Constitutional Rights that Put Lives at Risk

In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

In that respect, however, they are no different from numerous other constitutional rights. Justice Breyer’s argument in McDonald is actually very similar to Justice Antonin Scalia’s dissent in Boumediene v. Bush, where Scalia warned that giving habeas corpus rights to War on Terror detainees “will almost certainly cause more Americans to be killed.” That argument didn’t move Breyer, who voted with the majority to extend those rights. Similarly, the enforcement of Fourth Amendment rights and Fifth Amendment rights allows at least some violent criminals to escape punishment, which in turn leads to some number of murders that might otherwise have been prevented. Pro-lifers certainly argue that the right to abortion kills far more people and in a far more direct way than gun ownership does.

But the really big skeleton in this particular closet is freedom of speech. Political speech and organization by communists, Nazis, racists, radical Islamists, and others has led to vastly more preventable deaths than private ownership of handguns. If the Russian Provisional Government of 1917 had suppressed the Bolshevik Party (as it could easily have done at various times during that year), millions of lives would have been saved. The same goes for the Weimar Republic and the Nazis. Closer to home, many black lives could potentially have been saved if the federal government had suppressed neo-Confederate and segregationist political speech in the South in the aftermath of the Civil War, thereby preventing “Redeemer” forces from regaining political power in the region and suppressing black rights.

One could argue that these other rights don’t endanger lives as directly as guns do. Action, not speech or procedural rights, is what really kills people. Perhaps the life-threatening effects of procedural rights and political speech can be forestalled without restricting these rights themselves. However, one could say the same of guns. As the NRA famously puts it, guns don’t kill people, people kill people.

Whether we are talking about guns, speech, or other rights, there are going to be cases where, as a practical matter, it is impossible to prevent death by measures short of restricting the right itself. For example, allowing Nazi speech in the Weimar Republic may have greatly increased the risk that the Nazis would come to power, by which point it was too late too prevent them from killing large numbers of people. Similarly, once free speech by Redeemers and ex-Confederates allowed them to seize control of southern states, it was politically impossible for the federal government to protect black rights against them – at least not without much greater violence than might have sufficed to prevent the Redeemers from organizing in the first place.

In making these comparisons, I do not mean to suggest that judges should allow severe restrictions on constitutional rights any time there is a plausible argument that doing so might save lives. To the contrary, I think judges should generally avoid doing so. The trade-off between lives and constitutional rights is one better made by the framers and ratifiers of the Constitution than by judges. Moreover, there are often risks to life on both sides. For example, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Similarly, strong enforcement of the Fourth Amendment could sometime prevent abusive police behavior that itself endangers lives.

If we allow government to set aside constitutional rights whenever they “put… others’ lives at risk,” we soon won’t have many constitutional rights left. I also object to Breyer’s and Scalia’s more selective invocation of risks to life in cases involving rights for which they have little sympathy, while simultaneously ignoring very similar considerations when the right at stake is one they value more highly.

UPDATE: Breyer tries to limit his argument to “substantive liberty rights,” which may exclude procedural rights such as those protected by the Fourth Amendment or habeas corpus. However, it’s not clear why life-threatening procedural rights should be any more vigorously enforced than similarly risky substantive rights. After all, the purpose of most of the procedural rights is to provide indirect protection for “substantive liberty.” Moreover, as discussed above, freedom of speech is surely a “substantive liberty right,” and it sometimes poses serious dangers to life as well.

UPDATE #2: I should note that Justice Stevens’ separate dissent in McDonald makes a similar argument to Breyer’s (pp. 35-37 of the slip opinion). Thus, all four of the liberal justices have endorsed some form of this reasoning.

UPDATE #3: I should perhaps have pointed out that there is considerable academic controversy about the validity of criminologist Gary Kleck’s estimate, linked above, that there are 2.5 million defensive uses of guns per year in the United States. Some of the conflicting research is summarized here. I suspect that the Kleck estimate is probably overdrawn because of methodological problems such as those discussed here (though see Kleck and Marc Gertz’s response). But even the low-end estimates put forward by some of Kleck’s critics estimate some 100,000 defensive gun uses per year. Philip Cook, a prominent scholar general supportive of gun control, states that the truth is probably somewhere in between the 100,000 and 2.5 million figures, which seems plausible to me. In any event, my purpose is not to endorse any of the specific estimates, but simply to point out that defensive gun uses often do occur and sometimes save lives. Therefore, there are potential risks to life on both sides here.

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