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Tuesday, July 5, 2011

A Hidden Victory for Gun Rights

The Weapons Effect suffers a blow.

A significant gun-rights victory in the U.S. Supreme Court is being interpreted almost exclusively as a free-speech victory. Actually, Brown v. Entertainment Merchants Association is both, and the mistake is understandable. But it would be a shame to deny encouragement to Second Amendment advocates.

Brown revolved around California’s 2005 ban on the sale or rental of violent video games to anyone under 18.

On June 27 the Supreme Court overturned the law, 7-2, and held (pdf) that “video games qualify for First Amendment protection.” It found further that “government lacks the power to restrict expression because of its message, ideas, subject matter, or content” except in historically unprotected speech such as incitement or obscenity. “[A] legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs….” (Emphasis added.)

Brown is important to gun rights because the state used a key decades-old argument developed by anti-gun zealots in an attempt to expand unprotected speech to include videos and thus create a new category of law based on experts and studies that have been widely called into dispute.

Weapons Effect

The argument is known as the Weapons Effect: Guns cause ordinary people to commit acts of violence and therefore they should be banned from the general population. In their essay “Trigger-Happy: Re-thinking the ‘Weapons Effect’” (pdf), Paul Gallant and Joanne D. Eisen explained:

The weapons effect hypothesis dates back to a 1967 article by psychologists Leonard Berkowitz and Anthony LePage…. [It] summarized the results of their experiment on 100 male undergraduate psychology students at the University of Wisconsin. Berkowitz and LePage proposed that the mere sight of a firearm could trigger aggression from an already angered person because of the learned association between violence and guns.

With violent videos, proponents of the Weapons Effect claim a causal link between images and actual violence that turns otherwise protected speech into incitement or obscenity.

The dramatic expansion of the Weapons Effect argument from guns to images does not merely threaten freedom of speech but also gun rights. Any legal credibility the theory acquires in First Amendment cases is likely to carry weight in Second Amendment ones. Happily, the opposite occurred in Brown. The Supreme Court discounted the argument not merely with reference to free speech but in general, and thus weakened its impact on all cases.

Justice Antonin Scalia’s majority opinion said the state “acknowledges that it cannot show a direct causal link between violent video games and harm to minors. Rather … [it] claims that it need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on competing psychological studies.”

The Court found that the state “relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively.” Scalia noted, “Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” One flaw is the inability of others to replicate the findings of key studies.

Breyer Dissent

Justice Stephen Breyer’s dissenting opinion argued directly against Scalia’s evaluation of research. Breyer noted a 2000 joint statement by several organizations (including the American Academy of Pediatrics) that claimed “over 1000 studies … point overwhelmingly to a causal connection between media violence and aggressive behavior in some children.”

In a Reason commentary last week Jacob Sullum undermined that claim:

When this [joint] statement was released, University of Toronto psychologist Jonathan Freedman had recently completed a review of the scientific literature, and he counted about 200 published studies that tried to measure the impact of TV or film violence on aggression. “Anyone who says ‘over 1,000’ obviously has not looked at the research,” he told me…. Nor was it correct to say that the research “overwhelmingly” confirmed the belief that watching fictional violence leads to violence in real life.

In the continuing battle over using data to justify laws, Brown was victory. But the battle is being fought on the wrong ground. Data should never substitute for basic human rights. In a just legal system the Weapons Effect would be irrelevant to both freedom of speech and gun rights.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.