The Most Dangerous Right

July 28th, 2010

According to the dissenting McDonald Justices of the “least dangerous branch,”  the right to keep and bear arms is unlike all others, and is the most dangerous right. In the words of Justice Stevens the “liberty interest” protected by the Second Amendment is “dissimilar from those we have recognized in its capacity to undermine the security of others,”  and “firearms have a fundamentally ambivalent relationship to liberty.”  According to Justice Breyer, “unlike other forms of substantive liberty, the carrying of arms for that purpose often puts others lives at risk.” But why is the right to keep and bear arms so different?

During the Passover Sedar, it is customary in the Jewish faith for the youngest child at the table to ask a series of Four Questions, that begins with “Why is this night different from all other nights?” In order to grasp the varied opinions in McDonald v. Chicago, as well as our modern conception of rights and liberties, one must ask “Why is this right different from all other rights?”

This is an idea that I will be developing for an article about McDonald (separate from the piece I am co-authoring with Ilya Shapiro and Alan Gura in the Cato Supreme Court Review)

. In short, why are some rights treated differently from other rights?  Why are some rights favored more than others? Implicit in the assignment of a tier of scrutiny is the hidden normative bias that some rights are more worthy of protections than other. Rights given strict scrutiny are important. Rights given rational basis scrutiny are worth nothing.

Much of this distinction in rights boils down to the bifurcating of rights under Footnote Four of Carolene Products. Though as I have argued, the Court has relied quite seldom on this bifurcating principle, and contrary to the assertions of the dissenting Justices, Footnote Four actually counsels a higher level of scrutiny for an enumerated right, such as the Second Amendment.

I tend to think that a right is a right is a right. Perhaps we should strive for “equal rights under law.” I use the phrase “equal rights under law” not to imply that everyone possesses the same rights–that would seem to fall under “equal protection of the laws.” Rather, I use the phrase “equal rights under law” to imply that different rights should be treated equally.

More to come. Soon.