Politics & Policy

The Democrats’ ‘Emergency’ Assault on the Second Amendment

Senator Chuck Schumer (Joshua Roberts/Reuters)
Schumer and Obama misunderstand the Constitution.

To hear the Democrat-media complex tell it, guns themselves are responsible for last month’s carnage at a gay nightclub in Orlando — not the jihadist (a registered Democrat) who pulled the triggers again and again while screaming “Allahu akbar” and pledging allegiance to ISIS. This “blame the guns” meme spearheads the Left’s latest campaign against the Second Amendment.

President Obama and his allies in Congress seek to deny the constitutional gun-ownership rights of Americans merely suspected of terror ties — even as the Left champions the non-existent immigration rights of aliens from regions notorious for terror ties. The backbone of the Democrats’ stratagem is a specious “constitutional” claim, one whose logic would empower the government to strip every civil right the Constitution is designed to protect against government encroachment.

As posited by Senator Chuck Schumer (D., N.Y.) at a Judiciary Committee hearing last week, Democrats claim that many constitutional liberties are routinely restricted in emergency circumstances — in particular, Fourth Amendment rights against warrantless search and arrest. Hence, the argument goes, Second Amendment rights, too, may be stripped away if Democrats can concoct an emergency — such as the ongoing crisis in which guns, apparently with minds of their own, mow down infidels.

At the hearing, Republicans, led by Senator John Cornyn (R., Tex.), made the point that the right to keep and bear arms is rooted in both self-defense and insurance against government’s propensity toward tyranny. The right pre-existed the Constitution. Thus, the Second Amendment is not its source. The right to keep and bear arms is natural and inalienable; the Second Amendment protects it, and Congress has no legitimate power to restrict it.

That does not mean the right is without limitations. As we shall see, like “the freedom of speech” safeguarded by the First Amendment, the right to keep and bear arms had well-known limitations at the time it was adopted. Unquestionably, Congress and state governments have the power to enforce those limitations. But those limitations are part and parcel of the right as originally enshrined in the Constitution. They do not imply a government power to enact additional restrictions in response to “emergencies” or other modern conditions.

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It is black-letter law that a statute cannot limit a constitutional safeguard. Not only is the Constitution the higher-ranking source of law; the safeguard in the Second Amendment is a safeguard against government action. If government action could undo such a safeguard, the purpose of having the safeguard in the first place would be defeated. The Second Amendment, and indeed all constitutional guarantees against governmental abuses of power, would be null and void anytime government came up with an “emergency” pretext.

Democrats’ specious claim would logically empower the government to strip every civil right the Constitution is designed to protect.

In rebuttal, post-constitutional Democrats tut-tut that they just want heightened procedural scrutiny to ensure that guns do not fall into the hands of people who — in the government’s considered judgment — should not have them. No matter how you slice it, though, what they urge not only collides head-on with a Bill of Rights safeguard against government’s power to disarm citizens; there is also no intellectually consistent way to rationalize this proposed abridgment of Second Amendment rights without empowering Washington to attrit (and thus, gradually to repeal) every other constitutional right.

Senator Schumer contends that this inconvenience can be gotten round by the purported recognition of an “emergency powers” doctrine. While history and common sense say the Framers’ idea of a crisis was the specter of government usurpation of the people’s liberties (that’s the reason we have a Bill of Rights), the Left turns this notion on its head: A crisis becomes the reason for government to restrict our liberties — for our own good, of course.

In support of this proposition, Schumer cited the the Fourth Amendment. He claims that its protections are not fully enforced in various emergency situations. By this, he means that there are times when police are not required to obtain judicial warrants or show probable cause of a crime before conducting a search or seizure. The Second Amendment, he contends, must be similarly flexible.

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Schumer could not be more wrong. At its core, his argument misreads the Fourth Amendment safeguard, which protects citizens against unreasonable searches, not warrantless searches. The latter are permitted in many contexts because, in those contexts, it is not unreasonable to search without a warrant.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [Emphasis added.]

The touchstone of the Fourth Amendment guarantee is reasonableness. Democrats misleadingly focus on the amendment’s collateral instruction regarding the burden of proof (viz., probable cause) that must be satisfied before a search or arrest warrant may be issued. But this conflates two separate concepts. Reasonableness is required in all search-and-seizure situations. Warrants are required in only some of them — essentially, routine, non-emergency law-enforcement situations, in which police seek to apprehend a criminal suspect or obtain evidence of a crime for use in a prosecution.

Pace Schumer, reasonable warrantless searches are not emergency-based exceptions to the Fourth Amendment. They are straightforward applications of the Fourth Amendment. Moreover, they could not be, as Schumer implies, post-constitutional restrictions on the Fourth Amendment imposed by statute or judicial decision. The Framers’ very point in enshrining certain rights in the Constitution is to prevent the government from restricting them.

#share#Let’s put legal theory aside and consider, using commonsense terms and concrete examples, why it would be unreasonable to require a warrant in all search or arrest situations.

Imagine, for example, that a police officer on the beat sees a bank being robbed. How could we possibly require an arrest warrant in such a scenario? As the Fourth Amendment dictates, getting a warrant is a time-consuming process: An officer must submit to a judge a sworn statement that (a) explains the probable cause to believe a crime has been or is being committed, and (b) describes with specificity what location is to be searched and/or what persons or things are to be seized.

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This warrant process perfectly suits a situation in which a bank was robbed several hours ago and the police now believe the suspected robber is hiding in his home, where he has stashed the cash. In most non-emergency law-enforcement scenarios — i.e., situations in which the police are seeking to arrest a suspect or gather evidence to prove the suspect’s guilt in court — we want police to get a court’s permission before demanding or forcing entry into someone’s home.

By contrast, when the robbery is happening before their eyes, it would be absurd to require police to run to the courthouse and seek an arrest warrant, rather than simply arrest the suspect and seize the cash on the spot. The Fourth Amendment permits the police to make such a warrantless seizure and search because doing so is reasonable. This is not a suspension of the Fourth Amendment; it is the Fourth Amendment in action.

Similarly, if police have probable cause to believe a bomb has been planted and will soon detonate, it would be unreasonable to require them to get a warrant before breaking down the door. Such a requirement would gravely endanger public safety. Again, the warrantless search is an application of the Fourth Amendment, not an emergency-based exception to it.

Once you grasp this, it becomes easy to see that Schumer’s campaign against the Second Amendment derives no help from the Fourth Amendment. He wants to limit gun rights whenever the government claims that there is an emergency or that some proposed restriction is reasonable. The example du jour is when the government places a person on a terrorist watch list without giving him due process (i.e., prior notice of the government’s intended action and a right to be heard in opposition).

Schumer wants to limit gun rights whenever the government claims that there is an emergency or that some proposed restriction is reasonable.

Yet, notice the pertinent language of the Second Amendment: “The right of the people to keep and bear Arms, shall not be infringed.” In stark contrast to the Fourth Amendment, the Second Amendment does not say gun rights “shall not be unreasonably infringed.” Reasonableness has nothing to do with the matter, nor does crisis management. How could they? The Second Amendment aims to maintain the people’s power of self-defense, including against the government. Since that is the point of the right, nothing could be more unreasonable than to allow its restriction by the government.

Statists like Senator Schumer and President Obama, especially when they are in power, view the government as a well-meaning extension of themselves. They never see themselves as tyrannical. When they want to restrict our liberties, it is out of the conviction that they will make better choices for us. The Framers understood, though, that the road to tyranny was paved with the good intentions of those who, to paraphrase Dostoyevsky, loved humanity in the abstract but held individual humans in contempt.

Of course, none of this means gun possession is without limitation. As the Supreme Court explained in Heller (op. at p. 54 & ff.), “the right to keep and bear arms” that pre-existed the Constitution had certain longstanding, well-known limitations on it. Those exceptions were understood to be incorporated in the right guaranteed by the Second Amendment. Convicted felons and the mentally ill, to take the two clearest examples, may be denied the right to keep and bear arms. Nothing prevents Congress from codifying these longstanding limitations, and federal law has long done so. But again, these are limitations understood to be built into the Second Amendment, not additional, emergency-based restrictions that erode the Second Amendment.

If Democrats really want to find an edifying analogy to the Second Amendment elsewhere in the Constitution, they might look to the First Amendment.

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“The freedom of speech,” like “the right of the people to keep and bear Arms,” appears unrestricted at first blush. Yet, at the time of its adoption, there were various longstanding and well-known limitations on it. As the Supreme Court explained in Chaplinsky v. New Hampshire (1942), “these include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Consequently, laws limiting speech on these grounds are not post-constitutional exceptions to the First Amendment justified by government’s purported need to react to some emergency or other. They reflect the First Amendment as it was designed to operate.

No one is more aware than I am of the dangers of jihadist terror. But after many years of working in both government and counterterrorism, I am equally well aware of two other things. First, our counterterrorism laws are extremely expansive, empowering the government to arrest and convict terrorists on evidence well short of actual attacks (broadly defined conspiracies, attempts, threats, incitements, material support, etc.). Second, the government is notorious for both errors and arbitrary suspicions, such that any list it compiles — in the absence of a requirement that it prove its suspicions — will be vastly over-inclusive.

#related#If the government wants to be appropriately aggressive about keeping guns away from terrorists, it should be more aggressive in prosecuting terrorists — which means exploiting the expansive counterterrorism laws and shedding the political correctness that turns a blind eye to radical Islamic ideology. But a vague, unproven suspicion that a suspect is given no opportunity to challenge is no basis to deprive an American of a fundamental right that does not come from government, that is actually a protection against government, and that government has no legitimate power to restrict.

There is no “emergency powers” doctrine that authorizes the government to restrict Second Amendment rights. Such a doctrine would advance the Democrats’ statist objective: an omnipotent government . . . run by Democrats. In the short term, however, it would undermine our natural right to defend ourselves when government cannot. In the long term, it would fatally wound the Constitution, our defense against omnipotent government.


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