Wednesday, June 23

Guns, Planes, And The Second Amendment


The late William F. Buckley once said “A conservative is a fellow who is standing athwart history yelling 'Stop!'” Buckley was a member of that generation of conservatives, along with Russell Kirk, James J. Kilpatrick, Jeanne Kirkpatrick, Mary Ann Glendon, and William Rusher – and very much unlike so many of today’s conservatives -- who were thoughtful, learned, witty, urbane, and well-schooled in nuanced rhetoric.  For that reason, I would recommend that leftists and progressives heed the wisdom in Buckley’s maxim, and, likewise yelling “Stop!”, similarly stand athwart their own almost-unanimous consensus about the supposed inconsistency in prohibiting people with suspected terrorist proclivities from boarding planes while nevertheless allowing them to purchase firearms.  For the contradiction is only apparent, an apples-and-avocados comparison that obscures much more serious fundamental-rights issues that include, but go far beyond, the more obvious Second Amendment matters. Pretending that the two -- being an airline passenger and a gun owner -- are in any way comparable only trivializes both.


Like it or not, the Supreme Court, in the DC vs. Heller decision of 2008 and in the McDonald vs. Chicago decision of 2010, (a) ruled in the former opinion that the individual possession of firearms, for purely individual purposes like recreation and self-protection, is a fundamental constitutional right with no necessary and essential connection to any type of military service; and (b) in the latter that the Second-Amendment right at issue in (a) is, via the “equal protection” clause of Section 1 of the 14th Amendment, “incorporated” against the States, so that whatever the Federal government cannot do the States are likewise prohibited from doing. Together (a) and (b) have two immediate effects.  Regarding (a), the term “fundamental right” has a fairly specific, even technical, meaning in constitutional law. Specifically, when a court – almost always the Supreme Court – recognizes any given right as “fundamental,” such a designation has two immediate effects. The first such consequence is that designating a right “fundamental” means that any subsequent law proposing any abridgement of that right is subject to a “strict scrutiny” level of judicial review. That is to say, the law proposing the abridgement or restriction is presumptively unconstitutional:  the burden of proof is on the government to demonstrate that the proposed restriction is consistent with the US Constitution. That is why, e.g., restrictions on the press and speech based purely on content are immediately suspect:  proposals to limit the content of the speech are subject to strict scrutiny. (Speech restrictions are often justified for reasons other than content, e.g., volume of loudspeakers, regulating traffic flow around parades, speakers’ lists at school-board meetings, etc.) Hence Westboro Baptist signs reading “God Hates Gays” are protected by the “abridgement” clause of the First Amendment. Intuitively, you might think of proposed restrictions on fundamental rights as being “guilty until proven innocent”.


The second consequence of recognizing a given right as “fundamental” is that, in general, in order for any fundamental-right restriction to be permissible, the government must do two things:  (1) demonstrate that it has a “compelling interest” in imposing a restriction, and that (2) the government is using the “least restrictive means” to implement this restriction. To cite a recent example, these two criteria were the core of religious objections to the contraceptive mandate in the Affordable Care Act.  The government argued convincingly that the Nation has a “compelling interest” in ensuring the ready availability of contraceptive devices and substances to female employees of private companies – religious organizations excepted – and so satisfied the "compelling interest" criterion of (1). But it ran afoul of the "least restrictive means" criterion of (2) because – so the argument was made by the Green family in, e.g., the Hobby Lobby case – to make contraceptives available to employees under the company's  group insurance plan would violate the personal "pro-life" religious beliefs of the owners, since some of the approved contraceptives were allegedly abortifacients. (The “free exercise” clause of the First Amendment has long been recognized as a fundamental right.) In other words, the means for accomplishing the availability of contraceptives was insufficiently restrictive. The practical consequence of restricting fundamental rights via (1) and (2) is that – with a sparse handful of exceptions – the overall requirement of “strict scrutiny” judicial review means that most fundamental-rights restrictions are ruled unconstitutional.

By contrast, being a passenger on a commercial aircraft is not a right, fundamental or statutory. Rather, being an airline passenger is much more like driving:  a privilege, not a right.  To be sure, as the old Southwest Airlines TV commercial used to say, one is "free to get up and move about the country", a "liberty interest" inscribed in the "due process" clause of the Fifth Amendment.  But there is no such thing as any right to board a commercial airliner, least of all a right hallowed by anything comparable to Heller and McDonald.  (I suppose I should say that there are quite serious "due process" questions about the "no-fly" list. But getting one's name added to the "no-fly" list is an action by the government that occurs considerably "upstream" from actually boarding a plane, and there are serious questions regarding the constitutionality of such a list. Remarkably, the ACLU, Fox News, and the Federalist Society all concur in questioning the legitimacy of the "no-fly" list. But the constitutionality of the "no-fly" list is a whole separate rant du jour.) I continue to be a die-hard adherent of the late Chief Justice Burger's interpretation of the Second Amendment.  But, agree or disagree, the Court has spoken, and I also agree with the late Chief Justice John Marshall in Marbury v. Madison:  "It is emphatically the province and duty of the Judicial Department [the judicial Branch] to say what the law is." Unless and until a subsequent Court reverses Heller, the Second Amendment grants a fundamental right to individual gun ownership. It is the Court's ruling, not my lack of concurrence, that is decisive. Period.

In my opinion, and speaking only for myself, that is entirely as it should be.  No argument.

But now consider the recently designated fundamental right to individual gun purchase and ownership under the post-Heller / -McDonald understanding of the Second Amendment.  First, let’s ask whether in general it is ever, under any circumstances, permissible to restrict or to abridge any fundamental right.  The answer is “Yes, of course”.  Fundamental rights are as subject to restriction as any other rights. One has a fundamental "free exercise" right for religious observance, but if one's religion mandates infant sacrifice, this practice will not be permitted. With respect to gun rights in particular, individuals with a felony conviction are usually not permitted to own a gun.  Likewise individuals who have been arrested, are under indictment, and awaiting trial. But in those cases, the judicial system and law enforcement have already gathered evidence, have already issued warrants based thereon, have already arrested the suspect, may even have already tried and convicted and imprisoned the accused.  The individual has already been given the full measure of constitutional protections guaranteed by, e.g., the Fourth, Fifth, Sixth, and Eighth Amendments.  But what about earlier in this process?  In fact, what about in the earliest stages?  Are fundamental rights subject to any form of abridgement or restriction at the very beginning before the wheels of the judicial machine have completed even a quarter-turn? The answer here is, not categorically “Yes,” but “Yes, provided … “ in light of what is probably the classic 1968 case of Terry v. Ohio.  The “provided” is critically important.

At issue in Terry was the constitutionality of allowing a police officer who had stopped Mr. Terry to briefly detain Mr. Terry long enough to perform a light outer-garment search, based on the detaining officer’s “reasonable suspicion” that Mr. Terry and his partners were in the process of preparing to commit a crime.  Clearly, for the brief duration of the search, one could argue, as Mr. Terry argued, that his fundamental Fourth Amendment right to be free of unreasonable searches was being violated, given that the officer based both the detention and the subsequent search on “reasonable suspicion” instead of even “probable cause” and least of all on hard, tangible evidence.  The case was appealed all the way to the Supreme Court, which ruled that, yes, detaining Mr. Terry briefly on the basis of “reasonable suspicion” – the Court’s term – was constitutional, and therefore not violative of the Fourth Amendment’s prohibition of “unreasonable” search, given that the detaining officer justified his actions, not with reference to some subjective and non-articulable “hunch” or “feeling,” but on the basis of his considered judgment and professional experience in law enforcement, coupled with his empirical observation of the conduct and deportment of the plaintiff. However, the Court also added that such detentions and searches – now referred to colloquially as “Terry searches” – must be of very limited duration … and certainly may never be indefinitely prolonged in anticipation of what might at some point be found on a protracted “fishing expedition”. The duration of the abridgement of a Fourth Amendment right must vary proportionately with the substantiveness of the justifying cause.


This principle is obviously applicable to the case of the suspected terrorist sympathizer who wants to buy a firearm.  In both cases – dealing with a suspicious individual and dealing with a suspected terrorist – we are addressing a fundamental right:  the fundamental “liberty interest” in being free of unreasonable searches, and the fundamental right to gun ownership. As different as the cases are in other ways, they both are the same in posing a common question:   how much of a restriction of a fundamental right is justified, based on the substantiveness of the suspicion? In both cases, there is also an implicit time element.  If the officer had detained Mr. Terry and, during the brief period of detention, discovered that Mr. Terry was under indictment in, say, three States for armed robbery, had two strikes against him already for same, and was concealing a locked-and-loaded Glock-9 in his waistband, Mr. Terry would presumably have been subject to outright arrest – all of which might well be determined within the narrow window of the detainment.  But as a matter of practical fact, dealing with suspected terrorists or  terrorist “wanna-bes” who want to buy guns might well be much different. Remember how long it took the CIA to run to ground UBL’s messenger, Abu Ahmed al-Kuwaiti.  Suppose al-Kuwaiti had been an American national – like, let’s say, Omar Mateen, who was born in Queens – except equally elusive.  Would it be constitutionally permissible for an American version of al-Kuwaiti to be denied permission to purchase a gun for the months and years it took to locate and to positively identify the real-life al-Kuwaiti?  Would the "Terry search" guideline of brief detention -- based, not on "probable cause," but only on "reasonable suspicion" -- permit an indefinite prohibition on gun purchase? E.g., the Cornyn amendment to one of the four recently failed gun-control bills specified a three-day interdiction on a gun purchase. I suspect this would be consistent with Terry, but would it be long enough to substantiate a "reasonable suspicion" of terrorist connections? I don’t know, but I would venture to say “No”.  Again, I don’t know, but I strongly suspect that our hypothetical incipient terrorist, perhaps after a brief pro forma inquiry, would be permitted to buy the gun.

Bottom line:  it seems to me that, if we are square-jawed and at-all-costs determined to keep weapons out of the hands of suspected -- one more time:  not convicted, but suspected -- terrorists, we would have to be prepared to set an important precedent of abridging a fundamental right indefinitely on only the basis of “reasonable suspicion,” until “reasonable suspicion” could mature and ripen, assuming it ever did, into actual “probable cause” substantive enough to justify an actual warrant and an arrest. And, as in the case of  al-Kuwaiti, that could take weeks … months … years.  As I said “indefinitely”.  Using “reasonable suspicion” as a tool to interdict terrorism would mean something like Terry v. Ohio, except on steroids. In practice, this would amount to a de facto repeal of the "unreasonable search and seizure" clause of the Fourth Amendment.

So what would be wrong with that?

Everything. Consider:


o Local law enforcement has a “reasonable suspicion” that your church, which has a longstanding tradition of being involved as an advocate for undocumented immigrants, is, in fact, functioning as a stop on a clandestine underground railroad facilitating illegal border crossings.  Based only on nothing more substantive than “reasonable suspicion,” would the government be justified in closing down your church for an indefinite period of time – weeks or months – to pursue evidence sufficient to turn “reasonable suspicion” into “probable cause” for the arrest, indictment, and prosecution of church officers and ministers?

o For the last several months, I have written multiple columns severely critical of the candidacy of Donald J. Trump and a Republican Party that is apparently capable of gestating such a grotesque moral and political def0rmity. If my columns ever prompted a level of criticism sufficient to engender “reasonable suspicion” that I intend harm to Mr. Trump or his supporters, could the government -- only on the basis of “reasonable suspicion” and with no "probable cause" – subject me to a gag order or detain me for some indefinite period of time? (There are nuances here I am glossing over for the sake of brevity, e.g., I am assuming that my writings stayed well clear of actual and explicit incitement to harm, which is not protected speech under the First Amendment.  It is not always clear where this line is.)

With regard to the specific issue of a suspected terrorist or terrorist sympathizer buying a gun, the critical question, it seems to me, is this:  given that one can cite Terry as precedent for interdicting a fundamental right, in this case, gun ownership, for some very limited period of time -- think in terms of a few hours, or (per the Cornyn amendment) at most a few days -- based only on "reasonable suspicion," could we reasonably expect to uncover the real motivations of the terrorist suspect within the time limits imposed by something like a “Terry search”? If not, would we be willing to extend the justification for the abridgement of fundamental rights on the basis of “reasonable suspicion” so as to give precedence to the interdiction of terrorism, and not, as now, the protection of individual rights? And if the answer to that question is "No," and if we still insist that "reasonable suspicion" can justify only transient, limited, and ad hoc restrictions on fundamental rights, then -- remembering how long it took to bring al-Kuwaiti to the surface -- the relevant question becomes "Why bother?"

Prohibiting gun ownership on the basis of "reasonable suspicion" while nevertheless respecting the time restrictions of a "Terry search" would probably give us the illusion that we are "doing something" about terrorism, just as New York's former "stop and frisk" searches -- which were often not true "Terry searches," but keyed on skin color and socio-economics -- gave the illusion of "fighting crime":  the transient shot of testosterone might make us feel good, but that would be about all.  The alternative would be to begin to dismantle the Fourth Amendment one piece at a time, already dangerously undermined by, e.g., Utah v. Strieff, and, because the unintended consequences of doing so would extend far beyond Second Amendment issues, that would be a classical case of the "cure" being worse than the disease.

James R. Cowles

Image credits:
Minuteman ... Creative Commons Attribution 2.0
SCOTUS Justices ... public domain
Contemporaryt handguns ... CC BY-SA 3.0
PFLP group ... public domain
Stop and frisk ... David Waksman ... "Law Enforcement Today," 2016

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