I just uploaded an updated version of The Constitutionality of Social Cost to SSRN. It should be published in the Harvard Journal of Law & Public Policy at some point this summer. My thanks to the fantastic editors at that Journal for providing some brilliant comments, and helping to refine my argument.
At 95 pages and 558 footnotes, this is my longest article, exceeding the Blackman-Shapiro production, Pandora’s Box, which had 87 pages and a mere 453 footnotes–though Ilya would tell you it was too long as is :). I am quite proud of this piece.
I will be using this as my Job Talk piece for the AALS hiring market, so I’m open for any questions (and especially challenges).
Here is the abstract:
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?” 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. City of Chicago, the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but 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 from other constitutional rights.
At first blush, this may make sense. Guns can be dangerous if misused. As Justice Breyer noted in McDonald, “[T]he carrying of arms . . . often puts others’ lives at risk.” Because a “primary concern of every government [is] 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 potential social cost, or presumed 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 it has contributed in no small part to the currently disjointed state of Second Amendment jurisprudence.
Although 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 to advocate for certain types of violence . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of 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 certain 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, and 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 may allow 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 range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be indefinitely 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. Although a “primary concern of every government [is] 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. Although 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
This Article proceeds in five parts. Part I explores a Coasean view of freedom that balances liberties and externalities, and introduces the concept of the constitutionality of social cost. Part II provides an overview of the competing views of social cost in Heller and McDonald, focusing on Justice Breyer’s balancing test and Justice Scalia’s pragmatic 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. Part IV views the Second Amendment through the lens 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. Second Amendment challenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demonstrated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appropriate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.
And the conclusion:
Although 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 individual rights in our Constitution. The Second Amendment should be lonely no more.