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The Fourth Circuit in UNITED STATES v. MASCIANDARO, in somewhat of a split opinion, applied intermediate scrutiny to affirm the conviction of a person arrested with a loaded firearm in a National Park in Alexandria, Virginia. Judge Niemayer wrote for the Court, except for one portion, which Judge Wilkinson, joined by a senior District Judge sitting by designation, departed. That part of the opinion, discussing whether it was appropriate to reach at issues the Court in Heller left unresolved was appropriate, was seriatim.

From the beginning of the Court’s opinion:

Thus, in resolving Masciandaro’s constitutional challenge, we will begin with a discussion of Heller’s holding and then proceed to address, seriatim, the scope of the Second Amendment right to keep and bear arms; the scrutiny that is applied in determining whether a regulation of firearms in national parks is justified; the question of whether a national park is a “sensitive place” where prohibiting firearms is a presumptively lawful regula- tory measure; and the application of our conclusions to Mas- ciandaro’s circumstances. … The upshot of these landmark decisions is that there now exists a clearly-defined fundamental right to possess firearms for self-defense within the home. But a considerable degree of uncertainty remains as to the scope of that right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation.

The Court, following their precedent in U.S. v. Chester applied intermediate scrutiny:

We have held that intermediate scrutiny should be applied when reviewing a Second Amendment challenge to 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by a person convicted of a misdemeanor crime of domestic vio- lence. United States v. Chester, 628 F.3d 673, 677 (4th Cir. 2010).

The Court addressed the fact that the defendant had no criminal record:

In the case before us, Masciandaro was a law-abiding citi- zen at the time of his arrest, without any criminal record, whereas in Chester, the defendant was a domestic violence misdemeanant. On the other hand, Chester was in his home, where the core Heller right applies, whereas Masciandaro was in a public park. These different contexts might call for differ- ent judicial approaches. See United States v. Yancey, 621 F.3d 681, 683 (7th Cir. 2010). Indeed, as has been the experience under the First Amendment, we might expect that courts will employ different types of scrutiny in assessing burdens on Second Amendment rights, depending on the character of the Second Amendment question presented. Under such an approach, we would take into account the nature of a person’s Second Amendment interest, the extent to which those inter- ests are burdened by government regulation, and the strength of the government’s justifications for the regulation. See United States v. Skoien, 587 F.3d 803, 809 (7th Cir. 2009), vacated, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert. filed, No. 10-7005 (U.S. Oct. 12, 2010).

I thought Heller rejected any freestanding balancing tests? This is what I described in the Constitutionality of Social Cost as citing Scalia but relying on Breyer. This is what the Skoien court did, and now the Fourth Circuit adopted this standard.

The Court tried to wedge history into the analysis, as an almost secondary thought, and it is not particularly useful, or persuasive:

Since historical meaning enjoys a privi- leged interpretative role in the Second Amendment context, see id. at 2816; Skoien, 587 F.3d at 809, this longstanding out-of-the-home/in-the-home distinction bears directly on the level of scrutiny applicable. Indeed, one of the principal cases relied upon in Heller upheld a state concealed carry ban after applying review of a decidedly less-than-strict nature. See Nunn v. State, 1 Ga. 243, 249 (1846)

The Court notes that laws burdening the “core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” This is the precise dynamic I identified in the Constitutionality of Social Cost. Concerns for social cost (public safety interests) are weighed against the individual liberty interests.

Further, the Court noted that to apply strict scrutiny would make it harder for law enforcement to keep people safe:

Were we to require strict scrutiny in circumstances such as those presented here, we would likely foreclose an extraordi- nary number of regulatory measures, thus handcuffing law- makers’ ability to “prevent[] armed mayhem” in public places, see Skoien, 614 F.3d at 642, and depriving them of “a variety of tools for combating that problem,” Heller, 128 S. Ct. at 2822. While we find the application of strict scrutiny important to protect the core right of the self-defense of a law-abiding citizen in his home (“where the need for defense of self, family, and property is most acute,” Heller, 128 S. Ct. at 2817), we conclude that a lesser showing is necessary with respect to laws that burden the right to keep and bear arms outside of the home.

The Court, citing Salerno, focused on the state’s ability to keep people safe:

In reaching this result, we conclude first that the govern- ment has a substantial interest in providing for the safety of individuals who visit and make use of the national parks, including Daingerfield Island. Although the government’s interest need not be “compelling” under intermediate scrutiny, cases have sometimes described the government’s interest in public safety in that fashion. See Schenck v. Pro-Choice Net- work, 519 U.S. 357, 376 (1997) (referring to the “significant governmental interest in public safety”); United States v. Salerno, 481 U.S. 739, 745 (1987) (commenting on the “Fed- eral Government’s compelling interests in public safety”). The government, after all, is invested with “plenary power” to protect the public from danger on federal lands under the Property Clause. See U.S. Const. art. IV, § 3, cl. 2 (giving Congress the power to “make all needful Rules and Regula- tions respecting the Territory or other Property belonging to the United States”); Utah Div. of State Lands v. United States, 482 U.S. 193, 201 (1987); Camfield v. United States, 167 U.S. 518, 525 (1897); see also United States v. Dorosan, 350 Fed. App’x 874, 875 (5th Cir. 2009) (per curiam) (noting that U.S. Postal Service is authorized under the Property Clause to  exclude firearms from its property); Volokh, Implementing the Right for Self-Defense, 56 U.C.L.A. L. Rev. at 1529-33. As the district court noted, Daingerfield Island is a national park area where large numbers of people, including children, congregate for recreation. See Masciandaro, 648 F. Supp. 2d at 790. Such circumstances justify reasonable measures to secure public safety.

Don’t forget about the children!

Based on this social cost calculus, the Court applied intermediate scrutiny (from Ward v. Rock Against Racism).

Accordingly, we hold that 36 C.F.R. § 2.4(b) will survive Masciandaro’s as-applied challenge if it satisfies intermediate scrutiny — i.e., if the government can demonstrate that § 2.4(b) is reasonably adapted to a substan- tial governmental interest. See Chester, 628 F.3d at 683; cf. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny to content-neutral time, place, and manner restrictions on speech); Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989) (applying intermediate scrutiny to commercial speech in light of its “subordinate position in the scale of First Amendment val- ues”).

The Court opined whether the parking lot the Defendant was arrested in (which was within a National Park) should be considered a “sensitive place.”

These arguments raise the question whether the “sensitive places” doctrine limits the scope of the Second Amendment or, instead, alters the analysis for its application to such places . . . Because of the relation between the first statement and the examples, one might con- clude that a law prohibiting firearms in a sensitive place would fall beyond the scope of the Second Amendment and therefore would be subject to no further analysis. But the Court added a footnote to its language, calling these regulatory measures “presumptively lawful.” Id. at 2817 n.26 (emphasis added). The Court’s use of the word “presump- tively” suggests that the articulation of sensitive places may not be a limitation on the scope of the Second Amendment, but rather on the analysis to be conducted with respect to the burden on that right.

After citing standards from other courts, the Fourth Circuit declined to resolve this issue:

We need not, however, resolve the ambiguity in the “sensi- tive places” language in this case, because even if Dainger- field Island is not a sensitive place, as Masciandaro argues, 36 C.F.R. § 2.4(b) still passes constitutional muster under the intermediate scrutiny standard.

Here is the crux from Niemayer’s separate opinion:

I would reject Masciandaro’s argument that his car, even when he slept in it frequently, was his “home” so as to fall within the core protection articulated in Heller. … Masciandaro also argues that he possessed a constitutional right to possess a loaded handgun for self-defense outside the home. I would agree that there is a plausible reading of Heller that the Second Amendment provides such a right, at least in some form. … But I would not conclude that the right is all-encompassing such that it extends to all places or to all persons, as the Supreme Court has explicitly recognized. See Heller, 128 S. Ct. at 2816-17. The complex question of where it may apply outside the home, and what persons may invoke it, is, however, not one that we need to fully answer, because it appears suffi- ciently clear that, in this case, Masciandaro’s claim to self-defense — asserted by him as a law-abiding citizen sleep- ing in his automobile in a public parking area — does impli- cate the Second Amendment, albeit subject to lawful limitations. And any analysis of it, therefore, requires review of the government’s interest in regulating firearms through 36 C.F.R. § 2.4(b) under the appropriate level of scrutiny, which we now address.*

Here is a chunk from Wilkinson’s seriatim opinion:

On the question of Heller’s applica- bility outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State, 10 A.3d 1167, 1177 (Md. 2011) (“If the Supreme Court, in [McDonald’s] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”); see also Sims v. United States, 963 A.2d 147, 150 (D.C. 2008).

There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that “self-defense has to take place wherever [a] person happens to be,” Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a

Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009), appears to us to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities. And even that may not address the place of any right in a private facility where a public officer effects an arrest. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.

There is no such necessity here. We have no reason to expound on where the Heller right may or may not apply out- side the home because, as Judge Niemeyer ably explains, intermediate scrutiny of any burden on the alleged right would plainly lead the court to uphold the National Park Ser- vice regulation.

In classic WIlkinson minimalism, he praises judicial restraint, and constitutional avoidance:

The trend toward constitutional avoidance seems, finally, to be taking hold. Ashwander, at long last, is back. See Ash- wander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., con- curring). . . .  Sometimes saying a little less, rather than a little more, is a nice way to discharge our primary responsibility to the par- ties before us of deciding their case. At other times, of course, the need for clarity and guidance in future cases is paramount, but in this instance we believe the most respectful course is to await that guidance from the nation’s highest court. There simply is no need in this litigation to break ground that our superiors have not tread. To the degree that we push

the right beyond what the Supreme Court in Heller declared to be its origin, we circumscribe the scope of popular gover- nance, move the action into court, and encourage litigation in contexts we cannot foresee. This is serious business. We do not wish to be even minutely responsible for some unspeak- ably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponen- tially as one moved the right from the home to the public square.

If ever there was an occasion for restraint, this would seem to be it. There is much to be said for a course of simple cau- tion.

I will blog more about Wilkinson’s position later, as this directly implicates my article.

 

Eugene Volokh links to an opinion from the New York County Supreme Court (trial court in Manhattan) on felon gun possesion. Joseph Caputo applied to keep a handgun in his home. Ten years ago, Caputo was charged with several violent felonies (details here and here). His permit was denied, notwithstanding the fact that he has not committed any crime since his incarceration, he was hired by the New York City Police Department, where he was able to keep a gun, and has generally kept himself out of trouble.

The Court did not reach the Second Amendment issue.

Rather, it found that the Commissioner failed to conduct a thorough review of Caputo’s character and fitness. Most interesting, for my purposes at least, is the discussion of Caputo’s current propensity for violence, and how that should affect the award process.

I further make this determination because the Department seems to have made its decision wearing blinders. The Director ignored Caputo’s unblemished record both before and after the 1999 incident. This would include his honorable service in the Marines, and his almost five years as a New York City Police Officer without any problem, until this complaint. After his leaving the Force, he joined the NYC Sanitation Department, rising to the level of Supervisor of 30–40 men. Is it not arbitrary to completely ignore these parts of one’s life and is it not clear that they speak to character as well?

And most significantly, the Director totally ignored the significance of the 2009 granting of Caputo’s application for a Certificate of Relief from Disabilities, which can only be granted and was granted here at the time his sentence of Probation was completed. At that time, the sentencing judge had the opportunity to review the applicant’s activities and character since the time he took his plea. The Director also ignored the actual words of this Certificate “relieving the holder of all disabilities….”

Here, the Court finds that even though Caputo had a dangerous past, he ha shown that his propensity for violence is significantly less today, and perhaps, the bar on firearm ownership should not be as insurmountable.

In the Constitutionality of Social Cost (I will have a draft up in the next few days), I address the issue of the bar on felons keeping and bearing arms as a function of the actor’s current propensity for violence:

This is not to say that felons of all stripes should be perpetually disarmed, as the very nature and number of felonies has proliferated to criminalize many types of non-violent crimes—crimes that say nothing about the defendant’s propensity for harming others. This burden, is not insurmountable, but must show that the individual no longer poses such a threat. Even the National Rifle Association is in favor of limiting firearm ownership to law-abiding people, and not violent felons. This limiting principle would assuage concerns on both sides of the issue, and provide the Court with a judicially manageable standard to balance liberty and social costs.

This framework provides the courts with a judicially manageable standard and a limiting principle. A dividing line between those without a proven propensity for violence and those whose rights have been rescinded as a result of exercises of violence enables the Courts to know who bears the burden of infringing the right, and what level of judicial scrutiny is appropriate.

If a person shows he is no longer a threat, then the burden shifts to the state.

The Court in this case did not address who bears the burden, but I believe the framework I propose may be palatable to Judges.

Interestingly, counsel first argues that the United States Supreme Court’s recent interpretation of the Second Amendment to the United States Constitution in two cases, District of Columbia, et al. v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. Chicago, 138 S. Ct. 1317 (2009), changes an individual’s possession of a gun from a “privilege” to a “right”, which he believes shifts the burden to the Agency to disprove eligibility, whereas before, the applicant had the burden of proving his eligibility.

I am not prepared at this time to accept this interpretation, but I am prepared to say that the decision here was arbitrary and capricious. I base this conclusion on the facts, concerning Caputo’s past and present along with cases cited by counsel showing that prior felons in New York have been granted handgun licenses by the Department. This refutes respondent’s claim that such a conviction is an absolute bar.

This is similar to the position that Judge Sykes adopted in Skoien, and several other Judges have suggested in dicta. From my article:

[1] U.S. v. Duckett (9th Cir. Dec. 17, 2010)(Ikuta, J., concurring)(“Although I join the majority in full were I not bound by United States v. Vongxay, 594 F.3d 1111 (9th Cir.2010), I would examine whether, notwithstanding the Supreme Court’s dicta in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 2816–17 (2008), the government has a substantial interest in limiting a non-violent felon’s constitutional right to bear arms. See United States v. Williams, 616 F.3d 685, 693 (7th Cir.2010) (“[W]e recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.”); United States v. Skoien, 614 F.3d 638, 645 (7th Cir.2010) (en banc) (Sykes, J., dissenting); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009) (Tymkovich, J., concurring). Indeed, other than felon disenfranchisement laws, which are grounded in § 2 of the Fourteenth Amendment, see Richardson v. Ramirez, 418 U.S. 24, 54 (1974), I can think of no other constitutional disability that applies only to a “certain category of persons … [who] may be excluded from ever exercising the right.” Skoien, 614 F.3d at 650 (Sykes, J., dissenting)”).Why Can’t Martha Stewart Own a gun

It strikes me that challenges to laws touching on the Second Amendment take two forms. The first type–like the suits in Heller and McDonald–seeks to challenge laws restricting access to firearms. For example, the law in the District of Columbia banning the possession of hand guns or bans on the right to carry arms outside the home. While the analogy is not precise, I see these laws as akin to prior restraint. They prevent the exercise of a constitutional right, presumably, to prevent certain social harms (violence, crime, etc.).

The second type of challenges deal with a person who did something wrong. In these cases, a person used or possessed a firearm in violation of some statute (like “longstanding prohibitions”), or is seeking the restoration of his Second Amendment rights following a conviction of some crime (such as Skoien).

Under Heller/McDonald, both of these cases are treated identically. A person with no criminal record, and who is a fine upstanding citizen–like Dick Heller or Otis McDonald–is treated in the same light as an unsavory armed and dangerous felon (or an armed misdemeanant).

This strikes me as wrongheaded. My research on the constitutionality of social cost shows that an implicit limitation on the Court’s Second Amendment jurisprudence is the desire to limit violence stemming from firearm ownership. The former group is much less likely to cause violence than the latter. The costs are not equivalent.

Remedies generally are ex-post (exclusion of evidence, testimony obtained in violation of miranda, obscenity prosecution, etc). Regulations on the right to keep and bear arms, in contrast, are ex ante. They are based on statistics of posisble harms which may or may not happen.

Further, granting rights to people like Heller and McDonald may generate concerns that dangerous felons who challenge convictions will prevail in future cases. Concerns about a slippery slope towards the second type of challenge effectively limit the first type of challenges.

These two types are not the same, and they should be treated differently.

Second Amendment challenges should be bifurcated. The framework for ex ante licensing should be separate from framework for ex post punishment of using guns for violence.

If standard A was applied to challenges like Heller and McDonald, and standard B was applied to challenges like Skoien, the scope of A would become broader and more protecting of liberty, while the scope of B can be more narrowly tailored to address the harm at hand.

Further, to continue my attempt to equate the Second Amendment to other provisions in our Constitution, I think it makes sense to look at the 4 questions:

• Who — Who can bear arms? (an upstanding citizen with no criminal record of an unsavory criminal)
• What — What type of arms can a person bear?
• Where — Where can a person keep arms? (sensitive place, the home similar to the “place” in time-place-manner)
• When — When would a person be permitted to bear arms, or more specifically, after what type of delay would a person be permitted to own arms? (waiting period, etc)
• Why — Why is the right being restricted? This goes to who has the burden to regulate the right.

I am making very good progress on this paper. I should have more soon.

In United States v. Chester, the Fourth Circuit remanded a case considering the constitutionality of Section 922(g)(9) permanent disarmament of all domestic violent misdemeanants.

From Chief Judge Traxler’s opinion:

The sole issue presented in this appeal is whether William Samuel Chester’s conviction for illegal possession of a firearm under 18 U.S.C. § 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We vacate the decision below and remand for further proceedings….

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants.  The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal.  Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond.  Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.

Here is how the Court characterized the “presupmtively lawful” dicta from Heller.

Federal felon dispossession laws, for example, were not on the books until the twentieth century, and the historical evidence and scholarly writing on whether felons were protected by the Second Amendment at the time of its ratification is inconclusive. But even if the listed regulations were not historical limitations on the scope of the Second Amendment, the Court could still have viewed the regulatory measures as “presumptively lawful” if it believed they were valid on their face under any level of means-end scrutiny applied.5

5 Other courts have found Heller’s list of “presumptively lawful” firearm regulations susceptible to two meanings. See United States v. Marzzarella, 614 F.3d 85, 91 (3rd Cir. 2010) (“We recognize the phrase ‘presumptively lawful’ could have different meanings under newly enunciated Second Amendment doctrine. On the one hand, this language could be read to suggest the identified restrictions are presumptively lawful because they regulate conduct outside the scope of the Second Amendment. On the other hand, it may suggest the restrictions are presumptively lawful because they pass muster under any standard of scrutiny.”); Skoien, 587 F.3d at 808 (“[I]t is not entirely clear whether this language should be taken to suggest that the listed firearms regulations are presumed to fall outside the scope of the Second Amendment right as it was understood at the time of the framing or that they are presumptively lawful under even the highest standard of scrutiny applicable to laws that encumber constitutional rights.”).

The Court places the burden on the government, in contrast with the burden the 7th Circuit En Banc court placed on the defendant. The Court relies on the Third Circuit opinion in Marzzarella and Judge Sykes’s now-vacated panel opinion in Skoien.

In view of the fact that Heller ultimately found the District’s gun regulations invalid “under any standard of scrutiny,” it appears to us that the Court would apply some form of heightened constitutional scrutiny if a historical evaluation did not end the matter. The government bears the burden of justifying its regulation in the context of heightened scrutiny review; using Heller’s list of “presumptively lawful regulatory measures” to find § 922(g)(9) constitutional by analogy would relieve the government of its burden.

Thus, a two-part approach to Second Amendment claims seems appropriate under Heller, as explained by the Third Circuit Court of Appeals, see Marzzarella, 614 F.3d at 89, and Judge Sykes in the now-vacated Skoien panel opinion, see 587 F.3d at 808-09. The first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Id. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. See Heller, 128 S. Ct. at 2816. If it was not, then the challenged law is valid. See Marzzarella, 614 F.3d at 89. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. See id. Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law.

In a concurring opinion, Judge Davis thought this issue was solved clearly by the 7th Circuit’s en banc opinion in Skoien.

In light of the highly persuasive decision of the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert. pending, sustaining the constitutionality of 18 U.S.C. § 922(g)(9), the district court should have no difficulty in concluding that the application of § 922(g)(9) to offenders such as Chester passes Second Amendment scrutiny, exactly as district courts have already concluded. See United States v. Smith, 2010 WL 3743842 (S.D.W. Va. Sept. 20, 2010) (applying Skoien and sustaining statute); United States v. Staten, 2010 WL 3476110 (S.D.W. Va. Sept. 2, 2010) (same)….

I can foresee no difficulty for the district court in sustaining the constitutional validity of the application of § 922(g)(9) in this case.  Nevertheless, under the circumstances of the law’s understandably slow evolutionary course of development, I am content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.

For my criticisms of the Skoien en banc opinion, and my praise of Judge Sykes’s dissenting opinion (see here, here, and here).

H/T Sentencing Blog.

Liberty is costly; but restraining liberty can be even more costly. This is the most recent post in my series of posts on the constitutionality of social costs.

In The Problem of Social Cost, Ronald Coase recognized that limiting the rights of A to protect B creates a “problem of a reciprocal nature.” Coase wrote:

The question is commonly thought of as one in which A inflicts harm on B and what has to be decided is: how should we restrain A? But this is wrong. We are dealing with a problem of a reciprocal nature. To avoid the harm to B would inflict harm on A. The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?

Let’s rephrase this argument in terms of the Second Amendment. All of the cases that considered the Second Amendment—primarily Heller and McDonald—primarily view the limitations on the right to keep and bear arms in terms of restraining the harm which A (the gun owner) inflicts on B (the victim of the gun owner). Like Coase, I think this limited inquiry is wrong. If the Heller Court is right—and until 5 Justices say otherwise, I will assume it is—and the “core lawful purpose of [the Second Amendment is] self-defense,” upholding certain types of gun control laws “to avoid the harm to B[,] would inflict harm on [the constitutional rights and liberties of] A.” The scales of justice have two balanced counterweights. “The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?” Is the right to be free from fear of harm greater than the exercise of one’s constitutional right to keep and bear arms?

This is the question of the constitutionality of social cost. This is a question that courts only consider cursorily when looking at the constitutionality of gun control restrictions. Further, the framework with which the Courts have used to look at this question is different and distinct from any harm-based analyses or other balancing tests used for other constitutional rights.

Most of Coase’s article focuses on issues of contract and tort, nuisance law in particular. When considering nuisance laws, generally speaking, when the value of A harming B is less than the value of B harming A, A should be permitted to engage in the conduct. However, when the value of A harming B is greater than the value of B harming A, the conduct is a nuisance, and the law mandates that it should be abated. Coase relies on Prosser:

Thus, to quote Posser on Torts, a person may make use of his own property or . . . conduct his own affairs at the expense of some harm to his neighbors. He may operate a factory whose noise and smoke cause some discomfort to others, so long as he keeps within reasonable bounds. It is only when his conduct is unreasonable, in the light of its utility and the harm which results [italics added], that it becomes a nuisance . . . . As it was said in an ancient case in regard to candle-making in a town, “Le utility del chose excusera le noisomeness del stink.” The world must have factories, smelters, oil refineries, noisv machinerv and blasting, even at the expense of some inconvenience to those in the vicinity and the plaintiff may be required to accept some not unreasonable discomfort for the general good.

This view only considers one side on the scales of Justice. Coase noted:

The problem which we face in dealing with actions which have harmful effects is not simply one of restraining those responsible for them. What has to be decided is whether the gain from preventing the harm is greater than the loss which would be suffered elsewhere as a result of stopping the action which produces the harm.

Courts do this type of balancing, often implicitly:

It was argued that the courts are conscious of this and that they often make, although not always in a very explicit fashion, a comparison between what would be gained and what lost by preventing actions which have harmful effects.

This is largely the type of analysis the Supreme Court has applied to the Second Amendment, essentially treating the right to keep and bear arms as a nuisance that should be tolerated as long as its harmful effects do not exceed its beneficial effect. I have argued in the past that Breyer’s Heller and McDonald dissents essentially treat the Second Amendment as privilege with no constitutional value. This is flawed. Considering the Second Amendment as a nuisance that can be abridged because it may result in harm is troubling. Viewing his dissent in Coasean terms helps to illuminate the value, or lack thereof, he assigns to this right.  A right is not a nuisance that should be merely tolerated. It is a bulwark of liberty that should be celebrated.

If the Second Amendment is in fact an individual constitutional right, then it should not be treated as if it were a nuisance that can be infringed whenever Judges think it is dangerous. No other constitutional right is held to such a flimsy standard. The instrinsic and inherent value in a Constitutional right places it on a different plane with respect to cost-benefit analysis. As I have documented in other posts, a careful look at the constitutionality of social cost in the contexts of the First, Fourth, and Fifth Amendment reveals that the Courts are much less inclined to look into the possible harm A may cause B when construing whether B can limit the rights of A.

In a future post, I will tie together the constitutionality of social costs in the contexts of the First, Second, Fourth, and Fifth Amendments. I will also take a look at Joseph Blocher’s article on Heller, titled Categoricalism and Balancing in First and Second Amendment Contexts. That piece has some interesting insights to my work. I will also work in how courts post-Heller have looked at the Second Amendment, particularly United States v. Skoien, both the panel and en banc opinions form the 7th Circuit, with a focus on Judge Sykes’s insightful dissent. Ultimately, in my goal to liveblog my law review articles, I will stitch together the several posts in this category into an essay, which would be ready by the end of this month. Thank you to my readers for all of the feedback.