The "Second-Class" Second Amendment Right

In the final day of its term, the Supreme Court decided a gun case, while managing to sidestep the Second Amendment. In Voisine v. Unites States, by a 6-2 vote, the Court gave an expansive reading to the federal law prohibiting gun possession by persons convicted of a “misdemeanor crime of domestic violence.” The majority held that the statute applies to the reckless use of force against a domestic partner or family member, even in the absence of a conscious intent to do harm. Writing for the majority, Justice Kagan gave the example of throwing a plate in anger against a wall near where your wife is standing.

Justice Thomas was not pleased that the right to gun possession could be deprived for such a minor transgression. He filed a dissent accusing the majority of relegating the Second Amendment to a “second-class right.” Although Justice Sotomayor joined his dissent as to the meaning of the statute, she did not join the portion of his opinion arguing that to apply the statute more broadly would offend the Second Amendment. Only Justice Thomas thought the statute raised a Second Amendment issue. It was the second time Justice Thomas had accused a Court majority of treating the Second Amendment as a “second-class right.” The first was his dissent, joined by Justice Scalia, from the Court’s refusal last year to review a lower court ruling upholding a state assault weapon ban.

One need not give the Second Amendment “second-class” status to recognize what should be obvious: by its very nature, the Second Amendment is a different kind of right. Why? Because it is a uniquely dangerous right.

In 2008, in District of Columbia v. Heller, the Supreme Court cast aside established precedent and, for the first time in our history, recognized an individual right to possess guns in the home for self-defense. It is undeniable that exercise of that right exposes individuals, their families and the community-at-large to a vastly increased risk of harm. The fact is that those who exercise the Heller right have no assurance that a gun in the home will be used only for the salutary purpose of self-defense. Indeed, research shows that, for every time a gun in the home is used in a self-defense shooting, there are four unintentional shootings (often involving young children), seven criminal assaults (often involving domestic disputes, with women as the victims) and eleven completed or attempted suicides. Given that attacks with guns are far more likely to be lethal than attacks with other weapons, it is hardly surprising that the presence of a gun in the home increases the risk of homicide in the home three-fold and increases the risk of suicide five-fold.

The increased risk from exercise of the Heller right also is borne by the community-at-large. Residents of the states with the highest rates of gun ownership (Louisiana, Alabama, Mississippi, Wyoming, West Virginia and Arkansas) are more than 2.5 times more likely to become homicide victims than those in the states with the lowest rates of gun ownership (Hawaii, Massachusetts, Rhode Island and New Jersey). The more Americans decide to exercise the Heller right, the more deadly violence becomes.

Of course, it is possible for the exercise of other rights, particularly freedom of expression under the First Amendment, to create a risk of violence or physical injury. But if that risk becomes sufficiently great, the courts will deny the protection of the First Amendment altogether. The core exercise of freedom of expression is unlikely to pose a serious risk of physical harm, particularly lethal harm. The same cannot be said of the Second Amendment right. For this reason, it is misguided for courts to reflexively apply to the Second Amendment the same constitutional standards and reasoning developed in First Amendment cases.

Given the uncertainty about the Court’s future composition, it is not at all clear that the High Court will continue to recognize a Second Amendment right to have guns for self-defense, particularly since the Heller five-justice majority opinion is built on a historical house of cards that professional historians have denounced as “law office history.” But if the Heller right survives the continuing attack on its false originalism, at least the judiciary should give the right its own unique jurisprudence. It is a uniquely different kind of constitutional right.

The fallacy of the analogy between the First and Second Amendments is revealed in the Thomas dissent in Voisine. “I have little doubt,” he writes, “that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel.” Surely the risk that a person convicted of libel will inflict future injury to another’s reputation by libeling again is transparently of a different nature than the risk created by allowing someone who has committed an act of domestic violence to possess a lethal weapon. Damage to reputation is simply not comparable to a gunshot wound.

It is to be hoped that there will be other occasions for Justice Thomas to complain that a Supreme Court majority is treating the Second Amendment as a “second-class right.” It will likely mean that the Court has sensibly recognized that it is the most dangerous right.

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