The dissenting Justices view the right to keep and bear arms as different from all other forms of liberty.
Justice Breyer puts it thusly:
Unlike other forms of substantive liberty, the carrying of arms for that purpose often puts others’ livesat risk. See ante, at 35–37. And the use of arms for pri-vate self-defense does not warrant federal constitutional protection from state regulation. See ante, at 44–51.
Stevens notes that when considering gun rights, there are liberty interests on both sides of the equation–
First, firearms have a fundamentally ambivalent relationship to liberty. …
Hence, in evaluating an asserted right to be free fromparticular gun-control regulations, liberty is on both sidesof the equation. Guns may be useful for self-defense, aswell as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby todestabilize ordered liberty. Your interest in keeping andbearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make yousafer on any given day—assuming the handgun’s marginalcontribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief—it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare.
This mirrors the arguments respondent made in their reply brief.
Thus, Chicago and Oak Park may reasonably conclude that in their communities, handgun bans or other stringent regulations are the most effective means to reduce fear, violence, injury, and death, therebyenhancing, not detracting from, a system of ordered liberty
Because handguns are so well adapted for the commission of crimes and the infliction of injury and death, stringent handgun regulations, including prohibitions, can be reasonably thought to create the conditions necessary to foster ordered liberty, rather than detracting from it.
I quote from an article I wrote after Heller:
In Heller, he asks “whether that benefit is worth the potential death-related cost. And that is a question without a directly provable answer.”239 Justice Breyer sets up a scale; “Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.”240
On one side are the potential costs to life guns can cause. But what is on the other side? What is the “benefit” or “interest” protected? Whereas Justice Breyer spends seven detailed pages, with ample footnotes, discussing the potential death-related costs of his 22-page dissent, he only devotes two sparse 2-pages discussing the benefits of the Second Amendment. . . . So of course, when Justice Breyer weighs an empirical bonanza of studies discussing the dangerousness of guns against three pathetic interests, it is unsurprising how that scale tilts.
These arguments boil down to one simple question–is the right to keep and bear arms a form of liberty that is worth protecting? The dissenters do not see it as a form of liberty. Being generous, they dissenters see guns as a privilege people can keep when the government thinks its ok. Being realistic, the dissenters see gun ownership as a nuisance that should be eradicated. When you start with these presumptions, it is no surprise that they weigh the benefits from this right against the harm from these rights. They simply see no benefit to being armed, nor do they realize the liberty interest involved.
As I wrote as a wide-eyed 3L:
Even assuming that the pros and cons of gun control are at equipoise; that is, the evidence is not clear whether striking down this law will protect people’s liberty, or cause more violence. Why need the tiebreaker go to the government, when there is an express protection of this liberty in the Bill of Rights.
Breyer made similar points during oral arguments:
Unsurprisingly, Justice Breyer fixated heavily upon the statistics showing the dangers of guns. If the right is incorporated, public safety decisions would be made by judges. If the right is not incorporated, public safety decisions would be made by legislators, who can consider the danger of weapons. Every case involving the second amendment, according to Justice Breyer, considers life versus guns.
To this, Gura replied that the Court should consider the case in the same fashion they considered Heller. Breyer proceeded to disagree with Heller, though he noted that “that was the dissenter’s view.” Justice Scalia retorted that Miranda rule releases dangerous people, and does not save lives. The Courts should not resolve questions on that basis.
Scalia is right. Here is the full transcript:
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?
MR. GURA: That’s correct, Justice Scalia, and as your opinion -JUSTICE
SCALIA: Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know — I think we mentioned in Heller concealed carry laws. I mean, those are — those are matter that we didn’t decide in Heller. And you may have a great deal of divergence
from State to State, and on that I suppose you would do statistics, wouldn’t you? Or the legislature would.
The Court does not consider other rights in the bill of rights based on the harm it could generate. Miranda and the exclusionary rule results in the acquittal of dangerous criminals. Yet we accept those results because of the benefits criminal procedure protections yield. Why is this different?