In a fascinating new article, Harm-Avoider Constitutionalism, forthcoming in the California Law Review, Professor Aaron Tang outlines a new type of constitutional methodology with (implicit) support in legal doctrine: “a rich tradition of cases in which the Supreme Court has resolved difficult constitutional disputes by identifying and ruling against the best harm avoider.” Tang does not suggest that this methodology is the dominant framework for resolving constitutional questions or even that it displaces other interpretive modes like originalism, common-law constitutionalism, or political process theories in most cases. Instead, he argues, the Court often employs harm-avoidance principles as a second-order decisionmaking procedure when those first-level theories run out. He argues that the Court should acknowledge its use of this methodology openly. And he contends that use of the methodology serves four values: (1) reducing the harms of erroneous Supreme Court decisions, (2) mitigating public perceptions of the Court as nothing more than nakedly partisan, (3) bolstering the Court’s legitimacy by providing losing parties different ways to respond to defeat, and (4) creating incentives for a better constitutional discourse.
Tang’s article is thought-provoking, and I found his descriptive account of past practice persuasive. In his view, this framework helps to explain why some even contentious decisions like the Court’s foray into the right to die in Cruzan v. Director, Missouri Department of Health did not create massive public backlash. The Court found in favor of the state in that case because the groups represented by the plaintiff (those who wanted life-saving medical care withdrawn in certain circumstances) had an easier opportunity to avoid the harm of an adverse ruling: they could sign advance directives expressing their wishes and the like. Tang discusses the methodology in other cases concerning individual rights (e.g., abortion) as well as in those cases about structural concerns (e.g., separation of powers and federalism cases). In some not insignificant number of cases, the Court pins liability on the group best ability to mitigate harm, whether through public avoidance or private avoidance. As he succinctly describes the framework:
Under harm-avoider constitutionalism, the Supreme Court decides hard constitutional cases against the group that can best avoid the harm it would suffer from an adverse decision using public and private avoidance techniques.
Reading Tang’s article got me thinking about how the approach might work in cases arising under the Second Amendment. To be clear, it’s not obvious to me that Tang would recognize its applicability in this context – he notes that it won’t be relevant in every case. And it is fairly obvious to me that many of the judges and justices most solicitous of the Second Amendment would reject its application here. After all, for Tang, harm-avoider constitutionalism typically takes over when the traditional tools of interpretation provide no clear guidance on constitutional meaning: “it is precisely the difficulty and divisiveness of these cases that leads to the theory’s suggestion that courts should minimize harms instead of rendering some best guess as to the Constitution’s meaning.” The majority in Heller saw no uncertainty in the Second Amendment, and would have no use for such a theory. But for those who think the text, history, original understanding, and even implications from a living constitution model leave the question of the Second Amendment unclear, what would a harm-avoider approach teach?
First, consider the descriptions of the respective harms in Heller. Tang argues (sensibly, in my view) that courts generally ought to take groups’ descriptions of the harms they confront from an adverse ruling at face value. In Heller, the harm to the residents represented by the plaintiffs was the inability to use their preferred means of self-defense in the home in case the need arose. The harm to the District (and other residents) from legalized handgun possession was the increased possibility for homicide, suicide, and accidental shootings.
Second, consider the possible mitigation strategies. The plaintiffs challenging the law had both public and private avoidance techniques available. As a public avoidance measure, they could have lobbied for a change in the law. This may in fact have been successful, as a majority of members of Congress signed a brief in support of their position. Given its formal legal authority over the District, Congress likely could have blocked or overturned the District rule, rather than filing a brief against it. (I should add the caveat that I’m no expert on D.C.’s Home Rule Act, so I may be missing something that foreclosed such a path here.) Tang provides an example of this kind of public-avoidance technique—the political power to push for a change in the law—influencing the harm-avoidance calculus in Minnesota v. Clover Leaf Creamery. There, shortly after losing a dormant commerce clause challenge to a law banning the sale of milk in plastic cartons, “the in-state dairy industry prevailed upon the state legislature to repeal its plastic container ban and replace it with a far more limited intervention.”
What about private avoidance techniques? One might suggest that the plaintiffs could have just used different weapons in self-defense, but that wouldn’t mitigate their self-identified harm as not being able to use their preferred weapon. Short of that, those who wanted home handgun possession could have moved to a friendlier jurisdiction across the Potomac. “Of course,” as Tang acknowledges, “foot voting will be a less realistic avoidance strategy in some constitutional disputes than others, since some losing groups may lack sufficient means to move.”
What about the District’s harm-avoidance techniques? As a matter of public avoidance, the District could have amended its law. Lawmakers could have invoked “less harmful legislative means” to still “attain their desired ends.” Instead of a near-ban on handguns, the city council could have enacted licensing or permitting requirements that include background checks or training requirements. It could have allowed home possession but barred individuals from carrying their guns in public or sharply curtailed the right to public carry. As it turns out, this is in fact what much of the post-Heller legislative activity in the District looked like, as the saga of Heller II, Heller III, Wrenn, and other cases tells. As a private avoidance measure, people concerned with the impact of increased gun violence could also have moved.
Even after this exercise, it is not entirely clear to me which path of avoidance is easier. A majority of federal lawmakers signed onto an amicus brief to support striking down a law they probably could have changed themselves (with caveats again). If an available route, that seems fairly easy. On the other hand, the fact that other localities that care about gun violence did not ban home handgun possession may show that it would have been easy for the District to craft a narrower law that served its desired ends. (I should be clear here that Justice Breyer, dissenting in Heller, characterized the harm differently and thus saw no narrower option: “The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District.”) Nor is it clear whether the ability to move would be easier for those wanting guns or those wanting to avoid them. Both groups no doubt include some for whom that sort of mobility is beyond their means or desires.
So what can we say then about harm avoidance in the Second Amendment? It’s complicated, and I am not so sure the methodology would help much in resolving disputes about whether the right protects gun use for private purposes, as Heller held. But it may be a useful tool in cases testing the limits of regulations in certain places, or on certain weapons, or to certain permitting or licensing requirements. Yet, as Tang notes, even if the harm-avoidance calculus leaves us with no clear answer, we’re just back to the start: “resolve these cases using [a court’s] best judgment with respect to the traditional, first-order tools of interpretation—arguments based on the Constitution’s text and original meaning, history, structure, precedent, and so on.” In these cases, “the Court finds itself in no worse a position than it would have been otherwise.”