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.

The Fifth AmendmentNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This is the Amendment that was neutered so broadly after 9/11 that federal lawyers and, initially, the courts, willingly detained U.S. citizens (like Jose Padilla and Yaser Esam Hamdi) without giving the men access to their lawyers. It is this amendment which mainly impacts the still-addled military tribunals at Guantanamo Bay, Cuba. Today, meanwhile, overseas drone strikes, which have targeted even U.S. citizens, represent the most invasive and permanent intrusions upon due process rights.

The Sixth Amendment. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

We saw the Sixth Amendment's implication in the war on terror during the Zacarias Moussaoui trial in federal court in Virginia. He sought to call as a witness fellow Al Qaeda member Ramzi Binalshibh. When the federal government refused to make Binalshibh available, the courts brokered a compromise in which "summaries" of Binalshibh's testimony were made available to the defense. The Sixth Amendment's guarantees, you now may say,  are some of the biggest reasons why the feds generally refuse these days to prosecute more terror suspects in federal court.

The Seventh Amendment. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment has taken a beating since 2001, in case you were wondering, but for reasons that have nothing to do with the nation's terrorism policies.

The Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The simulated-death practice of water-boarding of course implicated whatever Eighth Amendment rights are possessed by terror suspects. So did lesser forms of torture we now know was conducted by U.S. personnel against terror suspects (and others, like the prisoners at Abu Ghraib In Iraq). Many of the subsequent civil cases against government officials (like John Yoo) focused upon allegations that they authorized "gross physical and psychological abuse."

The Ninth Amendment. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I did not not find any instances where the Ninth Amendment has yet been directly affected (in terms of a court ruling, for example) by the war on terror.

The Tenth Amendment. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Tenth Amendment activists have claimed that the government's terror detention policies, contained in the National Defense Authorization Act, implicate state powers under the Tenth Amendment. But there has been little litigation on this topic.

The point of this litany? The threat of terrorism since 9/11 has prompted government to dramatically narrow the range of our individual freedoms under the Bill of Rights. But despite the shocking toll of gun violence over the past 11 years, the Second Amendment offers more protection today than it did in September 2001. Surely this contrast, this contradiction, is worthy of being part of the national conversation that is taking place in the wake of the latest mass shooting.

Are Second Amendment rights more precious than Fourth Amendment rights or Fifth Amendment rights? Are they more important than First Amendment rights or Eighth Amendment rights? I'd love the president and Mitt Romney to answer those questions and to explain why the War on Terror seems to have bypassed the Second Amendment even as it has redefined the ways that many other constitutional amendments apply to our lives.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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