacts on gun policy, legislative agendas, the organizational capacities and political strategies of pro-gun and pro-regulation groups, and public attitudes about gun regulation. Our findings support a constrained view of the Court's ability to drive social and political change. We conclude, however, by noting that recent developments have the potential to alter our conclusions moving forward.

I. The (Hollow?) Hope: Gun Rights, Feedback Effects on Politics, and the Constrained Court

In the context of constitutional jurisprudence, court rulings are tantamount to statements of public policy. As such, they might be expected to have what we will call first-order and second-order effects on policymaking and politics. First-order effects can be thought of as the direct and foreseeable impacts of a ruling on public policy. They might include the repeal or revision of unconstitutional statutes or regulations; state imposition of incentives or costs to induce compliance with the court ruling; and changes in social or economic behavior in response to the ruling.²⁰ These are the conventional ways that court rulings are understood to have influence—as striking down (or upholding) laws and reordering (or not) state and social practices associated with these laws.²¹

But court rulings as statements of public policy might have second-order effects, as well—namely, on the political dynamics surrounding the issue at hand.²² Such impacts are known as "policy feedback" effects.²³ Feedback theory

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holds that policies may affect citizens' political capacity, their stake in defending or challenging the state, and their sense of civic inclusion or status.²⁴ Policies may also operate through political organizations, shaping their capacity to mediate between the state and the citizenry.²⁵ For example, policies may support organizations in their roles as incubators of civic skills, as fora for civic inclusion, as arenas for political recruitment, as amplifiers of political influence, and as mobilizers of collective action. Policies may work on organizations to frustrate these goals, as well.²⁶ Finally, policies may have feedback effects on political elites, who learn from public policy and make decisions based on this learning.²⁷

While most policy feedback work emphasizes positive cycles, whereby policy shapes subsequent political attitudes and behaviors, feedback effects do not occur in all cases and are often contingent on particular conditions being met.²⁸ In some cases, policies...