Why is the Second Amendment different from all other rights?

July 10th, 2011

The title of this post captures a current blogosphere disagreement between Dave Kopel and Doug Berman regarding the interpretation of the Second Amendment in Ezell v. Chicago (analysis here and here) that cuts to the core of this novel jurisprudence. It is also essence of the opening of The Constitutionality of Social Cost.

At Volokh, Kopel wrote that now, the Second Amendment can now be treated like all other constitutional rights.

In short, the Second Amendment is part of normal constitutional law.  The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights.  Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times.  As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

At Sentencing Blog, Berman disagreed, and noted that because Judge Sykes sought to treat “law-abiding” citizens differently from non law-abiding citizens, this novel Second Amendment jurisprudence is not “part of normal constitutional law.”

The problem I have is with the claim that Ezell demostratrates that the Second Amendment is “part of normal constitutional law,” principally because Ezell distinguishes the Seventh Circuit’s approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only “law-abiding, responsible citizens” get full Second Amendment protection.  If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a “law-abiding, responsible citizen,” then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects “law-abiding, responsible citizens.”

I am going to agree and disagree with both Kopel and Berman, in part.

First, I agree with Berman that “no other constitutional right that only protects “law-abiding, responsible citizens.” But that is not to say that the Supreme Court has not modified the requisite constitutional analysis based on an individual’s propensity and history for harming others. Berman acknowledges that certain criminal procedure protections are weakened for felons–but not permanently.

Of course, a citizen’s constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime.  Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights.  Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties. However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than “responsible” in their behavior.

One big example is the right to vote for felons. The Supreme Court has upheld the denial of the right to vote for felons. This isn’t in the bill of rights, but it is pretty important (dare I say “fundamental”). In Romer v. Evans, the Court found the denial of this right appropriate.

Romer v. Evans, 517 U.S. 620, 634 (1996) (“To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable.”).

Beyond the right to vote, I think there are certain rights that are permanently weakened (albeit not forfeited) upon conviction (or even an accusation of a crime). As I noted in Social Cost, the right to bail, the right to a speedy trial are all influenced by a person’s previous misconduct. Further, an officer’s knowledge of a person’s criminal past can certainly figure into the calculus for reasonable suspicion or probable cause. In these cases, liberty can be deprived based on previous showings of dangerousness as long as certain procedures are followed.


The Court has recognized that “[a] jury hearing evidence of a defendantʹs demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee.”377 Although juries generally are not allowed to consider this evidence, judges are—and are just as likely to weigh the dangerousness of the actor when making certain decisions. The balancing of liberties and potential societal harm is most clearly seen in cases dealing with the right to bail378 and the right to a speedy trial.379 These threats, though latent, assume an air of criticality in light of the bad actor.

377. Kelly v. South Carolina, 534 U.S. 246, 253–54 (2002).

378. See United States v. Salerno, 481 U.S. 739 (1987) (addressing the right to bail).

379. Barker v. Wingo, 407 U.S. 514 (1972) (addressing the right to a speedy trial).

Yes, there is no permanent abandonment of the right, but if a person with a criminal conviction, or at least some serious accusations of previous crimes, comes before a magistrate, that past can and will be considered in determinations of bail.

The Court in Salerno recognized that “[w]hile the Government’s general interest in pre‐ venting crime is compelling, even this interest is heightened when the Government musters convincing proof that the ar‐ restee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community.”393 The Court balanced this concern with“[o]n the other side of the scale, . . . the individual’s strong interest in liberty.”394

When dangers to the community can be shown through a person’s priors (and you can be sure any competent prosecutor would bring these prior crimes to the attention of a magistrate), 8th Amendment interests in reasonable bail cant be weakened.

Likewise, when a judge is considering a defendant’s right to a speedy trial, the defendant’s possibility of flight and danger to the community are considered.

In Barker v. Wingo, the Court recognized these competing interests, noting that the right of “accused persons [to] be treated according to decent and fair procedures” needs to be balanced with certain “societal interest[s].”401 The infringement on individual liberty of those “in jail awaiting trial has a detri‐ mental impact on the [defendant]. It often means loss of a job; it disrupts family life; and it enforces idleness.”402 In short, “time spent in jail is simply dead time.”403 On the other front, the social costs associated with the delay “enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the sys‐ tem.”404 Further delays may provide defendants who are “awaiting trial . . . an opportunity to commit other crimes,”405 as “the longer an accused is free awaiting trial, the more tempt‐ ing becomes his opportunity to jump bail and escape.”406

Both of these examples, broadly speaking, feed into the framework of the Constitutionality of Social Cost. Rights are weakened–through less rigorous process–based on a person’s propensity for violence. For that reason, in a post analyzing social cost in Ezell, I was somewhat critical of Judge Sykes’ focusing solely on whether a person was law-abiding. The focus should be, more broadly, on whether the person has a propensity for violence; is this person one who likely will hurt someone else with this gun, and what reason do we have to think this is the case?

The bifurcation I propose is based on the individual’s propensity for violence (pp. 91-95).

For “law‐abiding, responsible citizens,” the burden rests with the state to justify the deprivation of the liberty interest (strict scrutiny). For those who have shown a propensity for violence (and given the state a reason to be cautious), the burden rests with the individual to show why a categorical ban (such as under 922(g)(9) does not apply).

Although the statutes at issue in Skoien and other cases considering the rights of former felons to possess arms may lend themselves to a categorical approach,547 the statues at issue in McDonald and Heller denied arms to people who gave no indication that they would use the guns for harm. In such cases, the burden should fall on the State. (pp 94-95). . . .

A dividing line between those without a proven propensity for violence and those challenging rights rescinded as a result of violence enables the courts to alter based on this criterion who bears the burden of proving or disproving the threat of harm, and what level of judicial scrutiny is appropriate.

I don’t think this bifurcation would render the Second Amendment totally separate from constitutional norms. Like with the right to bail, or the right to a speedy trial, those who have shown a propensity for violence would bear a burden–and a steep burden at that–of showing they should be entitled to this presumption of liberty. I can’t imagine a convicted felon obtaining bail if brought before a magistrate following an arrest. There will be concerns the felon could harm his community. Likewise, I think it would be a far stretch for a felon to petition the state to obtain a firearm, and obtain one. Yet, both rights require process–some process, whereby the felon can seek to vindicate his rights (even if these processes are likely to be unsuccessful. The key difference, is this process is less rigorous for those with this propensity for violence.

In contrast, for those who have demonstrated a propensity for harm and are likely to inflict said harm in the future—such as violent felons—the burden should rest with the felon. Like the defendants in Salerno and Wingo, the burden would rest with the accused to demonstrate he does not pose a threat. This is not to say that felons of all stripes should be perpetually dis‐ armed, as the very nature and number of felonies has proliferated to include many types of non‐violent crimes537—crimes that say nothing about the defendant’s propensity for harming others (Martha Stewart for example).538 This burden is not insurmountable, but the individual must show that he no longer poses such a threat. Even the National Rifle Association is in favor of limiting firearm ownership to law‐abiding citizens.539 This limiting principle would assuage concerns on both sides of the issue, and provide the Court with a judicially manage‐ able standard to balance liberty and social costs.

Putting aside the difference in phrasing,  I think Judge Sykes split the difference quite well in Ezell with the separation between “law-abiding citizens,” and those with a propensity for violence (they frequently will overlap). A previous 7th Circuit precedent, Skoien, found that  18 U.S.C. 922(g)(9)–which prohibits the possession of firearms by persons convicted of a domestic‐violence misdemeanor–is constitutional. In contrast, the ban of all firming ranges in question in Ezell, applied to “law‐abiding, responsible citizens” was unconstitutional.

One important point: These weakening of rights for Bond and Speedy Trial are not complete forfeitures of the right, but neither is Skoien (even some process exists whereby an applicant can petition–almost always unsuccesfully–for the restoration of his right).

This bifurcation, which at first blush may seem unfamiliar, finds a long pedigree in our constitutional law jurisprudence–process is varied with respect to fundamental constitutional rights based on a person’s propensity for violence. So in this sense, our Second Amendment jurisprudence is part of normal constitutional law (which may not be as “normal” as we think).

Second, in response to Kopel, I don’t think that the Second Amendment is part of normal constitutional law–yet, largely for the reasons discussed in Social Cost. Most obviously, until the Supreme Court adopts the 7th Circuit’s Skoien/Ezell framework, it only helps people in a Illinois and Wisconsin (which  are 2 states without a right to keep and bear arms provision in the state Constitution Update: I originally wrote those were the only two but that is in error), and Indiana. But putting that aside, there are several aspects of Heller and McDonald that the majorities left open that make this right different from all other rights.

Simply put:

Under our current Second Amendment jurisprudence people who have shown no propensity for violence may be denied the exercise of their constitutional right without any specific rea‐ son, based solely on legislative judgments grounded on dis‐ puted statistics499 that show a person with a firearm may be likely to engage in violence.500 This ex ante deprivation of liberty with restrained judicial oversight is unprecedented.

In the Constitutionality of Social Cost, I divide Supreme Court precedents concerning the balance of individual liberty and social costs (negative externalities) into 3 categories.

First, when a harm or threat to society is imminent, the courts permit greater infringements of individual liberty, with minimal, if any judicial oversight.  (Unlawful incitement to imminent violence under Brandenburg, Fighting Words under Chaplinsky, and the Public Safety Exception to Miranda and exigent Circumstances).

Second, when a threat is not yet imminent, but a person’s previous misconduct reveals a pro‐ pensity towards future violence, the courts permit an infringement of individual liberties, but mandate certain forms of judicial oversight.314 (Right to Bail and Right to Speedy Trial, see supra)

Third, when a threat is cognizable, but not necessarily imminent, the courts permit infringement, but with greater judicial scrutiny.315 (The Exclusionary Rule and its Good Faith Exception and Miranda)

The Second Amendment falls into what I see as a fourth, and distinct category:

In this fourth category, even if a threat is not cognizable, nor is it imminent, and the anticipated actor presents no pro‐ pensity for danger, and the proposed harm is based on em‐ pirical data of what may, or may not happen, courts can permit the infringement of the constitutional right.316 In no other context is a pre‐emptive infringement of a constitutional right permissible with such an attenuated relationship to pre‐ venting social costs, and such a minimal showing that the person whose rights are being infringed actually poses a dan‐ ger.

Merely seeking to obtain or carry a firearm does not present a cognizable harm or threat to society that is imminent.501 Deprivation of individual liberty requires more of a nexus with harm than disputed statistics of what crime may or may not happen, and empty labels like “felons and the mentally ill”502 are not always dispositive (a re‐ formed prior felon or a healed person previously diagnosed as mentally ill may no longer pose dangers to others).503

The majority failed to rebut a point that Justice Breyer made in both McDonald and Heller dissents–guns are dangerous, and because disputed ex ante statistics of what may happen tell us this, we should deprive this right. Contrary to Justice Breyer’s lone dissent in EMA, empirical studies are not sufficient to overcome fundamental constitutional rights.

Judge Sykes largely dismissed the City’s proffered statistics that beared no relationship to what actually may happen. I have written elsewhere about the Court’s balancing of social costs, liberty, and statistics. The Court would be well served to heed Justice Scalia’s comment to Justice Breyer made  during oral arguments in McDonald:

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 sidesaysa million people killed by guns. Chicago says that their—their gun law has saved hundreds, including—and they havestatistics—including lots of women in domestic cases. Andthe other side disputes it. This is a highly statistical matter.. . . .

JUSTICE SCALIA: There’s a lot of statistical disagreement onwhether 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’tresolve questions like that on the basis of statistics, do we?

So the Second Amendment is similar to other rights, and different from other rights. While I recognize the utility of comparisons of the First and Second Amendment, my approach is more holistic–compare it 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.

The exercise of all liberty interests has negative externalities and social costs. Recognizing, and understanding this, is the first step towards embracing the Second Amendment.

Cross-Posted at ConcurringOpinions.com.