SHOOTING BLANKS: RONALD DWORKIN AND CALIFORNIA'S UNSCRUPULOUS HANDGUN POLICY.

• Author: Smith, Patrick

1. INTRODUCTION

   "[T]he right of the people to keep and bear arms shall not be infringed." (2) These words have been debated from the time they were first written. Even today, there are different interpretations of the words of the Second Amendment. Up until the twenty-first century, many of the issues regarding the "right to bear arms" had not been considered by the United States Supreme Court. (3) Courts and legislatures continue to interpret this highly controversial right differently across the United States. Some states give free rein to their citizens as to the guns they can own or possess. Others tightly restrict the right to keep and bear arms. California is one of the states that has highly restrictive handgun laws. Giffords Law Center (4) has given California an A-grade on its Gun Law Scorecard for years because of the state's stringent gun control measures. (5) The National Rifle Association Institute for Legislative Action puts California gun laws in its "rights restricted" category, to which only nine other states belong/' The opinions of these two organizations do more than show a divide in public discourse-they prove a consensus. The organizations show that those who are for and against strict gun laws can agree on at least one thing: California takes the strongest stance in the United States in favor of gun regulation.

   Because California has such a strong stance on gun regulation, it seems logical to analyze whether it is possible to reconcile the state's laws against the right to bear arms guaranteed by the Second Amendment. There are several jurisprudential approaches that are appropriate in an analysis of this nature. One possible approach analyzes only the history of gun rights. Another analysis looks strictly at the needs of the political community as a whole and only takes into account whether the state has adequate power to implement the kind of laws to meet those needs. An interesting strategy would be to analyze these laws by using an approach outside of these two processes to reach a conclusion on the validity of the laws. The jurisprudential philosophy that resembles this type of strategy is the approach of Ronald Dworkin.

   Dworkin was one of the most influential legal scholars of the twentieth century. His approach to jurisprudence is considered an alternative to legal positivism. (7) While Dorkin sometimes referred to his approach as a natural law theory, some have categorized it as a third option sitting outside of both legal positivism and natural law theory. (8) The idea that his approach sits outside of both of these major schools of jurisprudence leads to the conclusion that, by evaluating California gun laws through his perspective, the analysis will not strictly consist of a historical treatise of gun rights or a paper on the social or economic theory of gun crime. A Dworkinian analysis will not only allow for a historical evaluation of the right to bear arms but will also consider future effects of certain legislative decisions. Ultimately, by using several of Dworkin's jurisprudential approaches, it is possible to make an argument against the severity of California's concealed carry gun laws.

   The key issue throughout this article is whether California's handgun statutes can meet Dworkin's standard of integrity. More specifically, there will be an attempt to determine whether or not the statutes fit and meet the standard of moral coherence. This article contains three sections. The first section consists of an indepth look at Dworkin's jurisprudence, specifically focusing on his ideas of integrity and constructive interpretation. It also explains what Dworkin calls principle and policy, and checkerboard statutes. The second section highlights the relevant California handgun carry laws. The third section contains an analysis that will (1) seek to establish concealed carry as a principle; (2) explain how, in this situation, the principle of concealed carry trumps the policy of public safety; and (3) show how the relevant California statute is a checkerboard statute and how that means the law ultimately lacks integrity.

2. DWORKIN'S JURISPRUDENCE

   Dworkin's theory of law as integrity does not produce objectively right answers. (9) It would be a misunderstanding to think that at the end of this analysis there will be one right answer concerning California's concealed carry laws. Interestingly enough, the answer we arrive at will be "right" because, as participants in the legal practice, we will experience it as being right. (10) It is helpful to see Dworkin's work as establishing a third alternative to legal positivism and natural law theory: an interpretive theory of law." Looking at Dworkin's approach in this manner will allow for an analysis that will incorporate both a historical way of establishing a right and a forward looking prediction of what the outcome of a certain decision might be.

   First, Dworkin does not view law and morality as two separate systems. (12) He claims that, since law and morality are included in the same system, there should never be an issue that is decided without using either an existing rule or principle. (13) Two major tenets in Dworkin's earlier writings are: (1) law contains principles as well as rules, and (2) for all legal questions there are unique right answers. (14) To understand these two major tenets one must examine Dworkin's approaches as layers. The first layer explains what he means by principle and how it is measured against rival policy arguments. The next layer consists of looking into his ideas of fit and morality and how that contributes to his right answer thesis. The third layer contains a lengthy look into what Dworkin means when he writes about integrity and how that contributes to the idea of checkerboard statutes.

   1. Policy and Principle

      Principle and policy, according to Dworkin, are the major grounds of political justification. (15) First, there is a need to explain what Dworkin means when he refers to a policy. Arguments of policy justify a political decision by showing that the decision respects or secures some collective goal of the community as a whole. (16) A goal is a non-individual political aim that does not call for any particular opportunity, resource, or liberty for particular individuals. (17) Collective goals encourage trade-offs of benefits and burdens within a community in order to produce some overall benefit for the community as a whole. (18) The community may pursue different goals at the same time, and it may compromise one goal for the sake of another. (19) Policy decisions must be made through the operation of some political process designed to produce an accurate expression of the different interests that should be taken into account. (20)

      Next, it is necessary to discuss what Dworkin calls principle. Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right. (21) An argument of principle does not often rest on assumptions about the nature and intensity of the different demands and concerns distributed throughout the community. (22) Legal principles are moral propositions that are stated in, or implied by, past official acts. (23) There is always the sense of moral standards qualifying as already present in the law, even before the standards are articulated or decisions based upon them are announced. (24) An example of this is that a rule should not be applied as written if it would lead to an absurd result. (25) It is important to note that sometimes two independent principles can come into conflict. (26) In such cases we might give weight to each of those principles in a certain relation. (27)

      When discussing principle, it is also important to appreciate the types of rights Dworkin recognizes and how they impact each other. These rights are abstract rights and concrete rights. An abstract right is a general political aim the statement of which does not indicate how that general aim is to be weighed or compromised in similar circumstances against other political aims. (28) Concrete rights are political aims that are more precisely defined so as to express more definitely the weight they have against other political aims on particular occasions. (29) Concrete rights must have two other characteristics: (1) They must be institutional rather than background rights; and (2) they must be legal rather than some other form of institutional rights. (30) Abstract rights provide arguments for concrete rights, but the claim of a concrete right is more definitive than any claim of abstract right that supports it. (31)

      Finally, there is a need to explain how Dworkin feels that principles and policies should interact. According to Dworkin, "if rights are to be taken seriously, they must have a threshold weight against community goals." (32) Different arguments of principle and policy can often be made in support of the same political decision. (33) No political right has such little weight that it may be justifiably overridden simply because the consequence of doing so will be marginally better than those of observing it. (34) Rights cannot be trumped by a competing community goal. (35) An argument of principle fixes on some interest presented by the proponent of the right it describes, an interest allegedly of such a character as to make irrelevant the fine discriminations of any arguments of policy that might oppose it. (36)

   2. Fit and Morality

      According to Dworkin, "legal claims are interpretive judgments and therefore combine backward and forward-looking elements; they interpret contemporary legal practice as an unfolding narrative." (37) In making the law, or an area of the law, the best it can be, the criteria Dworkin mentioned most often are fit and moral value. (38) A theory of what the law is must adequately fit relevant past government actions, such as legislative enactments and judicial decisions, while making the law...