Liberty is costly; but restraining liberty can be even more costly. This is the most recent post in my series of posts on the constitutionality of social costs.
In The Problem of Social Cost, Ronald Coase recognized that limiting the rights of A to protect B creates a “problem of a reciprocal nature.” Coase wrote:
The question is commonly thought of as one in which A inflicts harm on B and what has to be decided is: how should we restrain A? But this is wrong. We are dealing with a problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?
Let’s rephrase this argument in terms of the Second Amendment. All of the cases that considered the Second Amendment—primarily Heller and McDonald—primarily view the limitations on the right to keep and bear arms in terms of restraining the harm which A (the gun owner) inflicts on B (the victim of the gun owner). Like Coase, I think this limited inquiry is wrong. If the Heller Court is right—and until 5 Justices say otherwise, I will assume it is—and the “core lawful purpose of [the Second Amendment is] self-defense,” upholding certain types of gun control laws “to avoid the harm to B[,] would inflict harm on [the constitutional rights and liberties of] A.” The scales of justice have two balanced counterweights. “The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?” Is the right to be free from fear of harm greater than the exercise of one’s constitutional right to keep and bear arms?
This is the question of the constitutionality of social cost. This is a question that courts only consider cursorily when looking at the constitutionality of gun control restrictions. Further, the framework with which the Courts have used to look at this question is different and distinct from any harm-based analyses or other balancing tests used for other constitutional rights.
Most of Coase’s article focuses on issues of contract and tort, nuisance law in particular. When considering nuisance laws, generally speaking, when the value of A harming B is less than the value of B harming A, A should be permitted to engage in the conduct. However, when the value of A harming B is greater than the value of B harming A, the conduct is a nuisance, and the law mandates that it should be abated. Coase relies on Prosser:
Thus, to quote Posser on Torts, a person may make use of his own property or . . . conduct his own affairs at the expense of some harm to his neighbors. He may operate a factory whose noise and smoke cause some discomfort to others, so long as he keeps within reasonable bounds. It is only when his conduct is unreasonable, in the light of its utility and the harm which results [italics added], that it becomes a nuisance . . . . As it was said in an ancient case in regard to candle-making in a town, “Le utility del chose excusera le noisomeness del stink.” The world must have factories, smelters, oil refineries, noisv machinerv and blasting, even at the expense of some inconvenience to those in the vicinity and the plaintiff may be required to accept some not unreasonable discomfort for the general good.
This view only considers one side on the scales of Justice. Coase noted:
The problem which we face in dealing with actions which have harmful effects is not simply one of restraining those responsible for them. What has to be decided is whether the gain from preventing the harm is greater than the loss which would be suffered elsewhere as a result of stopping the action which produces the harm.
Courts do this type of balancing, often implicitly:
It was argued that the courts are conscious of this and that they often make, although not always in a very explicit fashion, a comparison between what would be gained and what lost by preventing actions which have harmful effects.
This is largely the type of analysis the Supreme Court has applied to the Second Amendment, essentially treating the right to keep and bear arms as a nuisance that should be tolerated as long as its harmful effects do not exceed its beneficial effect. I have argued in the past that Breyer’s Heller and McDonald dissents essentially treat the Second Amendment as privilege with no constitutional value. This is flawed. Considering the Second Amendment as a nuisance that can be abridged because it may result in harm is troubling. Viewing his dissent in Coasean terms helps to illuminate the value, or lack thereof, he assigns to this right. A right is not a nuisance that should be merely tolerated. It is a bulwark of liberty that should be celebrated.
If the Second Amendment is in fact an individual constitutional right, then it should not be treated as if it were a nuisance that can be infringed whenever Judges think it is dangerous. No other constitutional right is held to such a flimsy standard. The instrinsic and inherent value in a Constitutional right places it on a different plane with respect to cost-benefit analysis. As I have documented in other posts, a careful look at the constitutionality of social cost in the contexts of the First, Fourth, and Fifth Amendment reveals that the Courts are much less inclined to look into the possible harm A may cause B when construing whether B can limit the rights of A.
In a future post, I will tie together the constitutionality of social costs in the contexts of the First, Second, Fourth, and Fifth Amendments. I will also take a look at Joseph Blocher’s article on Heller, titled Categoricalism and Balancing in First and Second Amendment Contexts. That piece has some interesting insights to my work. I will also work in how courts post-Heller have looked at the Second Amendment, particularly United States v. Skoien, both the panel and en banc opinions form the 7th Circuit, with a focus on Judge Sykes’s insightful dissent. Ultimately, in my goal to liveblog my law review articles, I will stitch together the several posts in this category into an essay, which would be ready by the end of this month. Thank you to my readers for all of the feedback.