By David Kopel
Some folks think that all of our Constitutional freedoms are an unalloyed benefit. Don't believe them. Most of the freedoms in the Bill of Rights exact a heavy price from society. That's why most other countries, including all of our democratic allies, don't protect these freedoms with anything near the stringency we do.
Take the Fourth Amendment, which prohibits unreasonable searches and seizures. Many other democracies have a similar rule, but none of them have what our Supreme Court has invented: the exclusionary rule. Under the exclusionary rule, if police seize evidence illegally the evidence can't be admitted into court - no matter how important the evidence is.
Foreign visitors are shocked when they find out about the exclusionary rule. Although studies indicate that the rule prevents successful prosecution in only one percent of all criminal cases, one percent is a lot. Over the years the exclusionary rule has freed thousands of hardened criminals who have laughed at a society that let them go free. And no doubt these thousands of freed criminals went on to commit tens of thousands more crimes.
Most democratic countries forbid physical torture of a criminal suspect, but only America boxes in the police with such an elaborate set of rules designed to prevent psychologically coercing a suspect.
The hard truth is that without some pressure from the police most criminals won't confess. In many cases there isn't enough tangible evidence to convict someone without a confession. That's why the British allow a suspect to be held without outside contact for several days. The Japanese allow a person to be secretly detained for weeks at a time. In America, however, suspects must be told that they can have a free lawyer, to whom they can have nearly immediate access.
Criminal procedure isn't the only Constitutional field that features strict rules. Take the First Amendment. Current libel laws make it almost impossible for any public figure to recover damages for even the most vicious lies. The victim of libel must prove that the author misstated the facts "knowingly or recklessly." And since it's pretty hard to get inside the author's head and prove what he was thinking, the vast majority of libel plaintiffs lose.
Losing your reputation to a libel is horrible, but it's nothing like losing your son or your daughter to some cult leader. In most of the rest of the world Jim Jones would have been thrown into an insane asylum long before he led his victims off to poison death in Guyana. It's one thing to do what Britain does, and say the Protestants, Catholics and Jews ought to leave each other alone; it's something else entirely to do what we do, and let demons like Jones run free.
Many people believe that no Constitutional provision causes more damage than the Second Amendment's recognition of the right to keep and bear arms.
All-out national gun control couldn't keep professional criminals from buying guns, they concede, but they believe that controls would make it hard for young hoods to acquire the tools for a spur of the moment mugging. In addition, a widespread ban on gun ownership, if successful, theoretically would prevent many gun accidents.
So are strict Constitutional freedoms a bad idea? Not at all. By refusing to sanction illegal police behavior, a strong exclusionary rule protects the integrity of the judicial system. Unless illegally seized evidence is kept out of the courtroom, there is no practical incentive for the police to obey rules about searches and seizures.
Tough rules about coerced confessions were created precisely because lesser rules proved insufficient. In countries like Japan and Britain, where suspects can be held without outside contact, police abuse and torture of innocent suspects can and does occur.
America's broad freedom of religion does allow "cults" to flourish, but one person's cult is another person's true revelation. America is the birthplace of Baptists, Christian Scientists, Unitarians, Latter Day Saints, Reform Jews and many other groups that have blossomed under the bright sun of America's religious freedom. These groups are considered "cults" in many other nations, but America's tolerant spirit recognized that there are many paths to God, and that any attempt by the government to direct religious belief will ultimately harm both religion and society.
America's high standards of freedom of the press have made the American press especially bold a out ferreting out wrong-doing in high places. Unafraid of being slapped with a libel lawsuit, American reporters were able to uncover corrupt affairs such as Watergate and the Iran-Contra scandal that would have remained secret in other countries.
The Second Amendment right to bear arms inflicts (if the gun control lobbyists are right) significant costs on society. Part of the pro-rights response to the gun ban movement has been to point out that gun control does nothing to reduce harm associated with guns. Gun rights advocates also point out that firearms are used to prevent violent felonies hundreds of thousands of times a year. True enough, but it is also important to look at the long-run picture.
Whether or not widespread gun ownership increases or decreases accidents or crime, gun ownership is a long-run "holocaust insurance policy." Because the American people are armed, no American government could successfully perpetrate a policy of mass murder. In every country where genocide has occurred - including Cambodia, Uganda, the Soviet Union and Nazi Germany - the perpetrators have first disarmed their future victims. The ability of the American people forcefully to resist a tyrannical government could, in the long run, prevent tens of millions of deaths.
In the long run, the risks of a single maniac with a gun he bought over the counter are outweighed by the risks of a maniac with a standing army and no forceful citizen opposition. Hitler and Tojo killed far more people in a few years than have all the world's private gun misuses since the invention of gunpowder. And Hitler and Tojo were able to enjoy their monopoly of power in part because they had disarmed all potential resistance. Hitler's gun policies, like those proposed by many American gun control advocates, limited gun possession only to people who had been approved by the government, and allowed only the possession of guns which the government deemed suitable for sports. (For more information on Nazi gun controls, see the new book Gun Control: Gateway to Tyranny, published by Jews of the Preservation of Firearms Ownership (JPFO) Inc., 2872 S. Wentworth Ave., Milwaukee, WI 53207, (414) 769-0760)
The same points made about the Second Amendment apply to the rest of the Bill of Rights. Yes, press abuses of free speech cause harm every day of the year. But in the long run, much more serious harms could be inflicted by a government that had the ability to control the press. Criminals who are set free because of Bill of Rights protections cause harm, but a government that can search people in a police station without telling their relatives, can cause greater harm.
One of the important reasons that the American Bill of Rights was created was that its authors knew that there would always be short-run pressures of more government power, to deal with the social dislocations that sometimes result from liberty. The founders knew that certain freedoms, including free speech and the right to keep and bear arms, should be placed beyond the reach of transient and excitable majorities. In the long run, enforcing firm restraints on government is the most important way to protect public safety.