Illegal Guns and the Fourth Amendment

"GUNS DON'T KILL PEOPLE, PEOPLE KILL PEOPLE."

So goes the argument for not curtailing gun ownership. The corollary, however, is that people kill people with guns. Under no circumstances do I want to undermine the right of any American citizen to keep and bear arms. Even more fundamental are the guarantees in the 4th Amendment to the Constitution of the United States that prohibits search and seizure without due process of law. If anything, I would expand its reach. But therein lies the conundrum.

Our large cities are awash in blood. Gang members kill each other, and hundreds of innocent people who get in their way. Criminals, who worry as little about whether their guns are legal as about the other laws they break, obtain their weapons on the black market. And, finally, terrorists encircle the world with guns and bombs they find easy to obtain wherever they are. In an open and "free" society like the U.S., we begin to feel impotent to make a difference. If only the police could just stop and search someone they "know" has a gun or bomb, we could feel safer. Unfortunately, as Ben Franklin once quipped, "those who would trade individual freedom for a little security deserve neither and will lose both."

So, what are we to do? Is there an answer that would increase our security while protecting the constitutionally guaranteed freedoms our forefathers fought so hard to protect? The answer is yes.

The answer is to view the 4th Amendment through the lens of the purpose which the framers of the constitution had in mind, not just for the words they used. Its purpose is to protect individuals from prosecution by a government run amok. It prevents police from randomly searching people, finding (or planting) evidence of some crime on them, in their homes and their work places, and using it to send them to jail. Its purpose was never to make the country less safe. So, let's view it in its original sense and we can make a change.

There is one instance in which police can stop someone who is neither in the process of committing a crime, nor about whom they have "probable cause" to believe they have committed one. It has become known as a "Terry Stop." If the police have "reasonable suspicion" that a person is committing or committed a crime, they can "stop and frisk" them in order to prevent harm to themselves as they go about their investigation. This is a specific exception allowed by the Supreme Court in order to allow police to protect themselves. Still, they need "reasonable suspicion" to perform the "stop and frisk," and the vagueness of those words have produced a plethora of defense verdicts because the courts are constantly trying to interpret what they mean. Suppose they didn't have to.

Let's give the police the statutory authority to "stop and frisk" anyone they think might be carrying an illegal weapon. The beat cop, for example, who knows who the gang members are, and which ones are likely carrying a gun, cannot stop him and frisk them without reasonable suspicion; but suppose he could. Since the purpose of the 4th Amendment is to protect individuals from prosecution resulting from such warrantless searches and seizures, let's allow the police to "stop and frisk" (not search) someone if they think they are carrying an illegal weapon, but deny its use as evidence against that individual for the purpose of prosecution. What does that do? It removes thousands of guns from the streets so that they are not used in crimes. Yes, the criminal goes free, but without their illegal gun. Eventually, the number of guns on the street will shrink and the homicide rate will go down. The terrorist may walk away, but without his bomb (of course we'll know who he is, then, and watch him), and people would be prevented from being killed. Nor could the police introduce other things they discover in that way into evidence, such as drugs. They can confiscate them, but the person walks away without prosecution. And what of those of us with legal weapons? We show the police our permit, they are returned, and we go on our way.

We might be a little embarrassed by being frisked in the beginning, and this doesn't solve the problem of crime, but in the end, we'll all be safer, and no individual rights would be abridged.