A few weeks ago, Jake Charles raised an important point here when he compared the recent Eleventh Circuit decision in United States v. Jimenez-Shilon with Justice Thomas’ opinion, released the same day in Shinn v. Martinez Ramirez: in contrast to the Eleventh Circuit’s purist text-and-history approach to the Second Amendment, which precludes the invocation of any balancing tests or tiers of scrutiny, Justice Thomas, and the majority of the Court, approach many constitutional questions by balancing private rights and freedoms against public (i.e., state) interests. As Jake observed, rather than the Second Amendment being treated as an inferior or second-class right, it seems that many conservative jurists treat the Second Amendment as more absolute than other rights embedded in the Constitution or Bill of Rights.
I want to follow up on this point with a discussion of the Court’s “marginal deterrence” analysis used in many Criminal Procedure cases (especially those involving claims under the Fourth and Fifth Amendments) and connect these to the legal discourse on the Second Amendment. I previously touched upon “marginal deterrence analysis” in a 2012 article about police asking for (non-informed) consent to search. Marginal deterrence refers to how much additional deterrence against overreach, or additional protection of a lawful right, would accrue for future cases if the court decides to apply or extend the protection in the present case, beyond the deterrence or protections already in place from prior rulings or laws. As an analogy, if you already have four high-quality deadbolt locks on your front door, how much safer would you be against an intruder if you added a fifth lock to the same door? If you have no locks on your door, adding the first lock makes a big difference in blocking intruders, but with each additional lock you add, it makes less and less difference. At some point, you would simply be wasting your money if you added any more locks, because each lock costs something. The Supreme Court has applied a similar logic to measures that protect constitutional rights, as explained below.
There are three main theories about the purpose of the right to keep and bear arms codified in the Second Amendment: the colonial-state militia idea, the tyranny-resistor idea, and the personal self-defense idea. Of course, many jurists and legal scholars would say that at least two – if not all three – of these are simultaneously true. But in each of these approaches to the Second Amendment, or even all three combined, there is a mostly tacit premise that the right to keep and bear arms itself is instrumental or prophylactic: it is really there to protect even more fundamental rights and freedoms. In other words, Second Amendment proponents consistently say that gun rights are protected in order to protect an even more fundamental right, like the ability to defend oneself against wrongful attacks, the ability to protect one’s community or state against tyranny (government overreach?), or the ability to repel foreign invasions and armed uprisings. The state militia idea also includes serving as a prophylaxis against federal standing armies, as the opening argument of the original Congressional debates about the Second Amendment explained (Eldridge Gerry’s opening statement). Joseph Blocher has discussed the instrumental or prophylactic nature of the Second Amendment in his articles Bans and The Right To and Not To. (A few other writers have also noted the instrumental nature of the Second Amendment – see here and here).
In this sense, the Second Amendment is very much like the exclusionary rule in criminal procedure: a prophylactic rule to protect even more fundamental rights and freedoms like privacy, freedom, fairness of judicial proceedings, and personal autonomy. For the exclusionary rule, for the last 40 years or so, the Supreme Court (or at least the Republican-appointed Justices) have often taken a “marginal deterrence” approach, rejecting extensions/applications of the exclusionary rule in 4th and 5th Amendment cases due to the additional marginal “costs” of implementing the exclusionary rule that seemed to them to outweigh the additional marginal benefit of the proposed extension of procedural protections.
This is a different type of cost-benefit analysis (much more subtle) than we usually see in gun cases. Courts considering Second Amendment challenges usually compare, either expressly or impliedly in their intermediate scrutiny analysis, potential homicides or gun crime against perceived rates of self-defense, crime prevention, or crime deterrence – the costs and benefits of easily accessible firearms. In other words, intermediate scrutiny has, at least impliedly, looked at endpoint costs and benefits with regard to violence.
As far as I can tell, the Supreme Court first invoked marginal deterrence or benefit analysis in the 1966 case United States v. Blue, in which the defendant sought to have his case dismissed altogether, rather than merely have illegally-obtained evidence suppressed:
Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.
Justice Harlan revisited the idea in his concurrence in Alderman v. United States in 1969; and economist George J. Stigler popularized the term “marginal deterrence” for academicians who study deterrence theory and criminal law in his widely-cited 1970 article The Optimum Enforcement of Laws.
The Court fleshed out this approach in a pair of important 1976 decisions to which the Justices often refer in this context. The first is Stone v. Powell:
The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal. Even if one rationally could assume that some additional incremental deterrent effect would be presented in isolated cases, the resulting advance of the legitimate goal of furthering Fourth Amendment rights would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.
The other related decision was U.S. v. Janis, in which the Court said, “Assuming this efficacy [of exclusionary rules], the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation.” In 1984, in INS v. Lopez-Mendoza, a case to which I will return below, the Court stated bluntly: “Deterrence must be measured at the margin.”
As a good illustration of how the Court continued to develop this doctrine, consider this section from Pennsylvania Bd. of Prob. and Parole v. Scott (1998):
Likewise, in United States v. Janis, we held that the exclusionary rule did not bar the introduction of unconstitutionally obtained evidence in a civil tax proceeding because the costs of excluding relevant and reliable evidence would outweigh the marginal deterrence benefits, which, we noted, would be minimal because the use of the exclusionary rule in criminal trials already deterred illegal searches . . . [In the present case, applying] the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches.
Other examples are Illinois v. Krull (“[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.”); Herring v. United States (“In addition, the benefits of deterrence must outweigh the costs . . . The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free.”); United States v. Leon (using marginal deterrence analysis to craft the “good faith exception” to the warrant requirement); and Hudson v. Michigan (using the approach to decide that a violation of the state’s “knock-and-announce” rule did not automatically require the suppression of all evidence acquired during the subsequent search) (see also Montejo v. Louisiana, and Withrow v. Williams).
Even outside of the Criminal Procedure context, the Court has also applied marginal deterrence analysis in the context of campaign finance regulations (see Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, “Arizona also has stringent fundraising disclosure requirements. In the face of such ascetic contribution limits, strict disclosure requirements, and the general availability of public funding, it is hard to imagine what marginal corruption deterrence could be generated by the matching funds provision.”); and in cases about the regulation of violent video games (see Brown v. Entertainment Merchants Ass’n, “Even if the sale of violent video games to minors could be deterred further by increasing regulation, the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.”).
Importantly, for purposes of applying this approach to Second Amendment cases, the presence of rights-protecting legislation or regulations has moved the Court to refrain from imposing further constitutional protections. The presence of rules or regulations protecting civil liberties makes the exclusionary rule less necessary. Returning to the 1984 case INS v. Lopez-Mendoza, the Court there noted existing INS regulations already did part of the job that the exclusionary rule purports to do: “The INS’s attention to Fourth Amendment interests cannot guarantee that constitutional violations will not occur, but it does reduce the likely deterrent value of the exclusionary rule. Deterrence must be measured at the margin.”
The Court could use this approach in Second Amendment cases in one of two ways. The first would be to ask what additional marginal protection of “the right to keep and bear arms” would result from extending the Second Amendment’s exclusionary force to whatever gun-related statute or regulation is being challenged in the case (some Circuits may already be applying intermediate scrutiny in this way, at least in practice). The second way this could be applied – closer to what is occurring in the exclusionary rule context – would be to look at the additional marginal protection of the underlying rights and freedoms that the Second Amendment was, instrumentally, supposed to protect. Are citizens still able to defend themselves and their homes even if the challenged government action (say, a ban on large-capacity magazines) is upheld? What would be the value – at the margin – of striking down the law? Would citizens be in basically the same position vis-à-vis collectively resisting tyranny, or a foreign invasion or armed uprising, with or without the Court extending Second Amendment protections beyond what they already are?
One difference between marginal deterrence analysis and the balancing of interests used under various “levels of scrutiny” analysis is that the latter typically look at the present situation – the state’s current interest versus the degree of infringement – while the former look forward at future cases. When courts apply marginal deterrence analysis, they look at how the holding in the present case would affect potential parties (state actors and private citizens) in the future.
Based on the approach taken in Lopez-Mendoza, the existing body of statutes protecting gun rights must weigh into the calculus for the marginal benefit of extending the reach of the Second Amendment – and here I am talking about the PLCAA (which protects the supply or availability of new guns on the market), the Tiahrt Amendments (statutory restrictions on ATF disclosure of trace data and other reports), laws that provide a right to carry guns in public (whether open or concealed), “parking lot laws” that protect gun owners’ right to keep guns in their vehicles at work, over their employers’ objections, laws allowing for restoration of gun rights by felons and other disqualified persons, and the new state laws that punish financial institutions if they try to divest from the gun industry, such as SB19 in Texas. As with the INS procedural-protecting regulations in Lopez-Mendoza, these laws – especially in the aggregate – significantly diminish the additional marginal protection that might accrue from extending the Second Amendment beyond the boundaries set by Heller, or even to applying Heller to new cases that are not outright bans on all guns. One difference between the protections discussed in Lopez-Mendoza and those in future Second Amendment cases is that the former involved a uniform, nationwide regime (immigration law), whereas protections of gun rights vary considerably between states. Thus, in a Second Amendment challenge to a federal law or restriction, a court should look at the federal protections already in place for Second Amendment rights; for challenges to a state law, both federal protections and additional protections afforded by the laws of that state would be relevant.
Similarly, the “implementation costs” must be part of the analysis, just as they are in the context of the 4th Amendment and 5th Amendment protections provided via the exclusionary rule. Here, we are not talking only about the increase in gun crime and gun violence that might result from striking down a specific gun restriction (whether a statute or regulation). The Court has included in “implementation costs” the flood of new legal challenges that result from each incremental increase of the exclusionary rule, and this is certainly an issue in the post-Heller world – each new decision striking down a gun law seems to produce an avalanche of new litigation, attempting to apply that case to more laws. The Court’s “implementation costs” also include the uncertainty, confusion, and resulting hesitancy of law enforcement officers or prosecutors to enforce existing laws that are probably valid – but why take the risk, when one could just let this one slide? The Court is very aware that each time it extends 4th or 5th Amendment protections via exclusion, there is a tendency for police and prosecutors to steer clear of crossing the new line that the Court has drawn. In the Second Amendment context, this means that new decisions supposedly protecting gun rights a bit further would inevitably mean that laws about various gun crimes, for example, will be under-enforced – illegal trafficking, threats/brandishing, negligent entrustment, assaults that result in no injuries (the shooter missed the shot), bans on celebratory gunfire in crowds, and so on. The Court has even applied “implementation cost” analysis to the decisions of trial judges – expressing concern that judges will over-enforce the exclusionary rule and suppress valuable evidence that should be permissible, will expend undue judicial resources on additional pre-trial suppression hearings that are not really valuable or necessary, and will unnecessarily increase the works litigants need to do. It is easy to see how this can apply in the Second Amendment context as well – many unsuccessful and mostly meritless Second Amendment challenges arise in the context of criminal proceedings, such as prosecutions of straw purchasers. This slows down proceedings, decreases judicial economy, expends additional resources for prosecutors and public defenders, and introduces unnecessary uncertainty into cases that should be straightforward.