How to Read the Constitution—and Why (Legal Expert Series)

by Kimberly Wehle

Given what we know about constitutional interpretation by this point in the book, it’s hard to discern the line at which historical practice should dictate modern thinking around the Constitution and when it should not.Somewhat conveniently, the court picks and chooses when history binds it and when it does not.

At a bare minimum, this issue makes clear that there is no single, abiding, unambiguous reading of the plain language of the Second Amendment. Other factors must—and do—come into play, and they are not clear from the text itself.

establishment in a crisis (or fight against it).5 In 1939, the Supreme Court held that the Second Amendment clearly safeguards the possession of firearms for purposes of serving in a militia, and “must be interpreted and applied with that end in view.” That was the law for decades.

The court explained: “The signification attributed to the term Militia appears from debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.”

Given that few, if any, cases coming before the court in the late twentieth to early twenty-first century are cut-and-dried under the language of the Constitution, there is an argument to be made against this kind of second-guessing, period. One problem with it is that it makes the court appear political and not neutrally tethered to the law and the facts.

But in my humble opinion, if the court is to turn precedent on its head, it should probably do so unanimously—or not at all.

The question for us all is not whether to draw the line—the Supreme Court has already answered that as a “yes” many times over—but where. The government cannot take away all guns. That is clear and undisputed. But the government is not constitutionally forbidden from restricting guns either. That is clear and—at the Supreme Court—also undisputed.

core sphere of privacy that is your home.) In short, if you make something public, you walk away from any Fourth Amendment protections.

Providing tax documents to an accountant or records to a bank also relinquishes Fourth Amendment protections.

One court has decided that there is a reasonable expectation of privacy in emails (but to date no other court has agreed).12

Under the reasonable expectation of privacy test, the Fourth Amendment protects none of this stuff because we give it away voluntarily. Of course, we really have no choice—unless we go off the grid and live in a cave somewhere. The Supreme Court knows it needs to figure out what to do about this loophole in the law because Congress isn’t regulating how our data trail can be used by the government or by the private sector. Technology is moving so fast, and the Constitution just isn’t keeping up. The court recently pulled back on the rule that if you tell a “third party,” you waive your Fourth Amendment rights.

Privacy is one of the “soft” norms that we’ve talked about before—values that are intrinsic in a good life and a society marked by individual freedom and liberty but are not spelled out as a constitutional rule that can be enforced through clear terms.

States, created the vehicle exception, which permits police to search a car without a warrant as long as there is probable cause.

We won’t go into details here, but know that you do have rights if you are pulled over; cops cannot search your car for zero reason. (And if you are arrested, you get Miranda warnings—telling you your rights—which the Supreme Court mandated in a case applying the Fifth and Sixth Amendments. If the cops don’t do that, prosecutors can’t use your statements against you at trial.)17 But the bar to searching your car is not as high as the Fourth Amendment’s plain language might otherwise suggest.