Guns and Judicial Protection of Constitutional Rights that Put Lives at Risk

In his dissent to today’s Supreme Court Second Amendment ruling in New York State Rifle and Pistol Association v. Bruen, Justice Stephen Breyer reiterates his longstanding argument that gun regulations deserve special deference from courts because guns endanger human life. He argues that the Court’s decisions is wrong because it “severely burdens” States’ efforts to “address some of the dangers of gun violence…. by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds.” It isn’t just that Breyer believes courts must take these “dangers” into account. He contends they justify near-total judicial deference in gun rights cases – deference far-reaching enough to uphold the New York law at issue in this case, which presumptively bans carrying of guns outside the home by nearly all law-abiding citizens.

In his dissent in the Court’s last major gun rights ruling, McDonald v. City of Chicago (2010), Breyer argued that these dangers justified refusing to “incorporate” the Second Amendment against state governments at all, even though nearly all other parts of the Bill of Rights have been applied against state governments.

My 2010 critique of Breyer’s McDonald dissent is also applicable to his dissent today, and to similar arguments made by others. The Second Amendment is far from the only constitutional right that poses threats to human life, and may not even pose the greatest such threat. If potential threats to life justify near-total judicial deference, we would soon have few constitutional rights left:

In his dissent in McDonald,… 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…., 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 govern