Professors Brannon Dennings and Glenn Reynolds have a fascinating piece titled Five Takes on McDonald V. Chicago. This piece offers several observations in the aftermath of McDonald v. Chicago. Most interesting is their thoughts about whether the Supreme Court will treat the Second Amendment similarly to other rights in the Constitution. This is precisely the question I answer at some length in The Constitutionality of Social Cost (forthcoming in the Harvard Journal of Law & Public Policy). From Five Takes:
With its incorporation against the states post-McDonald, the SecondAmendment now leaves the netherworld it inhabited previously, and entersthe realm of what might be considered “normal constitutional law.” Wenow have a constitutional right recognized in no uncertain terms by theSupreme Court, and incorporated against the states. Litigants may nowinvoke that right without having to overcome questions of whether theright exists, whether it can be invoked by individuals, or whether it appliesonly against the states. For this reason, the Second Amendment, longtreated like an embarrassing stepchild, joins other provisions of the Bill ofRights, not as some odd exception, but as normal constitutional law.
The question remains whether the federal courts will protect Second Amendment rights vigorously, as they generally do with regard to FirstAmendment free speech rights,16 or lackadaisically, as they often seem todo with regard to Fourth Amendment search and seizure rights.17 At leastthese questions will now be decided in court and not relegated to the arenasof scholarship and politics alone. Courts will now be forced to address,rather than evade, Second Amendment questions.
In my article, I take a holistic approach, and compare how the Second Amendment has been treated in comparison with the entire Bill of Rights, and whether the Second Amendment will be singled out from its “brethren in the Bill of Rights” going forward:
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 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 searches 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 from the exercise of the right to keep and bear arms. 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 explores the constitutional dimensions of the social cost of liberty. While some have suggested that courts should look to the First Amendment for interpretational guidance for the Second Amendment, I propose a more holistic approach—look to the entire Bill of Rights. Liberty interests certainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that despite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently. As to how Courts should develop the right, I do not hold the key. Judges will invariably do what Judges do. My aim in writing this article is to counsel others to consider the Second Amendment in a different light than some previous scholars and court opinions have cast it in. All rights are subject to certain reasonableness and balancing tests. Yet, the scales used to balance the Second Amendment should be calibrated similarly to scales used to consider other rights.
The Constitutionality of Social Cost, I hope, will help to answer many of the questions future jurists and academics will pose about the Second Amendment. As I conclude:
While the historical debate over the Second Amendment is likely to rage for some time, the future of this jurisprudential skirmish will be waged on a battlefield with two fronts—liberty and social costs. The frontier will ebb and flow between the two opposing sides. This article does not purport to set the boundaries. Rather, it aims to propose rules of engagement, and ensure a fair fight. The purpose of this article is to redefine our understanding of the Second Amendment in the context of the other provisions in the Bill of Rights. If our nascent Second Amendment jurisprudence is to evolve, we must leave behind our pre-Heller view of the constitutionality of gun control laws and start treating the right to keep and bear arms like the other provisions in our Constitution. The Second Amendment should be lonely no more.