Frisking the Bill of Rights

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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The thing that gets us about the stop and frisk debate in New York is the selectivity in respect of the Bill of Rights. On the one hand, the New York Times calls for a strict construction of the Fourth Amendment, which protects Americans from searches and seizures that are unreasonable. On the other hand, the Times shrinks from any strict construction of the Second Amendment, which vouchsafes the right of the people not only to keep but also to bear arms. It doesn’t want New Yorkers to be permitted to bear arms but neither does it want to permit the police to frisk them for illegal guns.

Go figure. The Times outlines all this in an editorial issued Friday under the headline “The Mayor on Stop-and-Frisk.” It labels as “shopworn” and “discredited” arguments His Honor used, in a speech at Police Plaza, to defend the program known as “stop and frisk.” The Times has bought into the complaints against the city being levied in the lawsuit known as Floyd v. City of New York. The mayor, the Times notes, denies that the NYPD stops suspects based on race and adds that, as the Times put it, “members of minority groups were more likely to be stopped because minorities committed most of the crimes.”

The Times reckons that various court documents in the federal lawsuits tell “another story entirely,” though a more nuanced view of the evidence adduced in Floyd v. New York has been recounted by the Times’ own reporter on the case, Joseph Goldstein, who formerly covered the courts for the Sun and whom we know to be an almost obsessively fair and thoughtful reporter. He has reported that some of the testimony elicited from witnesses “seemed to veer away from the straightforward narrative of racial profiling.” There’ll be a lot of testimony for Judge Scheindlin to sort out, and we don’t seek to distill that here.

What we do seek is a consistency in respect of the Bill of Rights. Our instinct is for its aggressive enforcement of all its articles. Certainly this includes the Fourth Amendment, which vouchsafes the right of the people to be secure against unreasonable searches and seizures. It is huge. If the Bill of Rights were the Himalayas, the editor of the Sun has written elsewhere, the Fourth Amendment would be K2 or Annapurna; the freshets coming off its slopes have produced a vast cataract of liberty. Justices arguing for its strict enforcement have included some of the most conservative and liberal ever to be seated on the high bench.

The Fourth Amendment was enacted to ensure that America would not be plagued with the evil of what in Britain was known as a general warrant. Of this racial profiling can be seen as a variety — the danger of abuse arises from the generality. This is why the Fourth Amendment not only requires warrants but also commands that no warrants shall issue but on probable cause and supported by oath and describing the persons or things to be seized. The amendment does not ban all searches, only ones that are “unreasonable.” Commissioner Kelly is a lot of things, but unreasonable is not one of them.

So if one is going to enforce a strict reading of the Fourth Amendment, why not the Second? The Supreme Court has ruled that the palladium of our liberty, as the Second has been called, does not prohibit all regulation of guns. But in New York the right to keep and bear arms is governed by state law that effectively nullifies the Second Amendment. It is not an argument being made in Floyd v. New York. But it is the other real civil rights issue at the heart of the case. What good is the right to be protected against unreasonable searches and seizures if the government can turn around and, in violation of the plain language of the Bill of Rights, ban outright the handguns for which the government is ostensibly searching?


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