The Volokh Conspiracy

From Harrington v. Commissioners of Roads of Newberry District. (S.C. Const. Ct. App. 1823), an opinion dealing with whether a court clerk should be seen as explicitly exempted from the then-existing common duty of working on road construction:

If once the door be opened, by construction, for any officer to escape from the duties of the citizen, the lock is not opened, but the key is useless, and the bolt broken; and however narrow the first opening, there will never be wanting hands to push it wide, and those will be the hands of the strong, the sagacious, and the interested.

If the clerk were to be the only officer thus privileged, I should not greatly regard it, but the peculiar reason given for this exemption will not be regarded. The principle received, will, and must be, that an officer understood to be occupied in his official duties becomes exempt, whether it appeared by statute or common law….

[S]omething peculiar may be found in every case, and future judges will look to the principle alone, and lay aside the guards and qualifications. The people will not comprehend such subtleties. The practice of the country will be upon the general principle. Other officers will be excused and considered exempt. Some circuit decisions will be predicated upon the habit of expectations of the country.

Finally, another qualified decision will creep in, and the two will be enough to beget a race of exempts that may put at defiance the principle to which we are allowing only one harmless exemption. But these little exemptions in favor of individual privileges are as contagious as the leprosy….

A principle once surrendered in a particular case is no longer firm, but trembles at every new attack. As then, in treating of great principles, we would willingly say, "esto perpetua [let it be perpetual -EV]:"  So in resisting the first encroachments, our rule should be "obsta principiis [resist at the beginning -EV]."

"Stop innovation in its early stage,
For when the upstart thing grows strong from age,
No time, nor strength of tenets stop its rage."

[This month, I'm serializing my 2003 Harvard Law Review article, The Mechanisms of the Slippery Slope; in last week's posts, I laid out some examples, definitions, and general observations, and turned to a specific kind of slippery slope mechanism—cost-lowering slippery slopes. This week, I'll elaborate on that, and shift to some other mechanisms.]

Let us briefly revisit the argument that gun registration may increase the chances of gun confiscation. Today, gun confiscation would be hard to enforce, partly because of the Fourth Amendment. Searching all homes for some or all kinds of guns would be unconstitutional, a classic impermissible general search. This, in a sense, is a cost of confiscation—not a financial cost, but a legal cost that keeps confiscation from being performed efficiently.

{The legislature might still enact a gun ban, hoping that nearly all owners will voluntarily comply, planning to rely on informers, or recognizing that the ban would only be enforced gradually, as the gun owners somehow reveal themselves—for instance, by using a gun, either defensively or offensively. But such a legislative decision will be made less likely by the difficulty of enforcement, the public distaste for reliance on informers, and the possible public hostility to punishing even illegal gun owners when their gun ownership is revealed as a result of a legitimate defensive use.}

If, however, guns are first successfully registered, and are later banned, a house-to-house search of the homes of registered owners who haven't turned in their guns may well become constitutional. Your registration as the owner of a weapon may be seen as probable cause to believe that you have it; and one place you're likely to be keeping it is your home. This isn't a certainty—maybe the gun was stolen or lost, and you didn't report this to the police, or maybe you're keeping the gun in some other location—but a magistrate may find that it suffices for probable cause and issue a search warrant that would let the police search your home for the gun.

So gun registration (legislative decision A) would likely lead to some degree of public compliance with the registration requirement. This compliance has the legally significant effect of creating probable cause to search all registrants' homes, once guns are banned. This legally significant effect makes it easier to enforce the gun ban—thus making it more likely that such a ban will be enacted (legislative decision B).

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From Justice Holmes' dissent in Panhandle Oil Co. v. Knox (1928), an argument that the Court shouldn't worry too much about slippery slope concerns:

[C]ertain dicta of Chief Justice Marshall [about prohibitions on certain forms of taxation] … were founded upon his often quoted proposition that the power to tax is the power to destroy. In those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the necessary alternative was to deny it altogether.

But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to destroy if unlimited, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. A tax is not an unconstitutional regulation in every case where an absolute prohibition of sales would be one.