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Enforcing Gun Bans

Apart from the intrinsic merit (or demerit) of banning or restricting gun possession, the mechanics of enforcement must also be considered. Illegal gun ownership is by definition a possessory offense, like possession of marijuana or bootleg alcohol. The impossibility of effective enforcement, plus the civil liberties invasions that necessarily result, are powerful arguments against gun control.


Search and Seizure

No civil libertarian needs to be told how the criminalization of liquor and drugs has led the police into search-and-seizure violations. Consensual possessory offenses cannot be contained any other way. Search-and-seizure violations are the inevitable result of the criminalization of gun possession. As Judge David Shields of Chicago's special firearms court observed: "Constitutional search and seizure issues are probably more regularly argued in this court than anywhere in America."[47]


The problem has existed for a long time. In 1933, for example, long before the Warren Court expanded the rights of suspects, one quarter of all weapons arrests in Detroit were dismissed because of illegal searches.[48] According to the American Civil Liberties Union, the St. Louis police have conducted over 25,000 illegal searches under the theory that any black driving a late-model car must have a handgun.[49]
The frequency of illegal searches should not be surprising. The police are ordered to get handguns off the streets, and they attempt to do their job. It is not their fault that they are told to enforce a law whose enforcement is impossible within constitutional limits. Small wonder that the Chicago Police Department gives an officer a favorable notation in his record for confiscating a gun, even as the result of an illegal search.[50] One cannot comply with the Fourth Amendment--which requires that searches be based upon probable cause--and also effectively enforce a gun prohibition. Former D.C. Court of Appeals judge Malcolm Wilkey thus bemoaned the fact that the exclusionary rule, which bars courtroom use of illegally seized evidence, "has made unenforceable the gun control laws we now have and will make ineffective any stricter controls which may be devised."[51] Judge Abner Mikva, usually on the opposite side of the conservative Wilkey, joined him in identifying the abolition of the exclusionary rule as the only way to enforce gun control.[52]
Abolishing the exclusionary rule is not the only proposal designed to facilitate searches for illegal guns. Harvard professor James Q. Wilson, the Police Foundation, and other commentators propose widespread street use of hand-held magnetometers and walk-through metal detectors to find illegal guns.[53] The city attorney of Berkeley, California, has advocated setting up "weapons checkpoints" (similar to sobriety checkpoints), where the police would search for weapons all cars passing through dangerous neighborhoods.[54]School administrators in New Jersey have begun searching student lockers and purses for guns and drugs; Bridgeport, Connecticut, is considering a similar strategy. Detroit temporarily abandoned school searches after a female student who had passed through a metal detector was given a manual pat-down by a male security officer, but the city has resumed the program.[55] New York City is also implementing metal detectors.[56]
Searching a teenager's purse, or making her walk through a metal detector several times a day, is hardly likely to instill much faith in the importance of civil liberties. Indeed, students conditioned to searches without probable cause in high school are unlikely to resist such searches when they become adults. Additionally, it is unjust for the state to compel a student to attend school, fail to provide a safe environment at school or on the way to school, and then prohibit the student from protecting himself or herself.[57]
Perhaps the most harmful effect of the metal detectors is their debilitating message that a community must rely on paid security guards and their hardware in order to be secure. It does not take much imagination to figure out how to pass a weapon past a security guard, with trickery or bribery. Once past the guard, weapons could simply be stored at school. Instead of relying on technology at the door, the better solution would be to mobilize students inside the school. Volunteer student patrols would change the balance of power in the schoolyard, ending the reign of terror of outside intruders and gangs. Further, concerted student action teaches the best lessons of democracy and community action. The majority of people possessing illegal weapons during a gun prohibition would never carry them on the streets and would never be caught even by omnipresent metal detectors. Accordingly, a third of the people who favor a ban on private handguns want the ban enforced with house-to-house searches.[58] Eroding the Second Amendment guarantees erosion of the Fourth Amendment.
Those who propose abolishing the exclusionary rule and narrowing the Fourth Amendment apparently trust the street intuition of the police to sort out the true criminals so that ordinary citizens would not be subject to unjustified intrusions. However, one-fourth of the guns seized by the police are not associated with any criminal activity.[59] Our constitutional scheme explicitly rejects the notion that the police may be allowed to search at will.



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