The Constitutionality of Social Cost — Liberty is Dangerous

December 5th, 2010

Liberty is dangerous. The freedom to speak freely allows people to preach hate, violence, intolerance, and even foment revolution. The freedom of the press permits the media to report on matters that harm national security. The freedom of association allows people to congregate, and perhaps incite violence. The freedom to be secure in one’s persons, houses, papers, and effects against unreasonable searched and seizures permits people to possess the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial. Likewise, a violation of a person’s Miranda rights renders any confessions—even an uncoerced inculpatory confession—inadmissible.  Procedural rights during the criminal trial—including the right to grand jury indictment, the right against self-incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, the right of trial by jury—all make the prosecution of guilty defendants significantly harder. The due process clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution—an additional, nearly insurmountable burden for conviction. The right to non-excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions, and perhaps, allows them to abscond before trial. The right against cruel and unusual punishments removes certain forms of punishment from the quiver of the state, thereby limiting the ability to punish those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be indefinitely detained without proper procedures. The right to keep and bear arms allows people to possess implements of destruction. Simply put, liberty is dangerous.

The protection of individual rights yields significant social costs, or in economic terminology, negative externalities. Securing liberty is inversely proportional to the power of the government to order society. The more individual liberty we have, the harder it is for the government to maintain the health, safety, and welfare of the state. The less our individual liberty matters, the easier it is for the state to do as it wishes.

Even though they are dangerous, these social costs take on a constitutional dimension, and consequently demand judicial protection—or more precisely, judicial toleration of the negative externalities. Courts cannot permit the infringement of rights simply because the exercise of that right can be harmful to society. While Courts are free to use ad-hoc balancing tests to weigh social harms in non-constitutional contexts—ranging from the simple determination of reasonable care and negligence in a tort case to balancing the equities in a complex ERISA case—in the context of Constitutional rights, the frameworks are different. In the context of due process analyses, tiers of scrutiny help to inform the appropriate burden that is placed on the state in order to infringe the liberty of the individual. In the context of free speech analysis, doctrines of prior restraint, obscenity, and overbreadth, place limitations on how the government can limit the freedom of speech. In the context of criminal procedure rights, various strands of the exclusionary rule and Miranda warnings control the admissibility of evidence tainted through Constitutional violation.

However, in the context of the Second Amendment, long-standing prohibitions on gun control laws—even those laws passed before the Second Amendment was constitutionally recognized as an individual right—are presumptively constitutional, and the state has unfettered access to limit access to guns in “sensitive places.” This categorical approach is separate and distinct from the protection of any other constitutional right. Further, the entire protection of the right is premised and grounded on minimizing the social harm, as opposed to maximizing the individual liberty interests in the Second Amendment.

Justice Alito, reaffirming Justice Scalia’s Heller dicta, notes that “longstanding regulatory measures” and laws limiting bearing of arms in “sensitive places” are not to be doubted. According to the dissenting 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.”

Some rights are more dangerous than others. Or more precisely, the Supreme Court has determined that some rights are more dangerous than others—in particular the right to keep and bear arms. The purpose of this inquiry to consider how the Court has treated the constitutionality of these social costs, and to compare and contrast the frameworks it has used to protect the “most dangerous rights.”