For some time, I have been comparing and contrasting the Supreme Court’s treatment of the Second Amendment with other constitutional rights. In my mind, the Second Amendment is treated as a (no pun intended) a second-class right. I have viewed this through the lens of the Second Amendment as “the most dangerous right”–because of the apparent dangerousness of guns, 2nd amendment rights should be treated with more caution. I have also considered more broadly whether rights were equal, or as I called it, the “equality of rights” (see here and here).

In this post–which is the basis for an article I am working on–I would like to focus on how the Supreme Court treats other rights that have certain social costs–or in economics lingo, negative externalities. The title of this post, of course, is a play on Coase’s classic article The Problem of Social Cost. This article provides an explanation of how the Court’s deal with the exercise of private rights that create certain social costs, and how this should affect our interpretation of the Second Amendment.

Liberty and Externalities

All rights, by definition, create externalities–both positive and negative on other actors, such as government, other people, the environment, etc. Despite these harms, we aim to protect these cherished constitutional values. In the words of Justice Marshall, dissenting in United States. v. Salerno:

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Honoring the presumption of innocence is often difficult; sometimes we must pay substantial socialcosts as a result of our commitment to the values we espouse.

Justice Alito alluded to this point in McDonald v. Chicago:

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (“The exclusionary rule generates ‘substantial socialcosts,’ United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”);Miranda v. Arizona, 384 U.S. 436, 517, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting); id.,at 542, 86 S.Ct. 1602 (White, J., dissenting) (objecting that the Court’s rule “[i]n some unknown number of cases … will return a killer, a rapist or other criminal to the streets … to repeat his crime”); Mapp, 367 U.S., at 659, 81 S.Ct. 1684. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.

The only way to eliminate these externalities would be to impose a totalitarian system of government where people cannot exercise any rights, and all actions would be controlled and approved by the state. (Externalities, I suppose are subjective, and if the state can set the terms of all actions, externalities could effectively be eliminated). Indeed, any attempts to limit liberty and externalities evinces shades of statism. Our Constitution, which is framed as a charter of negative liberties (e.g., Congress shall make no law…), aims to minimizes such advances towards serfdom by limiting what the state can do, and accordingly maximizing what the people can do. However, liberty is not unlimited. The Constitution can and does countenance possible harms that may result from the exercise of rights, and permits certain abridgment of rights.  Liberty and externalities can mutually co-exist.

The Social Costs of the First Amendment and the Freedom of Speech

The right of free speech creates positive externalities in that the free speech promotes the marketplace of ideas, spreads knowledge, allows for a critical assessment of government, etc. It also creates negative externalities in that someone will invariably be offended, annoyed, burdened, or ticked off by a certain type of speech. The level of negative externalities ranges from the minimal (an annoyed commenter on my blog) to epic (the mourning father in Snyder v. Phelps). Notwithstanding these negative externalities, the First Amendment, and the Courts, protects the right of free speech. Justice Black’s position that the First Amendment’s admonition that “Congress shall make no law” forbids any limitations on free speech was never accepted. The Constitution only ceases to protect speech when the negative externalities reach a certain threshold–think fighting words, obscenity, or speech that incites immediate violence (or more precisely these forms of communication no longer constitute the “freedom of speech” and the government can pass a law abridging it).

In Virginia v. Hicks, the Supreme Court had this to say about the social costs of the overbreadth doctrine:

For there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do not swallow the social benefits of declaring a law “overbroad,” we have insisted that a law’s application to protected speech *120 be “substantial,” not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, ibid., before applying the “strong medicine” of overbreadth invalidation, id., at 613, 93 S.Ct. 2908.

The Social Costs of the Fourth Amendment, the Exclusionary Rule, and the Good Faith Exception

Under the 4th amendment, we have the right to be free from unreasonable searches and seizures–and the Supreme Court has read this clause to impose a presumptive warrant requirement for all searches. This right has positive externalities, in that it promotes privacy, security in one’s persons and effects, deters police misconduct, and prevents an over-intrusive government butting into our lives without good reason and an independent judicial check. The exclusionary rule also has negative externalities–namely that criminals who should be punished go free because of “technicalities.”

In his dissent in Olmstead v. United States, Justice Holmes eloquently expresses this tension:

Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in the future it will pay for the fruits. We have to chose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

In 1976, Chief Justice Burger’s concurring opinion in Stone v. Powell presaged future hostility to the exclusionary rule:

The Court’s opinion today eloquently reflects something of the dismal social costs occasioned by the rule. Ante, at 3049-3050. As Mr. Justice WHITE correctly observes today in his dissent, the exclusionary rule constitutes a “senseless obstacle to arriving at the truth in many criminal trials.” Post, at 3072. He also suggests that the rule be substantially modified “so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good-faith belief that his conduct comported with existing*502 law and having reasonable grounds for this belief.” Ibid.

This position gained popularity as the Burger Court paired back the excesses of the Warren Court with respect to certain criminal procedure rights. In the 1977 5-4 opinion of Brewer v. Williams, Chief Justice Burger dissented, lamenting the social costs of the exclusionary rule, noting “Against this background, it is striking that the Court fails even to consider whether the benefits secured by application of the exclusionary rule in this case outweigh its obvious social costs.”

This view gained steam in the 1978 opinion in Rakas v. Illinois, where Justice Rehnquist wrote:

Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected.

This resentment towards the exclusionary rule set the stage for the good-faith exception to the Fourth Amendment. Justice White, in his concurring opinion in Illinois v. Gates presaged the good faith exception.

Because of the inherent trustworthiness of seized tangible evidence and the resulting social costs from its loss through suppression, application  of the exclusionary rule has been carefully “restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U. S. 338, 348 (1974).

In 1984, Chief Justice Burger wrote in Nix v. Williams:

The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from  violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding thehigh social cost of letting persons obviously guilty go unpunished for their crimes.

The good faith exception was formally recognized in United States v. Leon in 1984. I will quote the entire paragraph dealing with social cost:

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. “Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.” United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445, 65 L.Ed.2d 468 (1980). An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. ^FN6 Particularly*908 when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Stone v. Powell, 428 U.S., at 490, 96 S.Ct., at 3050. Indiscriminate application of the exclusionary rule, therefore, may well “generat[e] disrespect for the law and administration of justice.” Id., at 491, 96 S.Ct., at 3051. Accordingly, “[a]s with **3413 any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, supra, 414 U.S., at 348, 94 S.Ct., at 670; see Stone v. Powell, supra, 428 U.S., at 486-487, 96 S.Ct., at 3048-3049; United States v. Janis, 428 U.S. 433, 447, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976).

In a footnote, the Court addressed a large body of scholarship showing that the exclusionary rule has almost no effect on the prosecution of crimes. However, the Court decided to disregard this data, arguing that–I suppose in principle, because it is not grounded in statistics–the notion of criminals going free even though the police acted in good faith is abhorrent. Such evidence should not be excluded.

FN6. Researchers have only recently begun to study extensively the effects of the exclusionary rule on the disposition of felony arrests. One study suggests that the rule results in the nonprosecution or nonconviction of between 0.6% and 2.35% of individuals arrested for felonies. Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 A.B.F.Res.J. 611, 621. The estimates are higher for particular crimes the prosecution of which depends heavily on physical evidence. Thus, the cumulative loss due to nonprosecution or nonconviction of individuals arrested on felony drug charges is probably in the range of 2.8% to 7.1%. Id., at 680. Davies’ analysis of California data suggests that screening by police and prosecutors results in the release because of illegal searches or seizures of as many as 1.4% of all felony arrestees, id., at 650, that 0.9% of felony arrestees are released, because of illegal searches or seizures, at the preliminary hearing or after trial, id., at 653, and that roughly 0.5% of all felony arrestees benefit from reversals on appeal because of illegal searches. Id., at 654. See also K. Brosi, A Cross-City Comparison of Felony Case Processing 16, 18-19 (1979); U.S. General Accounting Office, Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions 10-11, 14 (1979); F. Feeney, F. Dill, & A. Weir, Arrests Without Convictions: How Often They Occur and Why 203-206 (National Institute of Justice 1983); National Institute of Justice, The Effects of the Exclusionary Rule: A Study in California 1-2 (1982); Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 A.B.F.Res.J. 585, 600. The exclusionary rule also has been found to affect the plea-bargaining process. S. Schlesinger, Exclusionary Injustice: The Problem of Illegally Obtained Evidence 63 (1977). But see Davies, supra, at 668-669; Nardulli, supra, at 604-606.Many of these researchers have concluded that the impact of the exclusionary rule is insubstantial, but the small percentages with which they deal mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures. “[A]ny rule of evidence that denies the jury access to clearly probative and reliable evidence must bear a heavy burden of justification, and must be carefully limited to the circumstances in which it will pay its way by deterring official unlawlessness.” Illinois v. Gates, 462 U.S., at 257-258, 103 S.Ct., at 2342 (WHITE, J., concurring in judgment). Because we find that the rule can have no substantial deterrent effect in the sorts of situations under consideration in this case, see infra, at 3417-3419, we conclude that it cannot pay its way in those situations.

The Leon rule is still good law, the Court routinely considers social costs when construing the exclusionary rule.

In its most recent articulation in Herring v. United States, Chief Justice Roberts wrote this of the exclusionary rule, the Fourth Amendment, and social costs:

In addition, the benefits of deterrence must outweigh the costs. Leon, supra, at 910. “We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Scott, supra, at 368. “[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.” Illinois v. Krull, 480 U. S. 340, 352-353 (1987)(internal quotation marks omitted). The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free— something that “offends basic concepts of the criminal justice system.” Leon, supra, at 908. “[T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.”Scott, supra, at 364-365 (internal quotation marks omitted); see also United States v. Havens,446 U. S. 620, 626-627 (1980); United States v. Payner, 447 U. S. 727, 734 (1980).

And how should these competing social costs be compared? Justice Scalia and Justice Breyer sparred in Hudson v. Michigan over the use of social costs in construing the constitutionality of no-knock warrants.

Justice Scalia, writing for the majority notes:

Quite apart from the requirement of unattenuated causation, the exclusionary rule has never been applied except “where its deterrence benefits outweigh its `substantial social costs,'”Scott, 524 U. S., at 363 (quoting Leon, 468 U. S., 595*595 at 907). The costs here are considerable.

…

Next to these “substantial social costs” we must consider the deterrence benefits, existence of which is a necessary condition for exclusion. (It is not, of course, a sufficient condition: “[I]t does not follow that the Fourth Amendment requires adoption of every proposal that might deter police misconduct.” Calandra, 414 U. S., at 350; see also Leon, supra, at 910.)

Breyer replies:

Neither can the majority justify its failure to respect the need for deterrence, as set forth consistently in the Court’s prior case law, through its claim of “ ‘substantial social costs‘ ”-at least if it means that those “ ‘social costs‘ ” are somehow special here. Ante, at 2166. The only costs it mentions are those that typically accompany any use of the Fourth Amendment’s exclusionary principle: (1) that where the constable blunders, a guilty defendant may be set free (consider Mapp itself); (2) that defendants may assert claims where Fourth Amendment rights are uncertain (consider the Court’s qualified immunity jurisprudence), and (3) that sometimes it is difficult to decide the merits of those uncertain claims. Seeibid. In fact, the “no-knock” warrants that are provided by many States, by diminishing uncertainty, may make application of the knock-and-announce principle less “ ‘cost[ly]’ ” on the whole than application of comparable Fourth Amendment principles, such as determining whether a particular warrantless search was justified by exigency. The majority’s “substantial social costs” argument is an argument against theFourth Amendment’s exclusionary principle itself. And it is an argument that this Court, until now, has consistently rejected.

The Social Costs of Miranda v. Arizona

The issue of social cost in the context of Miranda warnings was first identified in Justice Harlan’s dissent opinion in Miranda v. Arizona:

How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete, see Developments, supra, n. 2, at 941-944, and little is added by the Court’s reference to the FBI experience and the resources believed wasted in interrogation. See infra, n. 19, and text. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control,^FN14 and that the Court is taking a real risk with society’s welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.

FN14. See, e.g., the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut, 367 U.S. 568, 578-579, 81 S.Ct. 1860, 1865, 1866, 6 L.Ed.2d 1037, (Frankfurter, J., announcing the Court’s judgment and an opinion).

In New York v. Quarles, the Supreme Court recognized the public safety exception to Miranda, in large part, based on a calculus involving the relevant social costs.

In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost . . . We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.

The debate over the social costs of Miranda was heightened leading up to the 2000 case of Dickerson v. United States based largely on the research of Professor–and later Judge–Paul Cassell.  In two articles–HANDCUFFING THE COPS? A THIRTY-YEAR PERSPECTIVE ON MIRANDA’S HARMFUL EFFECTS ON LAW ENFORCEMENT and MIRANDA’S SOCIAL COSTS: AN EMPIRICAL REASSESSMENT, Cassell studies the number of criminal cases that are “lost” due to Miranda. Cassell concludes that, among other findings:

• Our equations suggest, for instance, that between 8000 and 36,000 more robberies would have been solved in 1995 in the absence of the Miranda effect.
• As many as 36,000 robberies, 82,000 burglaries, 163,000 larcenies, and 78,000 vehicle thefts remain uncleared each year as a result of Miranda.
• Multiplying the Miranda cost figure (3.8%) by the UCR index arrest figures suggests that in 1993 Miranda produced roughly 28,000 lost cases against suspects for index violent crimes and 79,000 lost cases against suspects for index property crimes. The violent crime figure can be divided into specific crimes, specifically 880 murder and nonnegligent manslaughter cases, 1400 forcible rape cases, 6500 robbery cases, and 21,000 aggravated assault cases.
• Using the same methods, additional lost cases in 1993 for crimes outside of the crime index were more than 500,000, including: 57,000 lost cases for driving under the influence; 44,000 lost cases for assaults (not including aggravated assault); 42,000 lost cases for drug offenses; 19,000 lost cases for forgery and fraud; 12,000 lost cases for vandalism; and 9000 lost cases for weapons violations (carrying, possessing illegally, etc.).
• Roughly 28,000 arrests for serious crimes of violence and 79,000 arrests for property crimes slip through the criminal justice system due to Miranda, and almost the same number of cases are disposed of on terms more favorable for defendants.

The Court in Dickerson rejected any reliance on the possible unsolved crimes that could result from Miranda. Even Justice Scalia’s dissent ignored the negative externalities of Miranda. Both opinions focused on the sole question of whether Miranda was a constitutional, or mere prophylactic rule.

Justice Scalia affirmed this point during oral arguments in McDonald, in the process of disagreeing with Justice Breyer over the role of statistics in determining constitutional rights:

JUSTICE BREYER: There are two ways. One is that — look at — all you have to do is look at the briefs. Look at the statistics. You know, one side says a million people killed by guns. Chicago says that their — their gun law has saved hundreds, including — and they have statistics — including lots of women in domestic cases. And the other side disputes it. This is a highly statistical matter.

…

JUSTICE SCALIA: There is a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?

So how to reconcile the good-faith exception to the Fourth Amendment in Leon–where the Court does consider the social costs of letting guilty people go free–and violations of Miranda–where the Court ignores these social costs? While the latter is a constitutional rule–as articulated in Dickerson–the former is not.

In Pennsylvania Bd. of Probation and Parole v. Scott, the Court made clear that the exclusionary rule is prudential, rather than constitutional.

We have emphasized repeatedly that the government’s use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution. See, e. g., United States v.Leon, 468 U. S. 897, 906 (1984); Stone v. Powell, 428 U. S. 465, 482, 486 (1976). . . . The exclusionary rule is instead a judicially created means of deterring illegal searches and seizures. United States v.Calandra, 414 U. S. 338, 348 (1974). As such, the rule does not “proscribe the introduction of illegally seized evidence in all proceedings or against all persons,” Stone v. Powell, supra, at 486, but applies only in contexts “where its remedial objectives are thought most efficaciously served,” United States v. Calandra, supra, at 348; see also United States v. Janis, 428 U. S. 433, 454 (1976) (“If . . . the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted”). Moreover, because the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its “substantial social costs.” United States v. Leon, 468 U. S., at 907.

Because it is prudential, the Court can consider the social cost. For Constitutional rules–and I believe the Second Amendment is a constitutional rule– the importance of social cost is not of the same magnitude.

The Second Amendment, unlike the exclusionary rule is not a prudential rule–it is constitutional. Recognizing this second-class status for the second amendment sheds new light on how we treat rights.

The Constitutionality of Social Cost

The relationship between the constitutionality of a law abridging a right, and the social cost that law aims to limit, has largely been ignored in the literature. Most assume without argument that the social cost of a right can be used as a determinant in a constitutional analysis. This need not always be true. Rather, the case law provides guideposts about the use of social costs in limiting a right.

The Constitution does not demand ignorance of the social costs of the exercise a right. Indeed, the Constitution is not a suicide pact. However, the social costs of a right need not be the sole, or even primary determinant of the constitutionality of the exercise right.

As Justice White remarked in Patterson v. New York:

The requirement of proof beyond a reasonable doubt in a criminal case is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” Winship, 397 U. S., at 372 (Harlan, J., concurring). The social cost of placing the burden on the prosecution to prove guilt beyond a reasonable doubt is thus an increased risk that the guilty will go free. While it is clear that our society has willingly chosen to bear a substantial burden in order to protect the innocent, it is equally clear that the risk it must bear is not without limits; and Mr. Justice Harlan’s aphorism provides little guidance for determining what those limits are.

This insight is quite significant for Second Amendment analyses.

The Right to Keep and Bear Arms as the Most Dangerous Right

In the context of the Second Amendment, the courts treat the social costs of the right to keep and bear arms in most cases as the only consideration when determining the constitutionality of a gun control regulation. I contend that this approach is not only misguided, but singles out the 2nd amendment from all other rights. No other right–not even other dangerous rights identified in this post–is limited so severely by social cost. As demonstrated, the issue of social cost is often seen as an ancillary consideration, while the inherent liberty is treated as the primary factor. The presumption is towards liberty–and admissibility–rather than towards statism, and exclusion. In contrast, the right to keep and bear arms is seen a dangerous privilege that can be burdened to any degree if it will eliminate social costs, no matter how remote. For this reason, I have dubbed, with tongue-in-cheek, the 2nd Amendment as The Most Dangerous Right.

I will explore the notion of equality of rights, the most dangerous right, and the constitutionality of social costs in future works.