Brown v. Plata presents an interesting breakdown on the Constitutionality of Social Cost, and provides keen insights into the future of the Right to Keep and Bear Arms after McDonald v. Chicago

Justice Kennedy, joined by three of the McDonald Dissenters (Ginsburg, Breyer, and Sotomayor), and Kagan (who probably would have dissented in McDonald) are willing to accept the social costs of an order requiring the release of 46,000 dangerous prisoners, notwithstanding PLRA, which called for “substantial weight to any adverse impact on public safety.”

The PLRA’s requirement that a court give “substantial weight” to public safety does not require the court to certify that its order has no possible adverse impact on the public. A contrary reading would depart from the statute’s text by replacing the word “substantial” with “conclusive.”Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors.

Justices Scalia, Thomas, Alito, and Roberts, all in the majority in McDonald, were not willing to accept the impact on public safety of the release order.

So it seems the majority is willing to accept social cost from criminals being released–even those criminals who (gasp) may use illegal guns to harm others–but is not willing to accept the social costs of law abiding citizens who have shown no propensity for danger, who may, or may not use the guns for ill.

The majority is willing to defer to a lower court’s “fanciful” finding of facts, and ignore the determinations of the elected branches of how to structure a criminal justice system–but are not willing to look at the bounty of evidence that shows private ownership of firearms decreases crime, and defer, blindly to the determinations of the elected branches.

Justice Kennedy’s admonition that judges must decide tough cases is appropriate; his colleagues in the majority would be well-served to consider this principle the next time a tough Second Amendment case comes before the Court, and they are unwilling to depart from the will of the state, and render a controversial opinion.

Although these judgments are normally made by state officials, they necessarily must be made by courts when those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings.

Even more astounding is the nature of the plaintiffs. Dick Heller and Otis McDonald were upstanding virtuous citizens who wanted to keep a firearm at home. The 46,000 people being released are prisoners! Convicted of dangerous crimes to others. Why should the former be deprived of any presumption of liberty, and denied an enumerated right in the Constitution, while the latter should get every benefit of the doubt, even though they have been adjudged by their society as guilty  of crimes. Many of those who will be released aren’t even among the aggrieved plaintiffs! It is confounding when you compare these two cases.

The Constitutionality of Social Cost has already gone to press, so unfortunately, I cannot lament this notable double standard. It seems some justices are willing to tolerate social costs of one kind, but not another. Liberty is liberty. If you think an overcrowded prison amounts to a deprivation of liberty, and are willing to unleash these people onto society, why should law abiding citizens who want to keep and bear arms be any different?

I am not going to let the dissent off easy here either. There were two dissents. Scalia, joined by Thomas, and Alito, joined by Roberts. Scalia’s dissent was broader, more jurisprudential, and focused on the role of courts (similar to his McDonald concurring opinion). Alito’s dissent relied heavily on the statistics of social harm that may result from the release.

During oral arguments in McDonald Scalia rejected Breyer’s assertion that the Courts can consider statistics when defining constitutional rights.

JUSTICE BREYER: There are two ways [to consider the firearm regulation]. One is that—look at—all you have to do is look at the briefs. Look at the statistics. You know, one side says a million people killed by guns. Chicago says that their—their gun law has saved hundreds, including—and they have statistics—including lots of women in domestic cases. And the other side disputes it. This is a highly statistical matter.

JUSTICE SCALIA: There’s a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t—we don’t resolve questions like that on the basis of statistics, do we?494

Yet, this is precisely what Alito did.

After all, the sharp increase in the California prison population that the three judge court lamented, see id., at 254a, has been accompanied by an equally sharp decrease in violent crime.11 These California trends mirror similar developments at the national level,12 and “[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.”13 If increased incarceration in California has led to decreased crime, it is entirely possible that a decrease in imprisonment will have the opposite effect.

11 From 1992 to 2009, the violent crime rate in California per 100,000 residents fell from 1,119.7 to 472.0—a decrease of 57.8 percent. Similarly, in the United States from 1992 to 2009, the violent crime rate per100,000 residents fell from 757.7 to 429.4—a decrease of 43.3 percent.Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reporting Statistics, http://www.ucrdatatool.gov.

12 According to the three-judge court, California’s prison population has increased by 750 percent since the mid-1970’s. Juris. App. 254a. From 1970 to 2005, the Nation’s prison population increased by 700 percent. Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011, 19 Fed. Sent. Rep. 234, 234 (2007)

Alito has a bit of a causation/correlation mixup, when he tries to link the increase of prison population in California with the decrease of violent crime. Post hoc ergo propert hoc.  Plus, if you buy Freakaonomics, in times of economic prosperity (such as the 90s) crime drops. It is not clear how much of this is due to incarceration.

This loose reasoning should not be the basis of constitutional law. Alito did in Plata what Breyer did in McDonald. Base constitutional rights on disputed empirics.

Alito’s dissent closes on a judicial minimalist tone:

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.

The emphasized portion may very well signal Alito’s outer bounds on the right to keep and bear arms; to protect public safety, every reasonable precaution should be taken. Don’t expect Alito to support a right to conceal carry. As I noted in the Constitutionality of Social Cost:

In the next sentence, Justice Alito identifies the recipient of these assurances—the municipal respondents (the cities of Chicago and Oak Park).126 Justice Alito reassures proponents of strict gun control regimes that despite their “doomsday proclamations, incorporation does not imperil every law regulating firearms.”127 This wink and a nod is quite telling—in other words, do not worry,the courts will not second‐guess your laws when doing so may yield too many social costs.

I wish I could add the emphasized sentence above as a footnote to the this passage. It fits, perfectly. And the Chief seems to be on board.

Justice Kennedy is the only principled Justice on this ground–his commitment to protecting liberty in conjunction with considering social cost holds true.