Its the Corporations, Stupid: Why we are 2nd Amendment Fundamentalists but the 4th Amendment doesn’t Count

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,

“Amendment IV

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.

41 Responses

  1. With all due respects, why must people pit the 2nd Amendment against other amendments?

    It is entirely possible to be “fundamentalist” about both.

    So why not leave the 2nd Amendment out of it and concentrate on a robust interpretation of the 4th?

      • Few people- if any- are fundamentalist about any of them. You’ve weakened your argument by creating and whacking the strawman of the absolutist Second Amendment.’

        The Fourth has been getting trashed because it’s inconvenient to government and far too many people have any interest in protecting *criminals.*

    • Dr. Cole isn’t pitting amendments against each other, he is noting that the 4th lacks the adherents that the second does, and the governments according reluctance to fudge it’s lines.

  2. We’ve been engaging in a long-term subtle shift in emphasis in our interpretation of the Fourth Amendment. The Fourth Amendment consists of two conjoined main clauses which operate with potential dissonance: (1) “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 (2) “and no warrants shall issue, but upon probable cause,” etc. etc. The focus used to be on the warrant clause, with the idea that warrants are always required unless the search falls into narrow, traditionally recognized exceptions (eg. search incident to arrest, plain view), or the search was an administrative search in a traditionally heavily regulated activity. The requirement of a warrant was most important to the Founding Fathers, many of whom were upset and even personally affected by the tendency of the Brits to break into houses of suspected smugglers and tax evaders without warrants. This warrant requirement strand isn’t dead — it’s slumbering, however. In the conservative trending 80’s, the emphasis began to shift to the “reasonableness” clause. Previous thought equated “reasonableness” as the requirement of obtaining a warrant unless those traditional narrow exceptions existed. In the 80’s, judicial opinions began to proclaim that the touchstone of the Fourth Amendment was “reasonableness,” and a process of partial decoupling between the two clauses began. Thus, in New Jersey v. T.L.O., the Supreme Court in 1985 allowed public school officials to search a student’s bag for evidence of marijuana dealing in a reasonable manner based on reasonable suspicion of wrongdoing without any need for a warrant. This was and is a problematic development, because “reasonableness” is a most subjective standard. Once this shift in emphasis occurred, it became only a matter of time, and one national security crisis, to accept the idea that an search of persons was constitutionally “reasonable” so long as national security officials issued a “national security letter.” Thus, from 2003 to 2006 the Federal Bureau of Investigation issued 192,499 national security letter requests. With this shift, it’s easy to see how we’ve gotten to our present situation. How we’re going to recouple the two clauses of the Fourth Amendment and regain our rights under that Amendment is much harder to envision.

  3. I am not so sure this won’t hurt US corporations.

    I am a foreigner and so all my communications can be snooped on by the US govt without restriction. Most governments, corporations and individuals are not in the US but we use American supplied software, servers, services and internet routes. In IT, the US still rules the world.

    Nearly every foreign commercial and government communication is going through a US corporation and they will hand it over to their government without a qualm.

    I think the rest of the world is now thinking this through. Everything we touch can be examined and stopped by a foreign government which at times has been both paranoid and vindicative.

    I expect to see the dominance of US IT (Google, Apple, Microsoft, Facebook, Skype) to be challenged over the next few years. We simply can’t trust the US.

  4. Valid point about the Fourth Amendment. Interesting that the government has, regardless of what they say, unlimited access to our personal information by claiming they are protecting us from the bad guys but chooses to prosecute anyone, like Bradley Manning, who dares release private information about crimes committed by our own government.

  5. All this recourse to the Constitution, as if the words on paper have some kind of magic to hold back the Darkness. “We have given you a republic, madam, if you can keep it.” Sayeth Yoo and Gonzales, the structure and strictures of the Constitution are in the present context “quaint” and “obsolete.” The collective we personify as “Obama” patently agrees, with extensions and expansions. That oath stuff about “supporting and defending the Constitution” was all recited with fingers and toes crossed…

    There have been other nominal and short-lived “republics” too, all getting sucked down into consumption and dissipation and empire and eventually collapse and the stuff of moral lessons preached by “conservatives” who applaud and abet and profit from the collapse.

    We’ve got no ideals, no functioning mythos, no common goals except MORE! for US! even while the folks that actually run the joint tighten the screws on the rest of us, squeezing out and stealing our labor, our homes, our actual security, by niggles and jiggles and tugs on the levers of power…

    What an honest Troop realizes about what has long gone way beyond the Citizen Soldier myth:

    But then I finally admitted the truth to myself. I was fighting so that the United States could ensure its interests in the region whether it was oil, strategic troop placement or finding an additional ally in the Middle East — or a combination of them all. And you might think I became disillusioned. While it is true that I am no longer religious, I did not allow my time overseas to have a negative impact on my life. I have come to terms with my service in Iraq and realized that fighting for economic interests, while not as ennobling as fighting for freedom, actually protects the American way of life in its own fashion. In retrospect, we shouldn’t have gone to Iraq, but once we were there, we had little choice but to complete the mission.

    Regardless of how the American public feels about the war in Iraq, maintaining our standard of living sometimes comes at a high cost. War, and other subtler military moves, must be made in order for our nation to remain in contention as a world superpower and maintain the prosperity we have enjoyed for the last century.

    link to tampabay.com

    See how many errors you can find in that soldier’s mental picture…

  6. And, of course, all this just (further) points out the absurdity of the popular argument for private arsenals, i.e. that it forestalls tyranny. It didn’t forestall the establishment of an unaccountable secret police or their intrusion into every aspect of our lives–and is hardly likely to forestall further abuses given that government has much, much more powerful weapons.

    A democracy doesn’t forestall tyranny with rifles, it forestalls tyranny by active political opposition to things like this, and to those who would permit it. You can’t claim that you’re safeguarding your country against the possibility of tyranny and yet nod mutely as the USA PATRIOT Act is added to the books.

  7. Sometimes I wonder if it is because weapons are so tangible, while the important constitutional rights, such as those set out in the Fourth Amendment, are abstract. A gun won’t actually protect you from government overreaching or corporate overreaching (a problem not well-addressed in our Constitution), and it’s not even very useful in most self defense situations, but holding one makes you feel powerful, at least for a few minutes.

    It’s also probable that all the focus on the Second Amendment has kept us from paying attention to the parts of the Bill of Rights that actually protect our civil and human rights.

    • I think besides your excellent observations, many ordinary people are fooled because guns have not changed their physical form very much over the last 200 years (despite massive leaps in lethality) and thus seem to be connected to the sacred weapons of our supposedly free ancestors and their sanctified expansion of their private property by violence. Whereas the forms of privacy under assault now have no real history; they are not just improved technology, they are new technologies. You still can’t wiretap a phone because we still call it a phone, but now computers store data about all phone calls made, and that’s new and not part of any tradition of liberty.

      It is a problem that the wealthy have generally seized the initiative to lobby for new laws to convert new technology into new “property” for them, just as the first industrial barons of England exploited the new economy to privatize the common lands that had fed the peasants of the past, converting it into private property. Or the rail barons of the 1800s were rewarded with long strips of public land to subsidize their breakneck expansion. Ordinary people get left in the dust in these legislative bonanzas. The internet already belongs to the corporations in practice, and when they share your info with the Feds they also lay the groundwork to access that info to more skillfully exploit your appetites.

  8. Unfettered capitalism leads inevitably to a fascist, police state.

    A boot stamping a human face forever keeps going through my mind.

  9. Edward Snowden illustrates another duh fact of the growth of secret surveillence agencies. More people working in secrecy means more people having access to that information. Some, perhaps most, of the most severe historical impacts on US “security” were due not to nasty outsiders, but to intelligent, classified, greedy insiders selling not merely politically embarrassing information, but defense engineering. Snowden is the moral opposite, acting to uphold the Constitution and allow Americans to know what their government is doing in their name, knowing his actions place him in permanent danger. The government is therefore targeting Snowden because secrecy is more important than truth. Obama obfuscates in saying that you can’t have 100% security and privacy. No living thing has 100% security no matter how powerful the state. But ever increasing, permanent secrecy dooms a nation, America being no exception.

  10. Time to start a serious movement to repeal the second amendment. Lots of polls suggest it should be possible. Of course, you need hundreds of thousands to stand up and say it, otherwise the gun nuts will threaten (and perhaps even carry out their threats) against the first to stand up for this.
    So, how about a pledge.org pledge that if, say, 199,999 other US voters also pledge that they will publicly come out in support of repealing the second amendment, you will also put your name to it. A small donation of $5 also pledged would kick-start the fund-raising, too.

    • I don’t think a repeal of the second amendment is possible, even if a supermajority of US citizens taken as a whole favored it. That’s because it requires 3/4 of the STATES (not the citizens of the states as a whole) to ratify constitutional amendments, and I think it would be trivially easy to prevent ratification in twelve states: just look at the conservative center of the USA and you could pick out twelve states whose legislators would never vote for ratification.

      • Yes, the best bet would be amending the damn thing to define what a “well-regulated” militia has to do with a citizenry engaged in an arms race against itself. Then we would have the ultimate challenge to the gun nuts: How would you rednecks feel about a black, well-regulated, non-rightwing militia in every inner city?

        I’m thinking Yugoslavia in 3…2…1…

  11. I think that there was a Supreme Court case that found the normal information contained on a phone bill is not protected under the 4th Amendment. Date, time, place, etc. The phone conversation still is and a Warrant would have to be obtained to listen to a phone call.

    I’ve truly had it with guns period. The slaughter every year is appalling.

  12. i understand juan doesn’t have a security clearance or anything, but maybe another of you fine folks would know:

    link to guardian.co.uk

    what does the ‘SI’ in the headers stand for? i’m thinking the defense contractor of the same name, maybe?

    • I Believe that the “SI” in the header stands for “Special Intelligence” Other initials are SBI, SCI, SIOP, ESI, which stand for “Special Background Investigation, Sensitive Compartmented Information, Single Integrated Operational Plan, Extremely Sensitive Information

      All of which are used in the “Top Secret” World, and as such are preceded by TS or TOP SECRET… as in TS/SBI TS/SCI, etc.

  13. I too find it baffling – it’s the drug war that started this. The Supreme Court let us all down when it ruled in the National Treasury Union v Von Raab that warrantless searches are permissible if it’s in the wider interest of the government. This has opened the Pandora’s box of intrusion on our rights. The public seems to be fine with it – I have never heard of ballot proposals outlawing drug testing in the work place because of 4th amendment concerns. We just take it.

    However, Professor – I find your argument that the 2nd amendment has been interpreted in an absolute manner to be lacking. To review, the amendment reads:

    “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

    None of the rulings or any of the debate in this country is absolute about this amendment – we never talk about the militia. There is never any discussion about membership in a militia and what that entails. You can purchase and bear arms without being a member of a militia – and therein lies the lack of an absolute interpretation of this amendment. A well regulated militia would know where its members are and what arms they have and are proficient on. It would drill regularly and train on safety regularly. It would insist that its members lock their guns away until they are called upon to fight. It would screen its members for mental health and other suitability issues.

    One final word about internet privacy – the minute I type this and hit send, I know it is going to bounce off several servers before it reaches you – those servers are maintained by people I do not know and there is nothing to keep them from reading my post….that’s the way the internet works. So, I have a hard time with people who expect privacy on the internet – they obviously do not know how the internet works.

    • Mr. Gaj, what Americans are concerned about is the spying of their government, not the spying of “servers” that “serve” consumer groups and corporations. The search engines and e-mail providers I have mentioned above will bypass the U.S.Federal Government. Many of us do not want the U.S. Federal Government becoming aware of our resistance to so many of its policies.

    • If our nation had Universal Service requiring Every 18yr old to serve either in the Military or some type of Public Service, We as a Nation would be more invested in what is happening to our Nation.

      • Sure, but this creates a new set of problems:

        1. The rightwingers hate all national service that falls outside their supernarrow interpretation of the role of government, which seems to consist only of violently punishing anyone at home or abroad who interferes with the needs of “real” Americans

        2. How can anyone say that a country with a draft is “free”? In 1945 freedom was understood to be relative, because between the Depression and fascism we had too clear a memory of the alternatives. Now people think their own demands are the only definition of freedom, and any other demands are immoral. To admit the fundamental compromise of freedom that is the draft is to open debate about other compromises.

        3. National military service means, “not just for white conservatives”. The gun nuts think they can emasculate the federal government and rule the rest of us as their ancestors did under Jim Crow, because no other faction is as well-armed and organized (see: KKK). Probably not a coincidence that a great leap in American equality and civil rights happened right after many millions of blacks, Latinos, Jews, and radicals temporarily were forced to bear arms alongside the socioeconomic tribe that normally inhabited the peacetime Army. The goal of the “patriots” is to undo everything that was accomplished in that era.

  14. The federal courts allowed the Justice Department and the U.S. Congress in the 1980s to twist the U.S. Constitution language to death to allow “administrative drug forfeiture” proceedings in which the DEA or other federal authority could seize property and hold it and the owner or possessor would have to sue the government to get their property back. States passed the same forfitre laws modeled after federal legislation.

    This was part of the War on Drugs initiated by the Reagan administration.

    Many citizens could not post a bond required by law in order to commence court proceedings. Some courts held these forfeiture statutes as unconstitutional. I persuaded a state court judge in Michigan in 1992 to declare the statute unconstitutional as the law prevented indigents from initiating court action to recover their property.

    Instead of the War on Drugs, we have the War on Terrorism and in lieu of the forfeiture statute, we have the Patriot Act that is constitutionally questionable. Over the last almost dozen years, the federal judiciary has analyzed this Act of Congress and held, at various times, certain aspects to be violative of the U.S. Constitution.

    GOP Congressman James Sensenbrenner of Wisconsin introduced the Patriot Act bill shortly after 9/11 and got it hastliy passed during the public panic after the World Trade Center attacks. He has recently commented on the recent NSA scandal and commented that he did not believe the conduct of the NSA was the type contemplated by the framers of the Patriot Act. Sensenbrenner has sat for decades in Congress and has been one of the strongest advocates of law enforcement interests.

    We must remember that the NSA does not derive its authority form either the U.S. Constitution or any Act of Congress – but rather an obscure executive order of the President that could be rescinded at any time. This particular point was mentioned on the record of the Church Committee proceedings in the 1970s. The Central Intelligence Agency and Department of Defense, on the other hand, have their respective origins in the National Security Act of 1947.

  15. I agree with how you interpret the fundamental differences between the 2nd and 4th amendments. But there are just too many fellow citizens who have this obsessive and mad love affair with weapons in this country.
    I served as a medical corpsman in Vietnam. And I still after four decades remember how shocked and dismayed I was when I saw a wounded grunt with a thur-and-thru gunshot wound from an AK-47 assault rifle. That was the weapon used by VC guerrillas and NVA soldiers.
    And even though I had to qualify on an M-16 rifle in order to get through basic training, No hospital were allowed to carry a weapon in Vietnam. And I have never fired a weapon since basic training nor want to own one. It just brings back too many bad memories for me of my tour of duty,
    There’s something terribly wrong with this country. War after war oversea: massacre after massacre back home.
    Sorry I’m so discouraged when it a comes to gun control. Just wanted to share my experiences as a young man confronting what a violent society we all live in.

  16. Far as I know, people in the US are not arrested for Tweeting. They are now in Turkey. Now this from Hurriyet Daily News

    Social media, the supreme arsenal of the demonstrators at the Gezi Park protests, is now being targeted by the ruling Justice and Development Party (AKP) for working against society’s “serenity and peace,” and the government is now seeking ways to restrict it.

    After Prime Minister Recep Tayyip Erdoğan called Twitter a “plague,” the government has moved to bring certain legal regulations to the use of social media. Following the snowballing impact it engendered in organizing the Gezi Park protests, Erdoğan is reportedly considering precautions to take, as discussed during an emergency meeting of the Central Decision and Executive Council (MKYK) of the AKP on June 8.

    The AKP’s vice chairman of media and public relations responsible for social media, Ali Şahin, hinted at a “legal regulation” to “set social media in order.” “Social media must be brought under order and regularity … A legal regulation could be made. People must be held responsible for the content they write. If as a result of a tweet they write, people loot shops and burn vehicles, the one who wrote it must bear its costs,” Şahin told the Hürriyet Daily News yesterday.

  17. The Greenwald/Snowden disclosures have been debunked? Maybe a link to what you were referring to would be appropriate.

    • Thanks for refuting this, Travis. The Washington Post and Guardian stories were not debunked. Some planted trolls did their spin, but the reputable news sources all confirmed they were fact-checked and sound. Even Clapper’s comments confirmed the existence and use of PRISM. I saw people circulating ZDnet as a debunking source. FYI, a quick check on the author (and editor of ZDnet): he was indicted for securities fraud, barred by the SEC, and fined a few million dollars. A little dodgy, I would say, plus his ‘debunking’ didn’t carry water.

  18. You are misinformed on the gun lobby. National Association for Gun Rights (NAGR) spent more money than the NRA this last 2nd Amendment fight in the US Senate. The NRA, which gives money to Harry Reid, had their Senate bill voted down as well.

    I mention this because NAGR also takes a literal view of the 4th Amendment and lobbied against the Patriot Act renewals. So they are consistent, and thus deserving of respect.

  19. A question – is it at all insignificant that this data is clearly in the hands of another corporation now as well? Snowden was not a government employee, but a private contractor. Booz Allen Hamilton is a private, for-profit firm. What can they do with this information?

  20. You’ve forgotten that GW snuck in a “signing statement” to a bill that outlined the new retirement plans for US postal workers. He authorized the snooping of our snail-mail with the stoke of a pen buy attaching his statement to a bill having nothing to do with national security.

  21. An excellent commentary. Thank you Juan Cole for adding the truth of the underbelly of this issue on our corporate-owned government (both parties) decades-old trashing of the 4th Amendment of the Bill of Rights yet treating the 2nd Amendment as an absolute fundamental right–hands off. Totally hypocritical, and totally in service of corporate interests.

    I’ve posted it on my ZeitgeistChange.com blog.

  22. I think there may be some logic to the reasonableness argument trac above-mentioned. Like cell phone conversations, your email accounts and computer may easily be hacked into and viewed or listened to by others. So, even though we may WANT our conversations and emails to be private, the reality is they can be intercepted easily, and listened in on. If you think your conversation in the middle of a bus station is private, fact of the matter is only a fool would consider it so, and offer confidential information there as others may hear it too. Any thought that conversation is private would be mistaken at best. It becomes more problematic when the government gets involved due to the 4th amendment. It still applies. If the government wants to open your letters, or listen to your wire phone conversations, as I understand it, they still need to get a warrant. Assuming the governments claims they are not actually listening in are accurate, (which I believe are likely bullshit), they are trying to fit into a narrow exception similar to the courts prior comments regarding wireless phone interceptions.

  23. Good account of the corporatist influence. A few “libertarians” oppose surveillance, or claim to – when it is a Democratic administration doing it – but most seem to be OK with it.

    Why didn’t the surveillance catch the Boston Marathon bombers? Were they not talking to each other on their phones? Apparently they learned how to make bombs from internet information – why didn’t Google inform the authorities about this? Were they aware that their communications would be spied on? Will Tsarnaev be asked about this? If all or most serious terrorists actually knew already about the surveillance, how would NSA know that they did?

    Anyway, if terrorists didn’t know about the extent of surveillance before this they do now, and probably only the really dumb ones will be caught, and only if they are gregarious.

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