The Constitutionality of Social Cost
Blackman, Josh, Harvard Journal of Law & Public Policy
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
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. …