Garrett Epps on the Tucson Shooting, the Second Amendment, and the Constitutionality of Social Cost

January 13th, 2011

Garrett Epps has a very thoughtful post on the Atlantic titled How Will Loughner’s Gunshots Echo in the Supreme Court’s Quiet Halls?. Epps’ piece considers the tragic shooting in Tucson agains the backdrop of the Supreme Court’s opinions in Heller and McDonald.

I’m not saying that Heller caused Loughner’s particular rampage, any more than Sarah Palin did. I am saying that Heller (and the subsequent opinion in McDonald v. City of Chicago, which applied the handgun right against the states) has enshrined guns and gun culture even more firmly into the heart of an American society that isn’t doing very well with them. Gun-rights advocates–who range from the serious-minded to the genuinely scary–have rightly taken the Court’s statement as an affirmation that their worldview lives is a part of American identity; and they are now seeking to entrench and extend their right.

Perhaps the most interesting part of Epps’ piece is when he compares Scalia’s opinion in Boumedienne with his opinion in Heller, with respect to the social costs of constitutional rights–habeas corpus in the former, the 2nd amendment in the latter. This is a point I have considered in a number of posts on the constitutionality of social costs. Epps writes:

f you need evidence of that, look at his impassioned dissent in Boumediene v. Bush. In that case, a different majority reviewed the history of habeas corpus and concluded that Congress could not bar Guantanamo detainees from seeking the writ from federal courts. This writ is of an origin as ancient as any “right to bear arms,” and as fundamental to our system as the Second Amendment. But Justice Scalia dissented. “Contrary to my usual practice,” he began, “I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today. It will almost certainly cause more Americans to be killed.”

Epps argues that there are more deaths from gun violence than there are from terrorists, and that Americans will die as a result of Heller.

So consequences sometimes matter. Regardless of whose overall statistics you believe, gun violence deaths in America in our time dwarf the toll from terrorism and war over the same period. If Court decisions really can “cause more Americans to be killed,” then Heller may have already done so.

My prediction is that, in some way we may never be able to measure, the Supreme Court’s future jurisprudence on the Second Amendment will be influenced by what happened in Tucson, and that there will be more “Americans will be killed” and less “balancing is none of judges’ business.”

Lack of sane, workable restrictions on what guns can be owned and where they can be carried “will almost certainly cause more Americans to be killed”–far more every year than terrorists have ever come close to killing.

Epps is accusing Scalia of a double-standard here–Scalia is willing to countenance the costs of the Court’s opinion in Boumedienne, but he is not willing to consider these costs in Heller. I would quibble with this characterization in Heller, as I think the Court’s dicta about sensitive places and longstanding regulations implicitly shows a concern for the social costs of gun violence.

But, I think Epps has seized on a point I have been making for some time. The Court does not treat the social costs that result from different rights equally and consistently. Scalia is much more worried about the harm that can result from granting detainees habeas corpus rights than he is about permitting people like Dick Heller and Otis McDonald from keeping handguns in their homes for self defense.

More broadly, the Court does not treat the social costs from certain criminal procedure protections–such as criminals that go free as a result of Miranda and the exclusionary rule–and from dangerous types of speech under the First Amendment equally. As I have argued in my (work-in-progress) the Constitutionality of Social Cost, this is misguided.

While Epps is quite concerned about the harm that results from guns, I am curious to see what he thinks about the thousands of criminals–and the crimes they may have caused–who have gone free because of a violation of the 4th Amendment or Miranda. Only when we take a holistic view of the Bill of Rights, and realize that all rights are dangerous, can we accurately take stock of the balance between liberty and the Second Amendment.