Some Constitutional Amendments Are More Equal Than Others

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And, since 9/11, no amendment has been more equal than the Second Amendment.

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As the political debate about gun violence finally sounds out across the country in the wake of last week's Colorado theater massacre, as President Barack Obama and presumptive Republican nominee Mitt Romney begin to stake out their positions, I keep coming back in my mind to the ways in which America has treated gun rights differently from other rights since September 11, 2001. On paper, all constitutional amendments may be equal. But in practice, some amendments are more equal than others. And no amendment has been more equal in the past 11 years than the Second Amendment.

There is a financial component to this, expressed in the vast difference we spend to counter the threat of terrorism as opposed to the threat of gun violence. There is a practical component to it: in the wake of last week's shooting, the Denver Post reported that local gun sales were up 41 percent and that firearms instructors were seeing more requests for training for concealed-carry permits. And then there is the legal component -- the constitutional contrast, you could say -- expressed in how our Bill of Rights has been molded since the terror attacks of September 11, 2001.

Since the terror attacks nearly 11 years ago -- a period in which 14 Americans were killed domestically by Islamic extremists and approximately 334,000 Americans were killed domestically by gun violence -- there have been significant changes in the way the Bill of Rights has been interpreted by government. In virtually every one of those instances -- I can't name an exception, can you? -- the guarantees of individual liberty and freedom contained in the first ten amendments to the Constitution have been narrowed or undermined in the name of safety and national security.

From the TSA to drones to warrantless domestic surveillance, from water-boarding to secret prisons to law enforcement officials having access to your online accounts, the Bill of Rights has been winnowed since September 2001 as Americans have consented to re-shift the balance between security and liberty, between safety and privacy. Name a relevant amendment and some expert somewhere will tell you how all three branches of government have sought to expand State power over individual conduct (or even, as we saw in some of the hokier terror conspiracy cases, over individual thought).

Except for the Second Amendment. Bucking the trend, it has been a fabulous decade for the Second Amendment and those who cherish it. Since September 2001, the United States Supreme Court has twice (in Heller in 2008 and in McDonald in 2009) endorsed the concept that the Second Amendment contains an individual right to bear arms. In 2003, Congress attached to funding legislation the Tiahrt Amendment, a rider designed to restrict the use of federal gun-trace information. And  in 2004, the federal ban on assault weapons was allowed to expired.

Today, despite statistics that tell us that approximately 33,000 Americans are killed each year by gun violence, and despite statistics that reveal that states with tougher gun restrictions have lower body counts from such violence, the Second Amendment is more broadly interpreted than it has ever before been. By contrast, in the name of fighting the war on terror, here is how the past 11 years have treated the other nine amendments that comprise the original Bill of Rights:

The First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As First Amendment Center scholar David Hudson, Jr. has pointed out, the weighty USA Patriot Act "directly implicated First Amendment freedoms." Hudson offered this analysis last year on Patriot Act provisions which enable government officials to obtain library records, health-care records, and business records. Meanwhile, in 2010 the Supreme Court, in Holder v. Humanitarian Law Project, endorsed the constitutionality of the Patriot Act's "material support" provision, which criminalizes a broad range of associative conduct. More recently, President Obama's National Defense Authorization Act has implicated the first amendment rights of journalists.

The Second Amendment. 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.

See above.

The Third Amendment. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

I could not find any links between America's prosecution of the war on terror and the Third Amendment, but I did find an excellent law review article suggesting that the individual rights contained in the Third Amendment may have been violated by National Guard troops sent to Louisiana and neighboring states in the immediate aftermath of Hurricane Katrina.

The Fourth Amendment.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.

The war on terror has had the most effect of all upon Fourth Amendment rights. Bush Administration officials concluded early on in the process that the Fourth Amendment should be applied differently during a time of war. This is why you may be searched without probable cause at airports and why government agents may be listening in to your telephone conversations even if they have no judge's warrant to do so. It is why so many men after 9/11 were picked up on "material witness" warrants and held for months without trial. Read this for a sense of the debate on Capitol Hill on this in 2003.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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