Here's the part I was referring to that's directly on-point; it's not exactly a new concept in constitutional law:
Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id ., at 11, 13–17.
The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g ., Hudson v. Michigan , 547 U. S. 586, 591 (2006) (“The exclusionary rule generates ‘substantial social costs,’ United States v. Leon , 468 U. S. 897, 907 (1984) , which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo , 407 U. S. 514, 522 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona , 384 U. S. 436, 517 (1966) (Harlan, J., dissenting); id. , at 542 (White, J., dissenting) (objecting that the Court’s rule “[i]n some unknown number of cases … will return a killer, a rapist or other criminal to the streets … to repeat his crime”); Mapp , 367 U. S., at 659. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.
http://www.law.cornell.edu/supct/html/08-1521.ZO.html
The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g ., Hudson v. Michigan , 547 U. S. 586, 591 (2006) (“The exclusionary rule generates ‘substantial social costs,’ United States v. Leon , 468 U. S. 897, 907 (1984) , which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo , 407 U. S. 514, 522 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona , 384 U. S. 436, 517 (1966) (Harlan, J., dissenting); id. , at 542 (White, J., dissenting) (objecting that the Court’s rule “[i]n some unknown number of cases … will return a killer, a rapist or other criminal to the streets … to repeat his crime”); Mapp , 367 U. S., at 659. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.
http://www.law.cornell.edu/supct/html/08-1521.ZO.html
Comment