Civil Liberties (i.e., the 2d amendment) in time of War

[Eugene Volokh]

        I agree that this is indeed directly relevant to the subject of trading off
civil liberties for national security in time of emergency; and I appreciate
Jack's linkage of the 1st, 2nd, and 4th Amendments here.  Fortunately, we
have so far not had any abridgement of 1st Amendment liberties in response
to this crisis, and not even that many calls for them.  It's a tougher call
as to 4th Amendment liberties, in part because their boundaries are often
not easy to discern; but certainly no-one has been calling for throwing all
4th Amendment protections out altogether, for instance allowing unlimited
searches and seizures of all communications, homes, and persons with no
probable cause or a warrant.  Even Ashcroft, if I'm not mistaken, has
consistently argued that the proposals for which he is calling are already
constitutional under the 4th Amendment, and I think he's mostly right,
though not entirely so; but even if he's just paying lip service to the
Amendment, that's better than urging its outright rejection.

        If the government, however, concludes that the 2nd Amendment should be
"traded off," especially traded off altogether -- say, with a total gun ban
or some such -- would that be done "instead of" trading off 1st and 4th
Amendment?  Or would it rather increase the likelihood that 1st, 4th, 5th,
6th, 14th, etc. amendment freedoms will be traded off as well?  The point
below seems to be advocating trading off the 2nd Amendment based on an
analogy with mere *proposals* to reduce 1st and 4th Amendment protection,
and ones that (especially as to the 1st Am) have been made by rather few
people, and at this point seem unlikely to be adopted.  How much easier
would it be to trade off other rights based on an analogy with an actual
*reduction* in the protection offered by another Amendment?

        On a different note, if we are going to be trading off constitutionally
secured rights in order to get more protection against terrorism, I take it
that courts should decline to do this unless they are persuaded that the
trade-off really *will* yield more protection.  As to guns and terrorism,
this is far from clear.  Given that it's unlikely that terrorists will be
denied access to "pistols" and "box cutters" -- there are 250 million guns
out there, and I imagine many more box cutters -- a ban on pistols will
likely do little to fight terrorism.  (One might think that a gun ban might
prevent some gun crimes by, say, otherwise law-abiding people who get angry,
or by relatively weakly motivated criminals, such as casual thieves who
decide to carry a gun just to look cool; but I don't think that this
argument, even if valid there, can be extended to terrorists.)  On the other
hand, there are powerful arguments that private ownership -- and carrying,
under a pretty broadly available license -- can actually help law-abiding
citizens *stop* terrorism; this, I'm told, has been part of the Israeli
terrorism control strategy.  There's naturally little solid data on this,
but surely before a constitutional right is traded away in order to get
supposed extra security, courts need to consider this question.

        Of course, if Jack's proposal is merely that guns be prohibited in certain
places, say, on airplanes, then I'm not sure we need much of a trade-off of
2nd Amendment liberties; it's quite sensible to interpret the 2nd Amendment
as operating quite differently on planes than elsewhere, just as we
interpret the 4th Amendment as operating differently there.

        (Incidentally, for whatever it's worth, many of the firmest defenders of
the 2nd Amendment -- in the academy and outside it -- have, at least in
recent years, argued in favor of strong protection for the 1st and the 4th
Amendments.)

        Eugene

Jack Balkin writes:

>         While we are on the subject of trading off civil
> liberties for national
> security in time of emergency, I wonder what members of the list think
> about the increased plausibility of trading off 2d amendment liberties in
> time of national crisis instead of 1st and 4th amendment ones?  Given that
> guns are destructive and can be used in terrorist activity (and in
> particular terrorist activity that threatens organized government which is
> thought by the terrorists to be unjust and violative of basic human
> freedoms), should Attorney General Ashcroft– a noted defender of the
> "standard model"-- also be pushing for stronger gun control right
> now?  After all, as Ashcroft himself might say, we all have to
> give up some
> liberties in order to live in a safe and civilized society (or
> Homeland, if
> you prefer).
>         I have seen in the literature on the 2d amendment a
> distinction between
> weapons that can inflict a lot of damage unilaterally (like bombs) and
> weapons like pistols that take lots of cooperative activity to wage war on
> the government, and therefore should be protected under the 2d
> amendment.  But surely this distinction must seem particularly strained
> after the events of September 11th.  Plastic knives and box cutters were
> the tools of choice.
>         If modern terrorism can make use of virtually any weapon,
> no matter how
> innocent it may seem, what (if any) effect should this have on
> the question
> of individual rights under the second amendment and the types of weapons
> that are specifically protected by it?
>
> Jack Balkin
>