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April 01, 2005

Con Law

Mark Mulligan, guest-blogging over at Clay's site, raises some interesting questions about the differences among the Amendments in the Bill of Rights, especially where they concern Jose Padilla.

I understand the arguments against gun control. Criminals and terrorists arenít going to Wal-Mart or Garts. Iím just trying to understand the process by which we decided that the 2nd amendment was sacrosanct and the 5th and 6th werenít. I donít remember a national debate. The government decided for us and we went along.

If everything about Jose Padilla is true and can be proved in court I want him locked away in a deep hole for a long time. However, if it isnít Ė given who his friends are - Iím not sure I want him owning a gun.

The 4th, 5th, and 6th Amendments are qualitatively different from the 2nd in at least two ways.

First, the government is a direct agent in Amendments 4,5, and 6. Therefore, it can take or not take actions that the courts can rule on. If the government were selling guns, like Virginia used to sell liquor, it could probably try to issue an administrative "Do Not Sell To" list that could also be challenged in court.

Secondly, Amendments 4, 5, and 6 enjoin actions by the government. Amendment 2 protects specific actions by me. The freedom to walk the streets freely may follow from 4-5-6, but it's indirect.

In that sense, the 1st Amendment is much like the 2nd. There are plenty of non-shooting positions in a terrorist operation, and I'm not sure I'd like Padilla wandering around collecting Saudi jihadist literature after Friday prayers, either. But I'm also not sure I could stop him.

For that reason, the context of actions taken under the 1st or 2nd Amendment matters. If my target terrorist organization is meeting at a mosque, the FBI can follow the guy right into prayers and eavesdrop on his conversations. Likewise, the purchase of a gun may be evidence of criminal intent, given the right context.

Again, any of this is subject to modification by the law, but where you're starting from matters.

Posted by joshuasharf at April 1, 2005 07:02 AM | TrackBack

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