A leading scholar sets his sights on the gun issue
Post Date: January 19, 2007
Professor Mark Tushnet
Professor Mark Tushnet, a constitutional law scholar and the leading American presence in the field of comparative constitutional law, joined the faculty last year. He is the co-author of seven casebooks, including the most widely used casebook on constitutional law, and 14 books, including a two-volume biography of Thurgood Marshall and "A Court Divided: The Rehnquist Court and the Future of Constitutional Law." His next book, forthcoming in May from Oxford University Press, will explore the Second Amendment and gun control policies in contemporary society.
How have the additions of Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr. changed the Supreme Court?
It's too soon to tell. They were appointed when there was unified government. In the conclusion of "A Court Divided," I talked about the possibility of the Court collaborating with a unified Republican government to very dramatically transform existing constitutional law, to do things that the majority in the political branches would do, except that they were facing political constraints. The late Rehnquist Court had that possibility although it hadn't seized it yet. Roberts might have thought he might be walking into the same role. So the election [last] year in some ways will force an unconscious reorientation of the new justices who were appointed, who might have been expecting to be playing one role and are turning out to have to play a different role. When the government becomes divided again, the Court does have opportunities. It can do things and get away with them because of the division. But it will also be more controversial, taking sides in a way it wouldn't be doing in a unified government.
Is Chief Justice Roberts opening up the Court more to the public, with the release of same-day transcripts and tapes of arguments?
I would say we're observing a general transformation of which he happens to be the current public face. The Court is participating in a general government movement toward transparency, and that movement is in some ways irresistible. The Court resisted for a long time, but it can't hold out forever, and these same-day tape releases of selected transcripts are just an example. The next step will be same-day releases of all arguments because technologically it's nothing, and if you release the important ones, why on earth wouldn't you release the boring ones? And the final step is live audio broadcast, which I think will come within a decade. Cameras will be a longer time, but live audio broadcasts are coming quite soon.
How will the Democratic takeover of Congress affect tensions between Congress and the courts?
The tension is likely to increase. There is likely to be a conservative court doing things Democratic legislators don't like. But Democrats have become so committed to the idea that the courts are the place to solve constitutional problems that the attacks--the calls for impeachment, the statutes that say, cite foreign materials subject to impeachment--those things are not going to happen. The Democrats are going to have to figure out a way to respond, how to deal with their deep commitment to judicial supremacy in a world where they may be facing a hostile Supreme Court rather than a favorable one. They'll wait until 2008, hope they win the White House and get two or three liberal appointees, and then they can love the Court again.
Did you learn anything new about the Second Amendment while researching your latest book?
I did, actually. I already understood that the pro-gun rights position had more going for it than most liberal academic commentators thought it had. That turns out to be right, though the pro-gun rights position has less going for it than most passionate advocates say. It's a close case. Neither side wants to say it's a close case, but it's a close case with the balance slightly in favor of the pro-gun rights position.
What did you conclude about the efficacy of gun control?
I learned that there's no gun-related policy, either gun control or pro-gun rights policy, that has a plausible chance of being adopted and having a significant effect on gun violence or crime. You'd have to have essentially complete registration, confiscation in urban areas and very stringent controls on gun ownership. It would be constitutionally defensible, but it has no chance of being adopted. On the other side, mandatory gun ownership is the only thing that could have a significant effect on gun violence and crime. It would have a deterrent effect if everyone went around carrying guns. People wouldn't pull them out because they'd be afraid the target would be a better shot. But that's not a plausible idea.
How do you identify yourself as a liberal and yet question liberal orthodoxy such as judicial supremacy and gun control?
My daughters say my gravestone is going to say, "It's complicated." That's my position pretty much across the board. People with substantial political commitments like mine or contrary to mine tend to think that the constitutional issues associated with their positions are obviously right and straightforward and simple. I think that most issues are complicated, and I take my academic task to be to demonstrate the complexity of issues that people with my political sympathies are committed to.