INTRODUCTION I. LIBERTY AND EXTERNALITIES--A COASEAN VIEW OF FREEDOM II. THE SUPREME COURT AND THE SECOND AMENDMENT A. District of Columbia v. Heller and McDonald v. City of Chicago B. Breyer's Balancing Test C. Scalia's Pragmatic Dicta III. THE LONELY SECOND AMENDMENT A. Is the Second Amendment Unlike All Other Rights? B. Faux-Restraint and Judicial Engagement C. Federalism and the Locational Constitutional Rights Clause 1. States and Laboratories for Experimentation of Constitutional Rights 2. Locational Constitutional Rights IV. THE CONSTITUTIONALITY OF SOCIAL COST AND EQUALITY OF RIGHTS A. Category I: Imminent Harm 1. Unlawful Incitement to Imminent Violence 2. Fighting Words 3. Public Safety Exception to Miranda and Exigent Circumstances B. Category II: Latent Threat from a Dangerous Actor 1. Right to Bail 2. Right to a Speedy Trial C. Category III: Cognizable Threat That Is Not Imminent 1. The Exclusionary Rule and its Good Faith Exception 2. Miranda v. Arizona V. A SECOND AMENDMENT FRAMEWORK THAT BALANCES SOCIAL COSTS AND LIBERTY A. Unprecedented Analysis B. The What, Where, When, Who, and Why of the Second Amendment C. Bifurcating Second Amendment Challenges based on Social Cost and Propensity for Harm D. Reject Longstanding Prohibitions that Conflict with Heller CONCLUSION INTRODUCTION
During the Passover Seder, it is customary in the Jewish faith for the youngest child at the table to ask a series of four questions that begins with, "Why is this night different from all other nights?" To understand the future of the Second Amendment, one must ask, "Why is this right different from all other rights?" In District of Columbia v. Heller (1) and McDonald v. City of Chicago, (2) the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently from other constitutional rights.
At first blush, this may make sense. Guns can be dangerous if misused. (3) As Justice greyer noted in McDonald, "the carrying of arms ... often puts others' lives at risk." (4) Because a "primary concern of every government [is] a concern for the safety and indeed the lives of its citizens," (5) when construing the Second Amendment, it would seem straightforward that courts take into consideration the potential social cost, or presumed negative externalities, of private ownership of firearms. (6) So obvious, in fact, that courts and pundits perfunctorily gloss over the constitutionality of limiting liberty in order to minimize social costs. This judicial oversight is glaring, and it has contributed in no small part to the currently disjointed state of Second Amendment jurisprudence.
Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities. The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. (7) The freedom of the press permits the media to report on matters that may harm national security. (8) The freedom of association allows people to congregate to advocate for certain types of violence. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. (9) Inculpatory evidence seized in violation of this right is generally inadmissible during trial, (10) permitting crimes to go unpunished. Likewise, a violation of a person's Miranda rights renders certain confessions--even an uncoerced inculpatory confession--inadmissible. (11)
Procedural rights during the criminal trial--including the right to grand jury indictment, the right against self-incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury--all make the prosecution of culpable defendants significantly harder. (12) The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. (13) The right to non-excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial. The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. (14) The right of habeas corpus ensures that a person--however dangerous--cannot be detained indefinitely without proper procedures. (15) Liberty's harm to society takes many forms--not just from the exercise of the right to keep and bear arms. (16) These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a "primary concern of every government [is] a concern for the safety and indeed the lives of its citizens," (17) this concern is not constitutionally sacrosanct.
This Article explores the constitutional dimensions of the social cost of liberty. Although some have suggested that courts should look to the First Amendment for interpretational guidance for the Second Amendment, (18) I propose a more holistic approach: look 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.
With regard to how courts should develop the right, I do not hold the key. Judges will invariably do what judges do. My aim for this Article is to counsel others to consider the Second Amendment in a different light than that in which some previous scholars and court opinions have cast it. All rights are subject to certain balancing tests. Yet the scales used to balance the Second Amendment should be calibrated similarly to scales used to consider other rights.
This Article proceeds in five parts. Part I explores a Coasean view of freedom that balances liberties and externalities, and introduces the concept of the constitutionality of social cost. Extending a principle from Ronald Coase's canonical article, The Problem of Social Cost, (19) this concept recognizes that exercising all forms of liberty yields both positive and negative social costs. For over a century, the Court has explicitly, and in many cases, implicitly, balanced this reciprocal relationship when protecting individual liberties and society from harms. (20) Even though they are dangerous, these social costs take on a constitutional dimension, and consequently demand judicial protection--or more precisely, judicial toleration of the negative externalities, notwithstanding legislative findings to the contrary in many cases. Viewing the Second Amendment in these Coasean terms helps to illuminate the value, or lack thereof, the Supreme Court has assigned to this right. This part introduces the notion of the constitutionality of social cost, and recognizes how the Court balances liberty and social costs.
Part II provides an overview of the competing views of social cost in Heller and McDonald, focusing on Justice Breyer's balancing test and Justice Scalia's pragmatic dicta. In Heller, Justice Scalia showed "aware[ness] of the problem of handgun violence in this country" in holding that "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." (21) In McDonald, Justice Alito found that the Second Amendment, like "[a]ll of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes" have "controversial public safety implications." (22) Although these opinions ostensibly discount the role that illegal gun violence should play in construing the Second Amendment, (23) the holding and nebulous dicta in these cases reveal that pragmatic concerns trump any originalist or other rationales. Even though the Court rejects Justice Breyer's interest-balancing approach, the most significant portions of Heller for the lower courts are based on the same pragmatic--and not originalist--consideration of asserted social costs that may stem from gun ownership. This pragmatism reflects the same fear that animated Justice Breyer's dissent. The difference between the two opinions is one of degree, not of kind.
Part III considers the loneliness of the Second Amendment in the Bill of Rights and confronts many of the arguments of the dissenting Justices that the majority did not refute. Although the majority prevailed with respect to the historical narrative, it remains to be seen whether the Court's pragmatic dicta or the dissenter's pragmatism--which can be easily blurred together--will prevail in the lower courts. First I consider whether the "liberty interest[s]" protected by the Second Amendment are "dissimilar from those [the Court has] recognized in its capacity to undermine the security of others." (24) Are they "[u]nlike other forms of substantive liberty, [because] the carrying of arms ... often puts others lives at risk[?]" (25) The Second Amendment certainly presents "highly complex" issues and numerous unanswerable questions to which judges lack "comparative expertise." (26) Yet, the Court...