Bifurcating 2nd Amendment Challenges, and some other thoughts on the Constitutionality of Social Cost

January 5th, 2011

It strikes me that challenges to laws touching on the Second Amendment take two forms. The first type–like the suits in Heller and McDonald–seeks to challenge laws restricting access to firearms. For example, the law in the District of Columbia banning the possession of hand guns or bans on the right to carry arms outside the home. While the analogy is not precise, I see these laws as akin to prior restraint. They prevent the exercise of a constitutional right, presumably, to prevent certain social harms (violence, crime, etc.).

The second type of challenges deal with a person who did something wrong. In these cases, a person used or possessed a firearm in violation of some statute (like “longstanding prohibitions”), or is seeking the restoration of his Second Amendment rights following a conviction of some crime (such as Skoien).

Under Heller/McDonald, both of these cases are treated identically. A person with no criminal record, and who is a fine upstanding citizen–like Dick Heller or Otis McDonald–is treated in the same light as an unsavory armed and dangerous felon (or an armedĀ misdemeanant).

This strikes me as wrongheaded. My research on the constitutionality of social cost shows that an implicit limitation on the Court’s Second Amendment jurisprudence is the desire to limit violence stemming from firearm ownership. The former group is much less likely to cause violence than the latter. The costs are not equivalent.

Remedies generally are ex-post (exclusion of evidence, testimony obtained in violation of miranda, obscenity prosecution, etc). Regulations on the right to keep and bear arms, in contrast, are ex ante. They are based on statistics of posisble harms which may or may not happen.

Further, granting rights to people like Heller and McDonald may generate concerns that dangerous felons who challenge convictions will prevail in future cases. Concerns about a slippery slope towards the second type of challenge effectively limit the first type of challenges.

These two types are not the same, and they should be treated differently.

Second Amendment challenges should be bifurcated. The framework for ex ante licensing should be separate from framework for ex post punishment of using guns for violence.

If standard A was applied to challenges like Heller and McDonald, and standard B was applied to challenges like Skoien, the scope of A would become broader and more protecting of liberty, while the scope of B can be more narrowly tailored to address the harm at hand.

Further, to continue my attempt to equate the Second Amendment to other provisions in our Constitution, I think it makes sense to look at the 4 questions:

  • Who — Who can bear arms? (an upstanding citizen with no criminal record of an unsavory criminal)
  • What — What type of arms can a person bear?
  • Where — Where can a person keep arms? (sensitive place, the home similar to the “place” in time-place-manner)
  • When — When would a person be permitted to bear arms, or more specifically, after what type of delay would a person be permitted to own arms? (waiting period, etc)
  • Why — Why is the right being restricted? This goes to who has the burden to regulate the right.

I am making very good progress on this paper. I should have more soon.