With the horrific massacre of children at school in Uvalde, debates about the nature and scope of Second Amendment rights have once again attracted national attention. One argument contends that the Second Amendment right to keep and bear arms for self-defense extends to assault rifles and large ammunition magazines. From this perspective, a right is defined by its purpose, not by the costs that protecting it may impose on society. It is largely irrelevant that the latter has changed over time as technology develops. The original understanding of what the right protects is sacrosanct.
The counter argument responds that the weapons in common use in 1791 or 1868 were far more limited in their capacity to cause harm when misused compared to modern weaponry. The right to own a musket that could be loaded and fired three times in a minute cannot reasonably be applied to protect access to guns that fire dozens of bullets in seconds. These differences must be taken into account in interpreting the Second Amendment today.
How are we to evaluate this debate?
To answer that question, I think it is helpful to recognize that rights are political goods. They are highly valued and rightly so. But the price we as a society are willing to pay for them has limits. At some point, the price or cost of the right becomes too expensive for our society to bear. This, of course, is true for the purchase of material goods as well. No one would hold an individual to a commitment to buy a car, for example, if the price of the vehicle unexpectedly quadrupled. Price is part of the Constitutional deal as well.
In the context of rights, this cost — or the price we have to pay to protect the right — has always been part of our understanding of the nature and scope of the right. It is important to understand here that looking at the price of the right to determine the extent to which we are willing to protect its exercise is a separate — although not entirely unrelated — question from an inquiry into whether an activity satisfies the definition of a right in other respects.
To take one example, consider the free exercise of religion. Assume a person claims that their religion requires them to engage in behavior that causes unacceptable harm to others or the public good; human sacrifices, polygamy, denying children life saving medical care. We may recognize the sincerity of the religious person’s faith commitments and that from their religious perspective they are obliged to perform these actions. In a generic sense, their conduct constitutes the exercise of religion. But as a constitutional matter, we will not protect these activities as the free exercise of religion. Put simply, the price of doing so is too high.
This understanding — that the only reasonable way to determine the meaning of a right and the protection the exercise of the right receives is by taking the cost of protecting it into account — should not be controversial. It is solidly grounded in history and precedent. Again, if we consider religious liberty as an example, many early state constitutions protected religious freedom, but they also explicitly admonished that the scope of the right did not extend to disturbing the public peace and safety. The price we were willing to pay limited the scope of the right.
Similarly, in Reynolds v. U.S. in 1878, the Supreme Court held that however fervently devout Mormons might believe that their faith countenanced polygamy, the cost to society of permitting such a dangerous and “odious” practice placed polygamy beyond the scope of free exercise protection.
Certainly, the framers of the Constitution had never considered that the Free Exercise Clause of the First Amendment would protect the religious practice of polygamy from legal prohibition.
Other rights provide additional examples. Freedom of speech is aggressively protected — but speech that incites imminent lawless conduct or violence risks too much harm to be tolerated. The presumption against prior restraints on speech is entitled to great respect, but the government can enjoin publishing the schedule of troop convoys in time of war. The controversy over the right to have an abortion reflects an analogous analysis. The contention that there is a right to reproductive autonomy which protects access to contraceptives, but not to aborting a fetus, is grounded on the greater harm caused by the exercise of the right in the latter context.
A similar analysis applies to the Second Amendment. The danger to third parties and the general public is an intrinsic aspect of determining the scope of the right to keep and bear arms just as the cost of protecting certain exercises of religion or expressions of speech or reproductive autonomy may limit the protection provided to these fundamental rights.
Given this foundation, it is difficult to argue that the costs of protecting access to assault rifles and large ammunition magazines is not a relevant and arguably controlling factor to consider in determining what the Second Amendment protects today. In taking those costs into account, the reality that the right applied to the limited firearms available 150 -230 years ago cannot reasonably support the conclusion that the Second Amendment necessarily extends to the modern weaponry at issue in current controversies.
If the price of exercising the right has gone up enough, we are no longer obligated to purchase it.
Alan Brownstein is a professor of law emeritus at the University of California, Davis School of Law. He has written numerous articles for academic journals and opinion pieces for other media on a range of constitutional law subjects. He is a member of the American Law Institute and served on the Legal Committee of the Northern California American Civil Liberties Union. He received his B.A. degree from Antioch College and earned his J.D. (magna cum laude) from Harvard Law School, where he served as a Case Editor of the Harvard Law Review.