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

[Ilya Somin]

Although the posts on this issue so far have made some good arguments, I
think that they ignore a key distinction between the 1st and 2nd Amendments
and the 4th. The 4th Amendment bans only "unreasonable" searches and
seizures. One could therefore argue that it has a built in "emergency"
clause: what is unreasonable in "normal" times may become reasonable in a
time of grave danger like now. On the other hand, the 1st and 2nd Amendments
do not contain any such sliding scale. They say that Congress shall make
"NO law" and that the rights of the people to keep and bear arms "shall not
be abridged" (I assume, for the moment, that this language does indeed
create an individual right to arms) and do not contain any qualifications or
exceptions.

This does not prove that 1st and 2nd amendment rights can never be abridged
in an emergency. Textual considerations are not the only ones we need to
take account of. But it does suggest, at least to me, that the permissible
scope for emergency abridgement here is considerably smaller than in the
case of the 4th Amendment.

I should also point out that this does not mean that Ashcroft's proposals
are all sound. I have serious reservations about several of them and I note
that some are worded as to apply to ordinary federal criminal cases as well
as to cases of terrorism. There is certainly no justification for
restricting 4th Amendment rights in cases that have no real connection to
the present emergency. That said, Ashcroft does seem to have an argument for
restricting 4th Amendment rights (or rather, for arguing that the 4th
Amendment gives us fewer rights in the first place in an emergency
situation) than is available in the case of the 1st and 2nd.

Ilya Somin
-----Original Message-----
From: Eugene Volokh <volokh at mail.law.ucla.edu>
To: CONLAWPROF at listserv.ucla.edu <CONLAWPROF at listserv.ucla.edu>
Date: Friday, October 05, 2001 10:32 AM
Subject: Re: Civil Liberties (i.e., the 2d amendment) in time of War


>        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
>>
>