While lawyers have wasted untold millions of words on the potentially earth-shattering case of D.C. v. Heller, it has largely been an internal discussion.  Sure, there are specific interest groups who cling on every word, but what about the larger world, those people who (gasp) didn’t make Heller their primary focus in life.  Yes, Virginia, such people exist.

One such group is physicians.  While many docs have a certain fascination with law, it tends to be a bit myopic and focus on their enlightened self-interest.  It’s hard to blame them.  They’re busy and malpractice insurance is money out of their pocket.  But they are not necessarily disinterested, as they will be the folks who have to patch the holes in people who appear at the ER with a “GSW” or two.

The  New England Journal of Medicine has finally taken an interest in Heller, and includes a piece by “Mark Tushnet, J.D.” a Harvard lawprof.  This rather short explanation of Heller is fascinating in its effort to reduce a matter of great complexity to its simplest terms.  This is a sort of Heller for Idiots article.

My first reading of Tushnet’s explanation left me scratching my head, wondering how it was possible to cover a case that has been subject to such great scrutiny and yet totally avoid any nuance whatsoever.  This was the New England Journal of Medicine, after all, and it’s readership wasn’t that incapable of understanding the complexity of the issues.  Even the New York Times had produced far superior articles and op-eds.  But then, they have more space then NEJM.

After further contemplation, I realized that Tushnet was in a quandary.  How does he explain the basic issue within the confines of a brief article to a bunch of docs whose interest was likely tested by the second paragraph?  His answer was KISS, apparently.  A dissatisfying answer for me, and likely for him as well, but an answer that made some degree of sense. 

Unfortunately, Tushnet’s efforts fail to impart much of anything in the end, aside from his personal opinion of how the case will turn out.  The vague and imprecise language used to explain the arguments of both sides, ignoring that there are about 32 sides to this particular issue, and then jumping into the level of scrutiny with an explanation that offers no discernible clue what it means because of his purely subjective language, does a disservice to anyone reading that far into the piece.  If the reader has put in enough effort to read to the end, the least the writer can do is offer something meaningful rather than vague gobbledygook.

But the worst part of the article was the unexplained jump to conclude that there is some inherent basis to conclude that an individual right to bear arms exists, but that the right is inherently subject to regulation.

So what can we expect from the Supreme Court? Early in the Bush administration, the Department of Justice issued an extensive legal analysis supporting the gun-rights view of the Second Amendment. It has adhered to that position in the D.C. case but with an important twist. Suppose the Second Amendment does protect an individual right. Still, like all rights, that right can be regulated by the government for good reasons — as the Amendment’s reference to a “well regulated” militia itself suggests. In the First Amendment setting, we let the government regulate speech only if it has extremely good reasons for the regulation.

So next time you’re at a cocktail party and chatting with your friendly local surgeon, and she explains to you that Heller’s no big deal since the government can regulate it as long as it has “good reasons,” you know where that comes from. 

And if you wonder who’s to blame for the fact that physicians’ understanding of the law is so vague, don’t blame the New England Journal of Medicine.  Think Harvard lawprof.