Overreaction and the Constitution: Gun Show Loophole

20 06 2011

Reason Magazine’s Barton Hinkle has an interesting thought experiment: suppose that a document written by Mexican drug cartels was unearthed that specifically instructed its mules and distributors in the U.S. to exploit the protections of accused criminals in the U.S. justice system. Would that be reason enough to abrogate them?

Resembling nothing so much as an army field manual for mules and midlevel traffickers, the “Instrucciones” on shipping cocaine include a lengthy section on what to do if captured by U.S. authorities. Going into great detail about the legal rights of criminal defendants in America, it advises couriers to clam up, ask for an attorney, claim irregularities in the search (the exclusionary rule won’t allow tainted evidence in court), and so on.

Naturally, right-wingers have jumped on the story. “The pendulum has swung too far in the narcoterrorists’ favor,” intoned GOP presidential candidate Tim Pawlenty. Michele Bachmann demanded that Democrats join Republicans in rolling back any “technicalities” that work in the drug lords’ favor.

As usual, Sarah Palin went further than most: “The Constitution of this great country of ours that I love so much is not some kind of suicide deal,” she said (misquoting the late Supreme Court Justice Robert Jackson), “and that is why I am urging our Congress today to repeal back the Fourth”—i.e., to draw a blue line through the Fourth Amendment’s prohibition against unreasonable searches and seizures. [Emphasis added]

Palin is right. If drug dealers are exploiting our freedoms, then we no longer can afford them. Right?

Ha! Only kidding. None of that really happened. (Had you there for a second though, right?)

Hinkle goes on to point out that these were the exact reactions of liberal politicians and thinkers in the wake of evidence that an Islamic fundamentalist leader instructed cadres in the U.S. to exploit the so-called “gun show loophole” (essentially, the fact that individual, non-commercial gun sales are not seriously regulated) to get their hands on powerful weapons. In other words, the threat of abuse of our liberties by terrorists should be sufficient reason to limit those liberties.

It’s a seductive analogy and frankly a welcome one given the amount of cognitive dissonance among liberals when it comes to the government’s abuse of its power depending on who is in office and who is making the complaint. Nevertheless, it isn’t quite an apt analogy, because it begs the question in the literal sense, in that it assumes its own premise. Regulating the trade of guns is not as self-evident an interference with the 2nd Amendment as the suspension of habeus corpus used to justify the continued detention of Lakhdar Boumediene. Boumediene’s challenging of the suspension of habeus led to the 5-4 decision in Boumediene v. Bush and provides Winkle a point of comparison.

Much of the disagreement in Boumediene revolved around jurisdiction (or at least, that was the proxy through which the Court’s factions argued). But in that case, the government actually suspended a Constitutional liberty, and one that dates back to the seventeenth century. In Hinkle’s thought experiment, “drawing a blue line” through one of the pillars of American criminal justice is not the same as adding a regulation to the purchase of guns–the right to bear arms has no attendant right not to register a weapon or report its sale. Deleting the prohibition against unreasonable search and seizure is an order of magnitude more serious than regulating how a machine designed to kill and maim people that the Founding Fathers had not envisioned can be bought sold.

Winkle’s point is that going after the 2nd Amendment’s legal progeny because of terrorist exploitation is a slippery slope, and he’s not wrong in that concern at all. But the regulation of how deadly weapons are sold and who has them is significantly more distant from the right to bear arms than Miranda rights are from the right to refuse self-incrimination and the right to a fair trial from the 5th and 6th Amendments.

That said, excessive regulation of the expression of a right can amount to a sort of restraint that de facto infringes on that right. But that is a question of degree that can and should be debated by the people’s representatives in Congress and the courts.  I tepidly supported the over-turning of Chicago’s handgun ban, for example, because the evidence that banning just handguns (as opposed to all firearms) reduced violent crime was hardly conclusive, and stunk of public relations politics rather than reasoned public policy. In such circumstances, a law that touches upon a constitutional right should be scrutinized closely and courts should err on the side of the right rather than its inhibition.

Winkle’s thought experiment serves an important purpose though: pointing out how dangerous it is to react to exploitation of Constitutional protections by determined criminal actors by destroying those protections. In other words, while his argument is right in form, in this particular instance–better regulation of the “gun show loophole”–it does not really fly.


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