The Constitutionality of Social Cost will be Published in the Harvard Journal of Law & Public Policy

February 18th, 2011

I am proud to announce that my article, the Constitutionality of Social Cost, will be published in Volume 34 of the Harvard Journal of Law & Public Policy. The article is posted to SSRN now (at long last). If anyone has any comments or feedback, do let me know. The abstract is here:

During the Passover Seder, it is customary in the Jewish faith for the youngest child at the table to ask a series of four questions that begins with, “why is this night different from all other nights?” In order to understand the future of the Second Amendment, one must ask, “why is this right different from all other rights?” In District of Columbia v. Heller and McDonald v. Chicago, while the majority and dissenting opinions wildly differed over the historical pedigree of the individual right to keep and bear arms, they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently.

At first blush, this makes sense. Guns can be dangerous. As Justice Breyer noted, “the carrying of arms . . . often puts others lives at risk.” Since a “primary concern of every government [is a] a concern for the safety and indeed the lives of its citizens,” when construing the Second Amendment, it would seem straightforward that courts take into consideration the social cost, or negative externalities, of private ownership of firearms. So obvious in fact, that courts and pundits perfunctorily gloss over the constitutionality of limiting liberty in order to minimize social costs. This judicial oversight is glaring, and has contributed in no small part to the current disjointed state of Second Amendment jurisprudence.

While the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that that yield negative externalities. The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate, and advocate for certain types of 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, permitting crimes to go unpunished. 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 culpable 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. 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 retribution 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. Liberty’s harm to society takes many forms—not just loaded weapons.

These precedents show how the Court balances freedom and the harm that may result from its exercise. While a “primary concern of every government [is a] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

This article proceeds in five parts. Part I introduces a Coasean view of freedom that balances liberties and externalities, and the concept of the constitutionality of social cost. Part II provides an overview of the competing views of social cost in District of Columbia v. Heller and McDonald v. Chicago, focusing on Justice Breyer’s balancing beam and Justice Scalia’s devastating dicta. Part III considers the loneliness of the Second Amendment in the Bill of Rights, and confronts many of the arguments of the dissenting Justices that the Majority did not refute. While the majority prevailed with respect to the historical narrative, it remains to be seen whether the majority’s dicta-cum-pragmatism, or the dissenter’s pragmatism—which can be easily blurred together—will prevail. Part IV views the Second Amendment through the prism of the constitutionality of social cost, and considers the “wide variety of constitutional contexts [in which the Court] found [] public-safety concerns sufficiently forceful to justify restrictions on individual liberties.” Building on Parts I-IV, Part V provides a roadmap for the development of Second Amendment jurisprudence going forward.

Update: Legal Theory Blog featured my article, and graded it Highly recommended.