26 Jun Justice Breyer Rejects Pragmatic Comparativism in Heller
No surprise, the Supreme Court in the Second Amendment case of D.C. v. Heller refrains from any discussion of contemporary foreign or international laws or practices. The Court, per Justice Scalia, does discuss historical comparativism at some length (pp. 19-22), and Justice Stevens in dissent challenges this historical reading (pp. 27-31).
But the really interesting part of Heller regarding comparativism comes from Justice Breyer’s dissent. He examines one amicus brief‘s pragmatic arguments that look to comparative experiences to suggest tighter gun control laws lead to more murders. (See my post on those amicus briefs here). As this does not align with his desired result, he finds a rationale for rejecting these comparative experiences:
[R]espondent’s amici point to a statistical analysis that regresses murder rates against the presence or absence of strict gun laws in 20 European nations. That analysis concludes that strict gun laws are correlated with more murders, not fewer….
These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it.What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.
What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws-a question that respondent and his amici do not convincingly answer. (pp. 21-24).
I find Justice Breyer’s rejection of pragmatic comparativism fascinating. Of all the justices that favor comparativism, he is most notable for espousing the pragmatic benefits of looking abroad. But now, when an amicus brief does just that, he finds a basis for rejecting it. He essentially is trying to argue that the experiences in other nations do not support a causal relation between higher murder rates and strict gun control laws. But he assiduously avoids any discussion of a possible correlation based on the empirical evidence from other countries. As you would expect, the amicus brief was arguing about correlations, not causation.
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