The Constitutionality of Social Cost

Article excerpt

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. …