I think I’ve figured out how to reconcile the votes of Justices Ginsburg, Breyer, and Sotomayor in Brown v. Plata and McDonald v. Chicago.

In McDonald v. Chicago, and Nordyke v. King (recently decided in the 9th Circuit), one of the factors to consider in judging the constitutionality of a law restricting Second Amendment rights is social cost. In other words, if a society is dangerous, then Second Amendment rights can be restricted.

Let’s walk through this. The Court today orders 46,000 dangerous prisoners be released into society. Let’s assume this results in an increase in violent crimes, as Justice Alito suggests (I think his causation/correlation analysis is flawed, but let’s put that aside for now). Society becomes more danger, with all these violent criminals running amok. Prisons, unable to house new prisoners, decrease the feasible number of prosecutions. Statistics are generated that show a steep increase in crime. Based on these findings, the state enacts new restrictive gun control laws to reduce violence.

So, the next time a Second Amendment reaches a court in California, or elsewhere, the Court relies on these new statistics to show that society is dangerous, and the restriction on the right to keep and bear arms is upheld. Meanwhile, law abiding citizens who seek to defend themselves from this gaggle of convicts who are now free will not be able to. Irony much?

In this sense, Brown v. Plata creates an interesting liberty/statism feedback loop. Increasing liberty for the prisoners–they get out–may ultimately decrease the liberty of non-dangerous people–who will be denied Second Amendment rights. Favor “liberal” rights–prisoner rights–and punish classical “liberal” rights–the right to keep and bear arms.

Very crafty active liberty.

This is why I seek to bifurcate constitutional liberty jurisprudence based on the actor’s propensity for violence. Here we see, perhaps, that those who pose a danger to others receive a presumption of liberty, and those who pose no threat to others, receive a mere presumption of constitutionality.

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