Justice Stephen Breyer was one of the four dissenting voices in District of Columbia v. Heller (2008), the landmark Supreme Court case ruling that the Second Amendment right to bear arms is an individual right, rather than a collective right, which merely attaches to service in a state militia. On page 35 of his 44 page dissent, Justice Breyer states the following:
“The upshot is that the District’s objectives are compelling; its predictive judgments as to the law’s tendency to achieve those objectives are adequately supported [emphasis mine]; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no less clear less restrictive alternative.”
Justice Breyer was defending a District of Columbia law that banned handguns altogether as part of a stated objective to reduce violence in the District. The problem with Breyer’s assertion that “predictive judgments as to the law’s tendency to achieve those objectives are adequately supported” is that it’s patently false. Nonetheless, Breyer continues on the final page (p. 44) of his dissent:
“In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”
The wording of this sentence implies that because crime is high in urban areas the government has an interest in restricting access to handguns. Nothing could be farther from the truth.
The Court is often in the position of making a decision by balancing one or more government interests against one or more individual liberty interests. Take, for example, the 1979 case of Delaware v. Prouse, which considered the constitutionality of stopping citizens in roadblocks for brief searches not predicated on probable cause or even individual suspicion.
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