No Firearms Exception to the Fourth Amendment

By Dave Kopel

From the "Cultural Revolutions" sections of Chronicles magazine. August 2000, pp. 7-8. More by Kopel on the Fourth Amendment. Kopel's amicus brief in the J.L. case, on behalf of the Independence Institute and the National Rifle Association, is available here.

The Supreme Court attracts the most attention when it does something new, or does something so old that it seems new. For example, the decision last May in the Morrison case-declaring that Congress had no authority to enact the Violence Against Women Act under the guise of regulating interstate commerce-got lots of deserved media attention. Since 1995, the Supreme Court has begun some tentative enforcement of the Constitution's limitations on the powers granted to Congress. Since the Supreme Court had ignored this part of the Constitution from 1937 to 1995, the Supreme Court's renewed attention to the Enumerated Powers Doctrine does merit media attention.

But some of the Supreme Court's most important work is performed when the Court refuses to do something new-when the Court declines to create an "innovative" exception to constitutional rights. Thus, the most important Bill of Rights decision of the 1999-2000 Supreme Court Term came when the Court refused an invitation to invent a loophole that would have nearly destroyed the Fourth Amendment, which prohibits unreasonable searches and seizures.

In Florida v. J.L., an anonymous telephone tipster had claimed that young black male wearing a plaid shirt, and standing at a certain bus stop, was carrying a gun. Some police officers went to the bus stop, and saw three young black males, one with a plaid shirt. They frisked him, and found a gun.

Under existing Fourth Amendment doctrine, the search was plainly unconstitutional. The teenager, a fifteen-year-old, had not been doing anything illegal or suspicious, or which would make a police officer afraid about safety. The tipster was completely anonymous, and had said nothing beyond a bare accusation, so there was no way to evaluate the tipster's credibility or basis of knowledge.

After the Florida trial court, following current doctrine, suppressed evidence of the gun (since the gun had been illegally seized), the Florida Attorney General appealed the case, eventually reaching the U.S. Supreme Court. There, the Attorney General argued that there should be a "firearms exception" to the Fourth Amendment. Because guns are so dangerous, the Attorney General reasoned, searches for guns should not have to meet ordinary Fourth Amendment standards.

Writing for a unanimous Supreme Court, Justice Ruth Bader Ginsburg disagreed. Her opinion noted how easy it would be for citizens to be harassed if anonymous tips about guns could, by themselves, serve as the basis for an anonymous stop and frisk.

In the 1968 case Terry v. Ohio, the Supreme Court created a large Fourth Amendment loophole by allowing police officers to stop and frisk people who seemed to be acting in a suspicious manner. Although the Terry case was premised on the need for officer safety, in case the suspicious person were a criminal who might use a gun against the officer, the Terry case became the foundation for dozens of new Fourth Amendment exceptions, in situations having little to do with officer safety. Had the Florida Attorney General prevailed in Florida v. J.L., the case would have become the foundation of many more exceptions to the Fourth Amendment.

Although the J.L. case involved a frisk of a pedestrian, there would have been immediate pressure to apply the "firearms exception" to searches of automobiles, businesses, and homes. All over the country, prosecutors would have argued, sometimes with success, that the Fourth Amendment should also disappear in the alleged presence of other dangerous things-such as knives, brass knuckles, or drugs.

And since ordinary Fourth Amendment restrictions would not apply, mere assertions-rather than probable cause or reasonable suspicion-would have become the basis for searches, and everyone would be in jeopardy of being searched at whim.

The Supreme Court's swift and unanimous ruling may signal that the Court is unwilling to let political hysteria over guns be used to weaken the Bill of Rights. If so, today's Court is wiser than the Supreme Courts of the 1920s (when fear of communism was allowed to trump the First Amendment) or the 1980s (when the "drug war" was allowed to degenerate into a war on the Constitution).

Not since World War One has there been a Democratic President so aggressively hostile to the Bill of Rights, so it was unsurprising that the U.S. Solicitor General filed an amicus brief in favor of the "firearms exception."

What was surprising, however, was the broad collection of amici who wrote in support of the Fourth Amendment. The American Civil Liberties Union and the National Association of Criminal Defense Lawyers supplied amicus briefs, as they often do in Fourth Amendment cases. But so did the Rutherford Institute, which focuses mainly on freedom of religion. The National Rifle Association joined with the Independence Institute (a free-market think tank), in a brief which I co-authored, to point out that firearms carrying is common and legal in most the United States, and not inherently suspicious.

Even the Southern Poverty Law Center, which has spent much of the last decade raising direct mail revenue from credulous donors panicked about "militia terrorism," contributed an amicus brief on J.L.'s behalf.

Grover Norquist, head of Americans for Tax Reform, has observed the growth of a "Leave Us Alone Coalition"-in which disparate people come together to uphold principle that the government should leave people alone. People such as homeschoolers, gun owners, and hemp activists are realizing that protecting the lifestyles of people they don't like is the best way to ensure protection for their own lifestyle. Florida vs. J.L. was a great victory for the Bill of Rights. As groups such as J.L.'s very diverse amici come to understand their common interest in protecting every single one of the Bill of Rights, there will be more victories for the Constitution.

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