What do McDonald v. Chicago, Brown v. Plata, and Ashcroft v. al-Kidd have in common?
posted by Josh Blackman
In al-Kidd–beyond the relatively straightforward issue of qualified immunity–the primary dispute between Justice Scalia and Justice Ginsburg dealt with the pretextual 16-day detention of al-Kidd. This detention, which Justice Ginsburg labelled “harsh,” ostensibly deprived al-Kidd of his individual liberty interests protected by the Fourth Amendment, in order to secure testimony that would never be elicited, with the intent of keeping our post-9/11 society safe from terrorism.
In Plata, the Court decided that deplorable conditions in California prisons resulted in such an affront to individual liberty that 30,000+ prisoners must be released, and incidentally, society would bear the cost of the release of prisoners. Justice Alito in dissent chided Justice Kennedy for failing to give “substantial weight” to the public safety in approving the order.
In McDonald, both Justice Alito’s plurality opinion, and Justice Breyer’s dissenting opinion, agreed that the governmental interest in reducing the potential risk of danger from firearms should play some role in the constitutional calculus of the individual right to keep and bear arms. Justice Alito reassured proponents of strict gun control regimes that despite their “doomsday proclamations, incorporation [of the Second Amendment] does not imperil every law regulating fire‐ arms.”
So what is the common thread in these three cases: the Court’s recognition that liberty yields both positive and negative social costs. But what is different about these three cases: how the Court has addressed this balance of liberty and social costs differently in differing constitutional contexts. In some cases, the Court errs on the side of liberty. In other cases, the Court errs on the side of safety.
This seemingly obvious, but deeply unappreciated dynamic, conforms to a framework I identified, dubbed the Constitutionality of Social Cost (an application of Coase’s The Problem of Social Cost). I introduce this concept in an article forthcoming in the Harvard Journal of Law & Public Policy (available on SSRN). I will tease this idea further in future posts.
On that note, let me introduce myself. (In my best Troy McClure voice) Hi, I’m Josh Blackman. You may remember me from such blogging exploits as JoshBlackman.com, FantasySCOTUS, and Above The Law.
During my guest stint, I hope to blog about a number of items. In no particular order, I will delve deeper into Constitutionality of Social Cost; focus on some of the cool implications of FantasySCOTUS, and its predictive capabilities as a crowdsourced information market; and discuss some of my thoughts on the future of the legal profession and legal education, and the evolution towards the law classroom of tomorrow.
I will also chronicle my entry into the Law Prof “meat market” (For any interested Prawfs, I’m going on the market this fall, and my AALS material is available here). Plus, no June would be complete without end-of-term instant analyses of newly-released Supreme Court opinions.
I enjoy replying to comments, so feel free to push back and tell me where I’m wrong, or that I have no clue what I’m talking about. Thanks to Danielle and everyone at Concurring Opinions for letting me ply my trade at this new spot for a bit.
Crossposted at JoshBlackman.com.
June 1, 2011 at 12:17 am
Tags: The Constitutionality of Social Cost
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Responses (13)
Shag from Brookline - June 1, 2011 at 7:39 am
Which of these decisions may result in the greater negative social costs? Compare the number and power of guns (including their lobbyists) to a solo al-Kidd and 30,000 aging (mostly) men (who might legally be denied guns). Might giving people liberty also give them death?
Josh Blackman - June 1, 2011 at 8:01 am
Shag, nice Patrick Henry line. One of the things I hope to accomplish in my article, and I will blog about further, is how the propensity for violence of the actor contributes to the constitutional calculus. With respect to firearm laws, I suggest a bifurcation to provide different processes for those who have shown no propensity for harm (no criminal record) and those who have (some kind of violent criminal record). Certainly al-Kidd is a single individual, but the practice used against him was likely used against countless others who the state deemed a threat. With respect to Plata, it is somewhat disputed whether dangerous or non-dangerous prisoners will be released. Plus, you have to factor in the positive elements of liberty for each interest (something the Courts erratically do).
Shag from Brookline - June 1, 2011 at 8:28 am
I.e., we need a social cost/benefit analysis of individual liberty interests that might be impacted?
Josh Blackman - June 1, 2011 at 8:40 am
Shag, that’s part of it, though I don’t view it as an explicit cost/benefit analysis. Some judges are prone to find certain types of benefits and disregard other liberty interests in some cases, while others do the opposite in other cases. By framing the debate in the manner I do, I hope to clarify this calculus.
Shag from Brookline - June 1, 2011 at 10:00 am
I look forward to your calculus, hoping it adds to Larry Rosenthal’s (1) “Second Amendment Plumbing after Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs,” 41 Urban Law. 1 (2009), and (2) “Second Amendment Plumbing after McDonald: Exploring the Contradiction in the Second Amendment,” including his “Reply” to Prof. Malcolm, available at http://ssrn.com/abstract=1704722. I was especially impressed with the earlier article, which was quite lengthy in addressing social costs based upon various studies.
Brett Bellmore - June 1, 2011 at 12:32 pm
Considering that the relevant criminological literature scarcely supports the notion that infringing on the 2nd amendment brings safety benefits, it’s probably going to be more a case of giving people liberty also giving them life, at least on net.
Josh Blackman - June 1, 2011 at 12:36 pm
Brett, in my work I try to stay away from the competing empirical data. Frankly, for every statistics that says X, there is another statistic that says not X. My analysis is more holistic, and focuses on how the Courts treat various provisions of the Bill of Rights differently with respect to balancing individual welfare and safety.
Shag from Brookline - June 1, 2011 at 1:33 pm
Based upon his past comments on Second Amendment posts, I don’t think Brett agrees with even the minimal limitations that Scalia (in Heller) and Alito (in McDonald) dicta-ed. Brett’s ” … infringing on the 2nd amendment … ” lacks definition and his twisting of my twisting of Patrick Henry callously ends ” … at least on net.” Of course, 51% can be net, with 49% losing life.
Regarding holistic analysis vis-a-vis other Bill of Rights provisions, the nature of arms (presently guns are in vogue) is quite different from other rights. The Court’s decisions in Heller and McDonald will surely be extended well beyond the home perhaps resulting in a self-fullfilling prophecy that may require all (men, women, children) to keep and bear arms wherever.
Josh Blackman - June 1, 2011 at 1:36 pm
Shag,
I spend about 40 pages in my article addressing your notion that the 2nd Amendment is different from all other rights. I’ll blog further about it, needless to say, I don’t agree.
I think your vision of the future of the Second Amendment, where people are required to bear arms, is fanciful, and will never happen.
Shag from Brookline - June 1, 2011 at 4:53 pm
My prophecy is not a legal requirement but a practical one. (I’m ignoring for the time being the militia aspects of legal requirements.) If just about everyone in my neighborhood (or workplace) is carrying, either concealed or open, including multiple arms du jour with extensive fire capacities, self-defence may require me, not legally, but as a practical survival matter to do likewise. Alito and Scalia limitations in their dictas are not supported historically. Many challenges to such limitations are expected, at some point – or points – to be resolved by SCOTUS. Many gun lovers will be pushing for strict scrutiny as the Second Amendment standard for review. Perhaps I should make a list of constitutional rights to use as a checklist to discern your disagreement in further blogs, as there may possibly be one or two rights that come close to the Second Amendment.
Josh Blackman - June 1, 2011 at 4:56 pm
Your argument is cyclical. Everyone will have guns so everyone will need guns.
Do you really think everyone in your neighborhood will start carrying, openly or concealed firearms, if the Court applies strict scrutiny to the 2nd Amendment? Even in jurisdictions with very liberal firearm laws, there is nowhere near 100% carrying rate. I understand your argument, but I think your hypothetical is a bit out there.
Josh Blackman - June 1, 2011 at 5:00 pm
Also, your concern belies an important fallacy. You assume that law-abiding people that carry arms will pose a threat to you, so much so, that you will need your own gun for self defense. That is wrong.
Most (the vast majority) of law-abiding citizens who carry arms will not use it for harm. Most (the vast majority) of those who use firearms for harming others illegally possess the gun.
This is why I suggest bifurcating 2nd Amendment challenges based on an actor’s propensity for harm. Under our current jurisprudence, someone like Dick Heller or Otis McDonald, who has shown no signs that they will use the gun to harm others, are treated the same as someone who has shown a propensity for violence.
Shag from Brookline - June 1, 2011 at 9:56 pm
Josh, you’re sounding like an absolutist on Second Amendment rights. I await your article and further posts. But how do I readily determine that all those I know are packing are doing so legally and even so whether they are otherwise law-abiding? What are the assurances that authorities can readily determine whether a person has a propensity for violence? I would not go into a club where I know that many patrons are carrying, whether openly or concealed, not necessarily because I assume they pose a threat to me personally; but I don’t want to chance getting caught in any crossfire. Perhaps if you were teaching a class of 40 students all openly carrying, you would have no fear of harm or threat to you or the students; but that’s not necessarily being brave; it may be stupid.
As far as the current carrying rate goes, give Heller, McDonald and the NRA time to attune the public to these fairly recent decisions. As more challenges are made to gun control limitations successfully, I suspect that gun sales and permits will increase. Meanwhile, guns that are legally possessed can and do kill innocents.
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