Dangerous Dicta

Abstract

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is also dangerous. That is because the security of the people guaranteed by the Fourth Amendment presently is imperiled by the rapidly expanding surveillance capacities of governments and their agents. Meeting challenges posed by these technologies will require a sustained investment in constitutional remedies capable of reclaiming and preserving that security. The Heller Court’s reading of the Fourth Amendment threatens the ability of courts to fashion and enforce those remedies, which leaves each of us and all of us more vulnerable to the kinds of broad and indiscriminate surveillance that are anathema to the Fourth Amendment.

This essay takes on the Court’s dangerous dicta in Heller. It does so on textualist grounds. By applying well-established canons of interpretation, and considering historical evidence, it argues that rights secured by the Fourth Amendment are fundamentally collective. This does not mean that individuals cannot seek Fourth Amendment protections or raise Fourth Amendment claims. Any right of the people must in some way devolve to protections for persons. Rather, the point is that the Fourth Amendment targets government practices, which, if left to the unfettered discretion of government agents, would leave all of us and each of us insecure in our persons, houses, papers, and effects. This is precisely what is at stake in governments’ use of modern surveillance technologies, which suggests a critical role for the Fourth Amendment in ongoing efforts to regulate the deployment and use of those technologies.

Keywords: Fourth Amendment, Constitutional Interpretation, United States v. Heller