Should Public Health Trump the Bill of Rights?


New York Times' writer Nicholas Kristof advances what he thinks is a very clever idea in his column today:

To protect the public, we regulate cars and toys, medicines and mutual funds. So, simply as a public health matter, shouldn't we take steps to reduce the toll from our domestic arms industry?

The rest of the piece continues in this vein, using Saturday's massacre in Tucson to argue for "reframing the gun debate as a public health challenge." Since Kristof doesn't bother mentioning the fact that gun rights are explicitly protected by the Constitution, I think we can assume he isn't worried about infringing on them.

But what about the risk his approach poses to the rest of the Bill of Rights? As the Harlan Institute's Josh Blackman has noted, the Second Amendment isn't the only constitutional safeguard that imposes a cost on society. Guilty criminals sometimes go free as a result of the Fourth Amendment, the Fifth Amendment, habeas corpus, or some other constitutional protection. Surely the public health suffers when those individuals go on to commit further crimes? Following Kristof's approach, we should reframe the entire criminal justice debate in purely public health terms, even if the result is an expansion of government power and less security for individual liberty. Doesn't the Bill of Rights deserve better than that?