Justice Breyer's self-refuting dissent in Heller.--

I have been reading Justice Breyer's dissent in Heller.

I suspect that it may go down in history as one of the strongest arguments AGAINST balancing tests. If the restriction on liberty were trivial, then it might be easy to use a balancing test to uphold the DC statute's ban on handguns. Or if handgun bans were known to be spectacularly successful in reducing death and violence, then fair-minded judges might determine that even very substantial restrictions on liberty could be balanced away by the overwhelming benefit of gun control.

But gun control has very little effect on rates of violence or death (I think the evidence, while contradictory, points on balance to a small reduction associated with some gun controls.) Given this, the DC case should be an easy one for balancing: a major restriction of liberty (an outright ban) cannot be justified by a small or nonexistent gain in public safety.

That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge or -- more likely -- that the balancing test he posits is not workable in practice. Thus, Breyer's own opinion may be the strongest possible refutation of his jurisprudential approach.