Tag Archives: Scalia

Standards and Fundamental Freedoms

On February 12, 2013 Lyle Denniston wrote for the Constitution Center about the constitutional standard that the Court would apply to challenges to gun control laws in the wake of Heller (2009) and MacDonald (2010).[1]  Given the Court’s reluctance to take any more 2nd Amendment cases, Lyle is most likely right—we do not yet know what constitutional standard the Court will apply.  Thus far, the Court has dealt with two of the most restrictive gun control laws in the country, so the standard for deciding less clear-cut has yet to be enunciated clearly.  However, as those of us who teach constitutional law we know what standard MacDonald implies is appropriate.  It is the lesson of Palko v. Connecticut (1937) and Duncan v. Louisiana (1968), and this lesson comes very early in any course focusing on civil rights or civil liberties.  By incorporating the 2nd Amendment, the Court has already made a determination.


In Heller, the Court determined that the 2nd Amendment right to bear arms is an individual right, and Scalia’s opinion suggests that this right is a limited one—the right to self-defense in the home.  In MacDonald, the Court incorporated this right to the states via the due process clause of the 14th Amendment.  In doing so, the Court added this individual right to the ‘honor roll of rights’ that are “fundamental principles of liberty and justice which lie at the base of al our civil and political institutions[.]”[2]  In essence, the act of incorporation demands that the highest constitutional standard be applied to government attempts to constrain that right.  This is the lesson of Palko and why some parts of the Bill of Rights have yet to be incorporated.


Certainly, the Court can then make distinctions within the case law that provides more discretion for governmental action (valid time, place, or manner restrictions or the O’brien test come to mind), but these are deviations from the standard demanded by incorporation—strict scrutiny.  If a law is content based, if a law is directed toward the suppression of expression, free exercise of religion, or association, as an incorporated honor roll right, the 1st Amendment gets strict scrutiny.  In US v. Jones (2012), the Court reminded us that, “the physical penetration standard and the reasonable expectation of privacy approach exist together,”[3] combining to provide a strong protection against intrusion of the incorporated 4th Amendment.  It does not matter that the Court has also created exceptions to this standard (plain view, incident to arrest, hot pursuit); the standard for an incorporated right rests strongly on the side of the individual.


I expect, as Denniston notes, that the Court will provide some, if not a great deal of, wiggle room for the federal and state governments when dealing with the newly incorporated 2nd Amendment.  However, the initial standard is already understood.




[2] Palko v. Connecticut, page 77, second column CLCA: Rights, Liberties and Justice, 8th edition.

[3] US v. Jones, page 475, second column CLCA: Rights, Liberties and Justice, 8th edition.


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Filed under Incorporation of the Bill of Rights, The Right to Keep and Bear Arms

Tracking or Tracing?

On March 31, the New York Times reported that some police departments are routinely using ‘cell phone tracing’ in their investigations, and many are doing so without obtaining a warrant beforehand.[1]  The Time then states that:

The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches.

Is this supposition accurate?  Given the narrow reasoning that held in the Jones[2] case, there is clearly room for distinguishing between ‘cell phone tracing’ and ‘GPS tracking.’  Justice Scalia, writing for the Court, sticks close to his beloved originialism  in his opinion:

“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted…”

The crux of the case, then, for Scalia was the physical trespass alluding to early Fourth Amendment doctrine prior to the Warren Court’s broadening to reasonable expectations of privacy in Katz v. US,[3] “… Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

For Alito, the issue was different.  The trespass in this case was inconsequential.  His main concern, or so it seems from his opinion, is the prolonged use of the device.  He writes:

“First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation)…By contrast, if long-term monitoring can be accomplished without committing a technical trespass — suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car — the Court’s theory would provide no protection.”

Under either of these theories, the widespread use of cell phone tracing reported by the Times does not seem constitutionally problematic.  Police departments may be using the devices? freely, but if they are not attaching them nor following someone’s phone from tower to tower for an extended period of time, neither Scalia nor Alito should be against the procedure.

It is questionable whether even the broader ‘reasonable expectation of privacy’ argument would be relevant? here either.  Any cell phone user is aware that the phone knows your location; the phone lets you know when you are out of your network’s range or resets automatically when you change time zones whether you are making calls or not.  The point of a cell phone is that you can call from anywhere and do not have to enter a building or booth to do so.  In Katz, it was the act of closing off the booth as well as paying for a direct connection that led to his reasonable expectation of privacy.  A cell phone signal that bounces tower to tower wirelessly, that seems easy to intercept even innocently, seems to be the antithesis to the phone booth in Katz.  If this argument is sound, then there seems to be no safe harbor left under the Fourth Amendment for cell phone users wishing to keep their locations private.  Perhaps it is a good thing that the Times reports that several state legislatures as well as Congress are considering legislation limiting this procedure.

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Filed under Investigations and Evidence