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Know Your Rights

eye on the news

Know Your Rights

At Monday’s debate, the two candidates took mirror-image positions on the judicial construction of certain individual rights. September 28, 2016
Politics and law

“We have to tackle the plague of gun violence, which is a big contributor to a lot of the problems that we’re seeing today,” said Democratic presidential nominee Hillary Clinton Monday night, in her answer to debate moderator Lester Holt’s question about bridging the nation’s racial divide. Republican candidate Donald Trump, using more Trumpian language, observed, “We have a situation where we have our inner cities, African-Americans, Hispanics are living in hell because it’s so dangerous. You walk down the street, you get shot.”

Academics, the media, political operatives, and even unengaged voters know how this discussion is supposed to go: the Democrat proposes gun-control measures, the Republican questions their effectiveness and constitutionality, and the Democrat equates opposition to the measures with tolerating continued violence. Not at this debate. Trump jumped in first, offering “stop and frisk” as a solution to the spiraling problem of inner-city violence.  It “worked very well in New York,” he argued. It is the way to “take the gun away from criminals that shouldn’t be having it.” Clinton parried by claiming that the policy is “unconstitutional” and “ineffective.” It’s important, she said, not to “go to things that sound good that did not really have the kind of impact that we would want.”

Refusing to accept Trump’s contention that the issue was caring about inner-city violence and “taking guns away from gangs and people that use them,” she countered: “Who disagrees with keeping neighborhoods safe? But let’s also add, no one should disagree about respecting the rights of young men who live in those neighborhoods.” This demand to take other rights into account echoed President Obama’s recent argument that not only the Bill of Rights but also the “inalienable right to life, and liberty, and the pursuit of happiness” was important and that “we have to be able to balance them”—except that she was making exactly the opposite point. The right that concerned her wasn’t young men’s right to stay alive in dangerous neighborhoods but the right of freedom from unreasonable searches.

For Clinton and Obama, when the constitutional amendment at issue is the Fourth, it takes priority; when it is the Second, it must be carefully balanced. If a police officer thinks you look suspicious, your Fourth Amendment rights remain inviolate; if the FBI places you on a terror watch-list, your Second Amendment rights evaporate. Stop-and-frisk must end because it fails to deliver “the kind of impact that we would want” in Clinton’s words; but for gun-control measures, according to Obama, the standard should be that “maybe we could try to stop one act of evil, one act of violence.”

Neither side is likely to appreciate that comparison. Gun-control advocates reject judicial construction of the Second Amendment as a significant individual right. But what constitutes a “reasonable” search under the Fourth Amendment must be judicially constructed as well. Stop-question-and-frisk advocates insist that interactions with the police are a minor inconvenience, which is what gun-control advocates say about their own proposed restrictions. Both highlight studies showing the effectiveness of their strategy and the futility of the other.

Instead, both sides might do well to ask themselves: To what extent must individual rights be subordinated to addressing the crisis of gun violence? What standard of theoretical or empirical evidence should we require before deploying a policy? And why is it that the extent of our concern for infringement on a group’s rights seems so closely correlated with the political support that we receive from that group?

Photo by Spencer Platt/Getty Images

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