Bill of Rights on the Table

The U.S. Supreme Court in District of Columbia v. Heller just held a D.C. law banning handguns violative of the Second Amendment to the U.S. Constitution. For the first time the Supreme Court struck down a law prohibiting firearms on Second Amendment grounds. The NRA is celebrating and so should the broader set of civil libertarians. This is not to say that there is anything particularly positive about the surge in handgun purchase and possession that this case will bring about. More guns means more shooting. More shooting means more death and maiming. Deaths and maimings are not generally cause for celebration. Justice Scalia, however, reasoned, essentially, that the clear (and "enshrined") language of the Second Amendment necessarily takes certain policy considerations off the table. In other words, arguing that a law banning handguns furthers a positive policy agenda (because it saves lives) is not going to compel the Supreme Court to ignore the plain language set forth in the Bill of Rights.

So, here's what I take from that: Unreasonable warrantless searches and seizures, coerced confessions, deprivations of procedural protections, inflictions of cruel and unusual punishment, restraints on free speech, interferances with the free exercise of religion, establishing an official religion, and myriad other deprivations of civil liberties by the government cannot, by Scalia's logic, be justified on the ground that they may further a positive policy agenda. In light of Heller I would now suggest a re-examination of the landmark U.S. Supreme Court case of Michigan v. Sitz, in particular. Why? Because the Court all but ignored the plain language of the Fourth Amendment to allow law enforcement to conduct systematic warrantless searches and seizures, in the shape of DUI checkpoints, to promote the positive policy agenda of preventing drunk driving. To argue that checkpoints are "reasonable" in a free society is to ignore a simple distinction: The other acknowledged exceptions to the warrant requirement (exigency, Terry, Leon, reasonable suspicion, etc.) do not deliberately and systematically cause the seizure and search of large swaths of law-abiding people in the name of crime prevention. The choice to allow these warrantless searches is done clearly in the name of a positive policy agenda which, as Scalia, would have it, should be "off the table".