The Constitutionality of Social Cost: The Second Amendment, Categoricalism, Balancing, Core Values, Incidental Burdens, and Government Purposes

December 19th, 2010

One of the leading articles exploring the framework the Heller court used to treat the Second Amendment is Categoricalism and Balancing by Joseph Blocher. This insightful article argues that the approach Justice Scalia adopts in Heller sounds in categoricalism, rather than balancing tests—the Court crafted broad rules rather than flexible standards. For example, guns can be banned in “sensitive places” but not in the home. Blocher argues that this approach is shortsighted, and prefers a balancing approach that aims to protect rights that cover the “core values” of the second amendment. Blocher also looks at how the Court has treated other constitutional rights, primarily the First Amendment’s speech clause jurisprudence, which employs various balancing tests.

In this post, I wish to probe Blocher’s article, and explore how it relates to my ongoing series of writings on the Constitutionality of Social Costs. Specifically, I want to assess the role that “core values,” “incidental burdens,” and “government purpose,” play in second amendment analyses.

Limitations on rights, or “burdens,” as Blocher calls them are almost always constitutional under balancing approaches if they are “incidental.” Incidental burdens are generally outweighed by “even a moderate governmental interest.” However, under a categorical approach—the approach taken by Scalia in Heller, “incidental burdens are as impermissible as any other burden and cannot be balanced away.” Treating incidental burdens and non-incidental burdens alike, Blocher writes, “can lead to absurd results, such as the invalidation of popularly enacted laws that present a minor and unintended obstacle to the exercise of a categorically protected right.”

Before determining whether a burden is “incidental,” “the Court must first identify that core.”

As Blocher noted in his article, “the First Amendment’s categorical coverage rules were derived not directly from the text of the First Amendment, nor necessarily by tracing the lineal descendants of some ‘original’ categories, but by weighing contemporary interests in light of the Amendment’s core values.” Blocher summarizes First Amendment jurisprudence thusly: “In sum, First Amendment doctrine employs a categorical approach frequently at the level of coverage, occasionally at the level of subcategorization, and rarely—and usually only by reference to the core values of the Amendment—at the level of protection. At every level, however, categoricalism relies on some conception of the First Amendment’s core values.”

He extends this framework to the Second Amendment, seeking the core values of the right to keep and bear arms. The crux of Blocher’s article, is focused on defining this core:

“Thus the identification of core values enables courts to accord lessened protection to covered subcategories that are not proximate to those values (a question of subcategorization) and to transform incidental burdens into categorical exclusions (an issue of coverage).”

The problems of Blocher’s methodology is definitional. What is the core? What are the values underlying the Second Amendment? While Blocher attempts to move away from the indeterminacy of Scalia’s categorical approach, his balancing approach is just as susceptible to judicial overreach and ambiguity—just read Justice Breyer’s dissenting opinions in Heller and McDonald. Values emanating from outside the core—call them penumbral values—are treated categorically worse than those values in the core.

Who is to say what is a core value and what is a penumbral value? Is there really much difference between Scalia’s categorical-based decisions (sensitive places/non-sensitive places) and Blocher’s balancing model (core values/penumbral values)? Seems just as arbitrary to me—especially when you have a Justice like Justice Breyer, who obviously disapproves of guns, and has no clue about the most basics of firearms (in his uninformed McDonald opinion, Breyer queried what a semiautomatic gun is. Anyone who has ever fired a gun could answer this question quite simply. Hopefully one of his clerks has gone shooting.).

Breyer thinks the core value of the Second Amendment is simply to prevent the federal disarmament of state militias. Likewise, Blocher asks – “[T]he question in Heller, then, was not whether modern handguns are connected to Founding-era weapons by some technological link but rather whether they are connected by some meaningful constitutional principle. In other words, to what constitutional value are Founding-era pistols and modern handguns both related?” Therefore, virtually any legislation with the intent of disarming people who are not in state militias—that is, everyone—would pass constitutional muster.

Blocher writes:

“While limiting judicial discretion is the very purpose of categoricalism,310 it inevitably increases the power of those who establish the categories in the first place.” Likewise, balancing “inevitably increases the power of those who establish the [core values] in the first place.”

Swap “establishing . . . categories” with recognizing “core values” and you are in the same situation.

Breyer acknowledges this charge of subjectivity in his Heller dissent, but argues his approach is still superior to Scalia’s.

My approach “of course, requires judgment, but the very nature of the approach . . . limits the judge’s choices; and the method’s necessary transparency lays bare the judge’s reasoning for all to see and to criticize. . . The majority’s methodology is, in my view, substantially less transparent than mine.”

Are Breyer’s values any more transparent than Scalia’s categorical rules? Not really. Breyer quite transparently doesn’t like guns. He jests that if people in DC want to have a gun, they can take a subway to Maryland and go target shooting. Kinda hard to defend oneself if a gun is across state lines. Justice Scalia quite transparently likes guns. Read his biography about his fondness of hunting and the like. Rumor has it he recently took Justice Kagan on a shooting trip. So what are we left with? Inflexible rules that are difficult to apply, but make an effort to protect a right, or subjective values that are openly antagonistic to the right, and seek to undermine it at every step? Is one approach really superior to the other?

Blocher elaborates on the notion of core values by seeking to identify the “government’s purpose in burdening a right.”

“One way to build such categorical protections on a foundation of constitutional principle is by identifying the government’s purpose in burdening a right. Where that purpose runs counter to the purpose of the right, the burden is flatly unconstitutional, no matter how the balance would otherwise be struck.”

Looking for the government’s purpose also encounters definitional problems. What is the “purpose of the government,” and what is the “purpose of the right”? The purpose of the right is really indistinguishable from the core values of the right, I think. So this approach aims to determine whether the government’s purpose conflicts with one of the core values of the right. As demonstrated previously, the core values is quite subjective. However, congressional purpose is infinitely malleable. I won’t rehash the debate between Breyer and Scalia over purpose, specifically over the value of legislative history—I explore these issues in This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, 20 Geo. Mason U. Civ. Rts. L.J. 351 (2010). SSRN— but suffice to say, even Breyer concedes that purpose is sometimes difficult to ascertain (recently during oral arguments in Costco v. Omega Justice Breyer quipped that “is there anything in [the legislative history] that suggests that this is what Congress wanted to do, members of Congress? Even I draw the line somewhere.”

In the view of Breyer, the governmental purpose behind gun control laws is to protect people and save lives. However, if one takes the core value—or purpose, or whatever you want to call it—of the Second Amendment as an individual right to keep and bear arms for self defense, and the governmental purpose is to keep other people safe, it would seem that the governmental purpose always runs “counter to the purpose of the right.” Exercising the right of self-defense, especially with guns, usually ends up in hurting other people. By Blocher’s own logic, then most gun control laws would be “flatly unconstitutional, no matter how the balance would otherwise be struck.”

Yet, this is not the case. Even though Scalia and the Heller Court identify this as the purpose of the Second Amendment, they do not treat it that way. Rather, it seems that this may have been the historical/originalist purpose at one point, which gave the Court cover to constitutionally protect it. But, once it is protected, the distance between Scalia and Breyer isn’t as large as one thinks. Scalia’s comments during oral arguments in McDonald where he made clear that the Second Amendment doesn’t protect the right to carry arms outside the home supports this. Why is self defense—the purpose Scalia limited—limited to the home? Simply put, you are the king of your castle. There is less of a chance you can harm someone else in your home unless they do not belong there. If you are outside your home, the concern shifts from self-defense of the individual to the protection of society. The core value of the Second Amendment dissipates once you step outside your home. Outside the home, without this value, the government’s purpose of protection no longer conflicts with the purpose of the right, and the regulation is presumptively constitutional. That is what is actually going on.

Even if purpose can be ascertained, what standard should the Court be using to consider that purpose? Should it be trying to sniff out impermissible rationales, or should it simply assume that the purpose is rational, and presumptively constitutional.

As I have written elsewhere, the Court’s pursuit of purpose is chimerical and inconsistent. In other areas of First Amendment jurisprudence, the Court searches for an impermissible governmental motive. In the Lemon test, the Court looks for a “legislative purpose” that is not “secular.” While the Lemon test ostensibly searches for a “secular legislative purpose,” what the Court effectively does is try to find purposes that are not secular. Likewise, in R.A.V. v. City of St. Paul, the Court found impermissible a statute’s whose purpose was to ban “only those legally obscene works that contain criticism of the city government.” As Blocher notes, “the suppression of political dissent . . . reflect[s] an impermissible government purpose.”

While in other contexts, the Court considers whether the governmental purpose is proper, in the second amendment context, Blocher, Breyer, and even Scalia, merely presume that the stated purpose of gun control laws is proper, and work from there.

Justice Breyer reasoned that “a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime.” He observed that urban areas “have different experiences with gun-related death, injury, and crime, than do less densely populated rural areas” and that “the linkage of handguns to firearms deaths and injuries appears to be much stronger in urban than in rural areas.”

Nowhere in Blocher’s article, nor anywhere in Breyer’s opinion does the purpose of behind gun control laws ever receive any scrutiny. It is almost taken as a given that restricting access to guns is a good thing—the only remaining question is how much should be permissible. Even Scalia’s opinion assumes that pure gun control regulation—and not punishing those who misuse guns—is a permissible purpose. The more fundamental question, is whether the government’s motive to limit access to arms is a permissible or impermissible motive.

Now you may ask, how can restricting access to guns and preventing people from being shot possibly be an impermissible government motive? Ask yourself whether restricting people from uttering seditious speech is proper? Ask yourself whether convicting dangerous criminal who are guilty, even though the police lack admissible evidence is proper? Ask yourself whether prohibiting the publication of leaked cables and classified intelligence documents on a web site, even though those documents may harm our national security, is proper? These laws can surely help prevent violence and harm, yet we look at them as improper motives, and the Courts deeply scrutinize governmental actions touching our constitutional rights. All of these questions aim to show how the Second Amendment and its second-class status is so deeply embedded in our jurisprudential psyches. Most people think nothing about nullifying the right to bear arms because we are so used to the right being minimized. I don’t count myself in that group. I partly blame this bias on the fact that it took the Court 200 frickin years to recognize that the Second Amendment means something. During this interregnum, the states were free to limit the right willy nilly. No worries. Better late than ever. The purpose of my writings it to help highlight that bias, and perhaps peel it back a bit.

With all other rights, the Court starts by recognizing right as a form of liberty, and then whittles away exceptions over time. With the Second Amendment, the Court spent all of a few paragraphs praising the right and then jumped into how limited it is. It was crippled before it started.

With other rights, the focus is on a broad conception of liberty, and small carve-outs are added over time to address certain social costs. With the second amendment, the carve-outs and exceptions basically swallow the right. Outside the comforts of one’s home, the right to keep and bear arms takes on zero constitutional significance. While the home is recognized as a constitutionally protected places, our other rights do not cease when we cross the threshold into the world. Neither should the second amendment.

While other rights are treated as a sea of liberty with small islands of the state littered about, for the right to keep and bear arms, we are in a sea of government, with small island of liberty barely staying afloat.