Rights Are Bundled, Not A La Carte
Dec. 8, 2015 (Mimesis Law) — I like my HBO and my AMC and my FX. But Discovery? History? TBS? I could take them or leave them. And if my kids couldn’t stare at Disney all day – well, that would be an improvement. That’s why I’m happy to hear that some cable companies are moving towards a-la-carte pricing, so I can pick and choose my channels and not pay for ones I never use. Americans are picky beasts and consumer choice is good for innovation.
Constitutional rights aren’t like that.
Constitutional rights come in a bundle. You may not see the whole bundle; you may only see the particular stick you are holding at any given moment, like free speech or the right to counsel or the right to be free from unreasonable searches. But the bundle is there, and the thread holding it all together is thin. If you pull on your favorite stick too hard trying to separate it, the whole thing falls apart.
This week one stick – the Second Amendment right to bear arms – is illustrating the nature of the bundle. In the wake of the horrific San Bernardino shootings, many politicians and commentators called for gun control. In most cases, the call wasn’t a request for sober analysis of what sort of restrictions are consistent with the post-Heller Second Amendment. Rather, the calls were of a baby-with-the-bathwater variety: they were assertions that we can’t afford a right to bear arms when it leads to tragedies like this one. Chief among the alarm-sounders was the President of the United States, who advocated forbidding people on the shadowy no-fly list from buying guns:
Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon? This is a matter of national security.
The President’s call to action was classic a la carte thinking: he was suggesting you could pluck one obviously ridiculous proposed right (the right of terrorists to buy dangerous weapons) from an interconnected bundle of rights in the name of danger. But that stick is connected to the rest of the sticks. First, bear in mind that “semi-automatic weapons” include nearly every modern handgun on the market – it just means a gun that loads the next bullet into the chamber after you fire it, so you can fire a shot every time you pull the trigger. It just sounds scary to some people. The President is therefore talking about almost everything except for bolt-action rifles and very old revolvers.
Second, bear in mind that the “no-fly list” is not the result of due process. It’s a mostly unreviewable, often arbitrary, sometimes-incompetently-amassed list of people suspected of a wide variety of conduct, or people with the same names as others suspected of bad conduct. It’s based on questionable science like ”predictive assessments,” is highly susceptible to bad-faith classification of peaceful protestors as dangerous, and it’s near-impossible to get off of it. In short, if it’s used to deny any protected right, it’s a nightmare.
But the President, and other gun-control advocates, think that you can deny this one (unpopular-in-some-circles) right from this one cobbled-together group without threatening other rights. They’re wrong. That’s not how rights work. Rights are bound together by the thread of precedent and process – by the way we treat any given right under scary circumstances, and by the methodology we use to make exceptions to rights when it’s popular or expedient.
To see this process in action, look no further than Emily Badger at the Washington Post explaining why Second Amendment rights aren’t absolute. Post-Heller caselaw is sparse; courts haven’t yet identified the exact contours of the individual right to bear arms and its permissible exceptions. So Ms. Badger uses precedent. You know the Second Amendment isn’t absolute because the First Amendment isn’t absolute, she reasons. She cites the canard that you can’t falsely yell fire in a crowded theater – thus relying on Justice Holmes’ contemptible and subsequently abandoned apologia for jailing draft protestors. The Fourth Amendment isn’t absolute because you can be stopped at drunk-driving checkpoints, she says – thus invoking a controversial 6-3 Supreme Court decision that lets the constabulary stop citizens without individualized suspicion.
Your right to private property can be limited by eminent domain, Ms. Badger continues – perhaps thinking of a different bitterly divided Court allowing the state to confiscate private homes for the good of crony private developers, only to see them abandoned to slow decay when said cronies decamp. In arguing that limits on Second Amendment rights are reasonable, Ms. Badger has neatly illustrated how limiting rights you don’t like may later be used to limit rights you do like.
Or, if you prefer, consider the dialogue surrounding GOP candidate Donald Trump’s incendiary proposal to halt Muslims from entering the country – perhaps even citizens. Trump and his supporters drew further ire by suggesting that FDR’s internment of Japanese-Americans set a precedent. But here’s the point: he’s right. It did set a precedent. That decision about the rights of a group of despised and suspected people under frightening circumstances set a precedent for future situations, one that has often been invoked to justify a wide variety of deprivation of rights. Depriving right X from group Y makes it easier to deprive group A of right B, even three-quarters of a century later.
Few of us are innocent of trying to pull apart the bundle of rights. Criminal defense attorneys like me fight tooth and nail for Fourth and Fifth Amendment rights but can be wobbly on traditionally “conservative” rights like the Second Amendment. Conservatives can champion property rights and the Second Amendment, but shrug when the state wants to hold a “suspected terrorist” without anything resembling due process. Liberals can decry police deprivation of rights and the unfairness of the criminal justice system – until a defendant is accused of a hate crime or sexual assault.
We act as if one scenario doesn’t matter to the other. But it does. I’m not saying that all rights are absolute. They aren’t. But when we’re faced with a proposed limitation on any right, we must bear in mind the risk to all of them. We’re not just defending the stick. We’re defending the bundle.
Ken White is a civil and criminal litigator at Brown White & Osborn LLP in Los Angeles. He blogs about law atPopehat.com.