Why we are 2nd Amendment fundamentalists but the 4th Amendment doesn’t count
By Juan Cole
The Second Amendment to the Constitution is interpreted by lawmakers and judges in an absolute manner. Every American, we are constantly told– even mentally ill ones like the shooter at Santa Monica College who killed 6 persons on Friday, hunting our children as though they were wild game– has the right to stockpile semi-automatic weapons and thousands of rounds of ammunition. This bizarre attitude toward high-powered firearms is unexampled in the rest of the world outside perhaps Yemen.
A majority of Americans would like a less fundamentalist interpretation of the 2nd Amendment. But the arms manufacturers that pour millions into the coffers of Congress and of the National Rifle Association get a veto on gun legislation. At stake are billions of dollars in profits (the assault weapons that can be freely bought at Walmart sell like hotcakes).
In contrast, the Fourth Amendment is never interpreted in a fundamentalist manner. It says,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now, who you telephone, for how long and when, is a personal “effect” by any common sense definition. But the National Security Agency has requisitioned that information from Verizon, according to The Guardian’s Glenn Greenwald. And your email is also the 21st century equivalent of “papers.”
Note that you can go to the Post Office and put a first class letter in an envelope in the hands of the government itself to deliver for you, and the government cannot open that letter without a warrant. I mean, it is actually in their custody, and they don’t have access to its contents. Because the Fourth Amendment is held by the judges to apply to first class land mail. Getting a warrant would require the government agents to be very specific about the letter they wanted to open, and to give pretty good evidence that a law is being broken.
But since the misnamed PATRIOT USA Act, the government is asserting that it can look at your email, telephone records, etc., without a warrant and at will. No precise specification. No evidence of wrong-doing. This scatter-shot snooping can take place even though your email has nothing to do with the government– you haven’t given it to them, you are typically a private person using a private company with an expectation of privacy.
If US Federal agents swooped into Google’s headquarters in SWAT gear and raided Google’s file cabinets without a warrant, the Republicans in Congress and the anchors at Fox would all have brain aneurysms. But if Federal agents swoop into Google’s servers and read the email of ordinary people, that seems to be all right. Our Constitutional rights increasingly only extend to Corporate citizens; the rest of us are second class.
I don’t think you have to be a fourth amendment fundamentalist to find this government intrusion unconstitutional and creepy
I am genuinely puzzled as to why the Fourth Amendment is no longer taken seriously, much less literally, by any significant faction in American politics. My hypothesis is that whereas the gun manufacturers clearly make big bucks off their weird absolutist interpretation of the 2nd Amendment, there is no set of corporations that would lose billions of dollars if the government snoops into your phone records or email traffic. Oh, Google might suffer versus Yahoo among consumers if the former let the NSA have access to its servers but the latter did not, but the government has neutralized that issue by dragooning both of them. (They deny it, but they are forced to deny it by the terms of the PATRIOT Act, which disallows victims’ disclosure of government bullying).
Since what counts in American politics is campaign dollars, there’s no real pressure for the Fourth Amendment. There are no corporate coffers at stake, only harm done to everyday citizens like you and me, and the system no longer serves us.
So we have to allow mentally ill people to have high-powered weaponry and to go on safaris hunting our children in our schools. But we can’t push back against Big Brother in our private communications.
Some will argue that fear of terrorism is at play here. But over the past 12 years about 300 Americans a year on average were killed by terrorism (in the past *ten* years it would be less than 10 a year on average). Between murders and suicides, 30,000 a year die of gunshot wounds. We’re told nothing can be done about the 30,000 dead a year. But the much less deadly terrorism means we have to trash the constitution. If there were a corporate sector that made billions off the fourth amendment, we’d be told that a little terrorism is the price of living in a free society. It is the amendments that affect the first class citizens that are important.
Edward Snowden, the whistleblower in the PRISM case of government snooping into our emails at will, may face extradition from Hong Kong and prosecution and a lengthy prison term. Yet he was not a government employee, working instead for Booz, Allen, and merely reneged on a pledge he had signed.
But the agents of the NSA and other security agencies, the Congressmen, the judges, and Barack Obama, who are all complicit in PRISM and other such programs, are contravening the constitution itself. That is a fundamental form of law-breaking, going beyond contravening an employment oath or even breaking a statute. They are held harmless but Snowden is in danger.
Snowden upheld the Constitution and our basic Fourth Amendment rights. But there’s no corporation in his corner, so he is up the creek. Meanwhile the Santa Monica Massacre has already faded from the news cycle.