In The Constitutionality of Social Cost, I recognized that firearm regulations are effectively ex ante deprivations of liberty. People are denied their Second Amendment rights prior to engaging in any criminal activity. This practice is much less egregious, but not philosophically different, from civil commitment. I found it odd that this ex ante approach was applied to people who have shown a propensity for violence, and those who have not. In this sense, I called for bifurcating Second Amendment challenges.
Building on the three categories of the precedents discussed,Second Amendment challenges should be bifurcated based onthe social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of people lacking a propensity for violence, the burden of persuasion remains withthe State, and stricter judicial scrutiny is warranted. For those who have demonstrated a propensity for violence and are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicialscrutiny is appropriate.
Challenges to laws touching the Second Amendment take two forms that are connected to the who and the why of social cost and liberty. The first type—like the suits in Heller andMcDonald—seeks to challenge an ex ante, or preemptive, restrictionto owning or carrying a firearm, such as the denial of alicense. The second type of challenges deal with an actor whohas shown a propensity for violence—such as cases wherein a convicted violent felon seeks restoration of his right to beararms—and seeks to challenge an ex post restriction to owningor carrying a firearm, such as the reinstatement of SecondAmendment rights.534
I came across an article by Professor Ferzan on Legal Theory Blog, titled Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible. This article addresses just the point I alluded to in my article: the deprivation of the liberty of “responsible actors,” and those who are not “responsible.” Here is the abstract:
The traditional approaches to dangerous persons have been crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: The state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this gap, the criminal law’s boundaries have expanded to include preparatory offenses and early inchoate conduct that are deserving of only minimal, if any, punishment in attempt to incarcerate the dangerous. Meanwhile, the Supreme Court’s effort to articulate a test of mental disease warranting involuntary confinement of sexual predators has failed to draw a principled distinction between the ordinary criminal and the mentally ill. This Article argues that rather than contorting the criminal or commitment models, there is a theoretical justification for substantial liberty deprivations of responsible, but dangerous, actors. Drawing on the concept of “liability to defensive force” from the self-defense literature, this Article argues that just as a culpable attacker’s own conduct grounds a defender’s right to response, a dangerous actor who begins a course of criminal conduct grounds the state’s right to stop him. This Article articulates what conduct is sufficient for “liability to preventive interference” as well as what the forms of preventive interference could be. In addition, this new form of liability is assessed in terms of constitutional implications, the civil-criminal divide, and practical considerations.
This passage from the Introduction speaks directly to the bifurcation I propose:
We want the state to protect us from these dangerous people. Truth be told, we want the state to lock them up. The scholarly literature argues that the law approaches dangerousness from two distinct and irreducible vantage points. These are ―disease‖ where the state may prevent and confine and ―desert‖ where it may punish and incarcerate.1 If the state denies the agent is a responsible agent, it can detain him. It can treat him as it treats other non-responsible agents, as a threat to be dealt with, without fear of infring-ing his liberty or autonomy interests. With respect to responsible actors, the state can use the criminal law. It can punish the deserving for the commis-sion of a crime. For a responsible agent, the state should not intervene in any substantial liberty depriving way prior to his commission of an offense for fear of denying his autonomy. The state must respect that a responsible agent may choose not to commit an offense. It cannot detain an actor for who he is. It must wait to see what he will do. Thus, to the extent that we have preventive practices that do not fit either model, these mechanisms are typically condemned as unjust.2
The person the state denies is a responsible agent–or as I phrased it, someone with a shown propensity for violence–should not be subjected to ex ante deprivations of liberty (I suggested the burden remains with the individual). In contrast, for responsible agents–those without a propensity for violence–ex ante deprivations of liberty (in the form of restrictive firearm laws) should not be permitted, and they should be accorded appropriate process (where the burden remains with the state).
This choice between crime and commitment leaves a gap.3 We have no justification for substantial intervention against responsible agents prior to when they have committed a criminal offense.4 We have no theory of when or why we may engage in substantial liberty deprivations of danger-ous and responsible actors. This Article bridges that gap. It offers an ac-count of how in one class of cases, the actor has made himself liable to preventive interference and thus cannot object that the liberty deprivation violates his rights.
In other words, how are responsible agents who have shown no propensity for violence subjected to ex ante deprivations of liberty. Outside of punishments for violent acts, these ex ante deprivations are not appropriate.
This passage speaks specifically to the ex ante (prevent)/ex post (punishment) distinction.
How should we understand the relationship between prevention and punishment? At first blush, prevention and punishment seem to be concep-tually distinct. Prevention looks forward. Punishment looks backwards. Prevention looks at what a person will do. Punishment looks at what a per-son has done. Prevention does not care about responsibility. Punishment requires the actor to be responsible. As Christopher Slobogin articulates the Supreme Court‘s jurisprudence in this area, ―criminal punishment is based solely upon a conviction for an offense and can occur only if there is such a conviction. Preventive detention is based solely upon a prediction concern-ing future offenses and can occur only if there is such a prediction. There-fore, preventive detention is not punishment. Indeed, the concept of ‗punishment‘ for some future act is incoherent.‖5
The author’s solution is grounded in self-defense literature–it is permissible to defend against an attacker because the attacker is culpable for his actions.
The state has an important role in protecting its citizens. Yet, the state‘s hands have been tied by the view that it must choose between crime and commitment. There is, however, a third model for state intervention. The self-defense literature recognizes that the reason why it is permissible to defend against culpable attackers is because of their actions. The culpa-ble aggressor‘s attack waives his right against the defender‘s use of defen-sive force. Similarly, when individuals have initiated a course of criminal conduct, they, too, have waived a right against defensive behavior. They have waived the right against preventive interference by the state.
This article has not sought to provide grounds for every possible sort of preventive interference. Rather, this article‘s focus has been on one type of case where the state is permitted to intervene, and that is the case in which the defendant has made himself liable to that intervention. Liability to pre-ventive interference allows the state to intervene at the early stages of a criminal plan. It justifies the state‘s engagement in myriad behaviors from electronic monitoring to unannounced searches. Yet, it is morally limited, as what is proportionate is only that conduct designed to stop a particular crime.
This theory provides an interesting intellectual framework undergirding my proposed bifurcation of Second Amendment challenges. Because a person who has shown a propensity for violence has engaged in certain culpable activities, ex ante deprivations of liberty are permissible. Though, for someone without this showing, ex post punishments, and not ex ante restrictions, should be the norm.
Her last paragraph is quite interesting:
Although such an approach would require a new constitutional jurisprudence, it is time that one was crafted. We can no longer afford to contort the paradigms of crime and commitment to reach the dangerous. The call is clear. Liability to preventive interference requires a jurisprudence of its own.
I would agree, and suggest that my framework of the Constitutionality of Social Cost may provide a possible suitable constitutional jurisprudence. My framework countenances a person’s propensity to danger when considering deprivations of individual liberty. This framework focuses on protecting society from those who actually pose a danger to others, and protecting the liberty of those without a propensity for danger from undue infringements. This, is the constitutionality of social cost.