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Tuesday, January 27, 2015

Extending Unequal Second Amendment Rights

Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens.  We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen.  But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm. 

We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites.  (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.)  Then there's Driving While Black.  I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.

And that's a sticky problem.  Under current law, there isn't much you can do except to change police conduct from within.  Courts don't have a lot of sway.  Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search.  That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.

With the expansion of the Second Amendment, we have a chance to think more about the problem early on.  Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights.  But it seems likely that these new rights will not be extended equally.  First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will  embed historical racial disparities in arrest, prosecution, and conviction.   Theres more, however.  In my mind,  the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include  the right to carry a gun and not get stopped and searched for doing so.  In that respect, I fear we won't deliver equal rights.  

And those disparities only reflect the burdens imposed by the state.  It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights.  As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.

So what to do?  One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit.  The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately.  (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.)  But is there a third way?  Could we view it as a property right which is impaired when a person is subject to a search?  Might there be a novel Fifth Amendment claim here?  Could we impose a tax on guns that is used to fund a statutory compensation scheme?  Is there a way, other than the exclusionary rule, to disincentive police over-reach?  (Something like Richard  Myers' Fourth Amendment Small Claims Court?)

This is all half-baked, but it's a problem that troubles me.  I'd love thoughts.

Posted by Dan Filler on January 27, 2015 at 11:53 AM in Constitutional thoughts, Criminal Law, Current Affairs, Property | Permalink


"Is self-defense tied into equal protection?"

How could it not be?

Posted by: Barry | Jan 30, 2015 11:59:06 AM

Perhaps this is a "half-baked" problem because of Scalia's dicta in 5-4 time in Heller (carried to the states in 5-4 time in McDonald via 14th A incorporation). The Court has yet to take another 2nd A case since McDonald (2010). But what about the matter of 2nd A self-defense introduced in Heller? Erie informs us that there is no federal common law. Self-defense is not universally defined by states and the concept of self defense has changed - evolved - both at common law and by statute in states since the adopted of the bill of rights as well as since the 14th A. Is the African-American entitled to self-defense? Is self-defense tied into equal protection?

Posted by: Shag from Brookline | Jan 28, 2015 9:32:27 AM

I appreciate the discussion -- a range of constitutional rights as applied result in discriminatory protection. Thus, e.g., in not not too distant past mere association in public places could readily get homosexuals arrested.

I welcome discussion of solutions. As to the "property" concern, that is already a major issue in 4A cases, including the GPS case (five justices resting on the device invading a person's property). But, search of a person to me seems more like a liberty concern. The wrongful seizure of the gun is property related.

"Small claims" type methods are intriguing. Courts can be expensive and drawn out. There must be quicker and cheaper means here too.

Posted by: Joe | Jan 27, 2015 2:04:26 PM

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