Video Game Violence and the 2nd Amendment- Justice Breyer on Individual Liberty, the Police Power, and Judicial Deference

June 27th, 2011

The similarities between Justice Breyer’s dissents in EMA and McDonald are stark. Both cases represent attempts by a paternalistic state to infringe on individual liberty protected by an enumerated right in the Bill of Rights to advance some interest. In the former, the First Amendment, and in the latter, the Second Amendment. In both cases, Justice Breyer is willing to defer to findings made by the legislature–and even findings not made by the legislature (he supplements through individual research). In both cases, Justice Breyer minimizes any interest in the individual liberty interest involved, focusing almost exclusively in the interests of the state. In both cases (thankfully) he was in dissent.

The primary difference, of course, is that no one joined him in EMA. Justice Breyer stands alone on the Court as the Justice most willing to defer to legislative findings that infringe on any type of individual liberty.

I suppose in this sense, he is principled. Justices Ginsburg and Sotomayor are not willing to defer to the finds of the legislature with respect to the First Amendment, but are all too willing to defer on the Second Amendment.

In many respects, Justice Breyer is a modern-day Justice Holmes.