the Future of Change

The U.S. Constitution has a fickle relationship with innovation and technological change.  Do we freeze the constitution in 1787, and accept the understanding of key phrases like “cruel and unusual punishment” and “unreasonable searches and seizures” as they were interpreted by the Founders, or do we accept that technology and innovation can transform the very meaning of these terms?   Should the Second Amendment, which provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” adapt with the times or is it protected behind 200-year-old protective glass?

It seems that in every recent term, the Supreme Court has weighed the reach of 4^th Amendment privacy protections in the face of modern technology.  For example, the Court ruled recently on the constitutionality of the use of GPS technology to track a suspect, finding such efforts violated the Constitution.  Were the Founders’ contemplating the advent of such technology when they protected citizens’ personal effects and letters from unwarranted government intrusion?  In terms of cruel and unusual punishment, the Court is often asked to weigh tweaks to the means of carrying out the death penalty against this clause, and yet we are not stuck with colonial notions of the phrase.  Indeed, the Court found, over 100 years ago, that this clause is “progressive” in nature, “and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”  For this reason, the Justices are often asked to review the nature of different punishments and the technologies that carry them out.  When ruling on their constitutionality, the Court will often then assess whether a national consensus has evolved and coalesced around prohibiting those practices.

The relationship between the Constitution and technological innovation does not always take over 200 years to play out, however.  Forty years ago this January, the Supreme Court found a right to abortion within the right to privacy.  Will advances in neuroscience threaten the intellectual foundation of the opinion in Roe v. Wade that recognized that right?

Similarly, technology is also creeping up on the Second Amendment.  The Supreme Court has said that the right to bear “arms” goes well beyond the right as it might have been conceived in 1787: i.e., to maintain a muzzle-loaded musket to deploy in support of the local militia.  Indeed, the Court, as recently as 2008, found that the Second Amendment necessarily encompasses a broader right: the right to protect one’s home with a firearm.   The Court struck down certain restrictions that infringed upon that right: like a ban on handguns in the home, and a requirement that any weapons in possession have trigger locks or that they be maintained in the home disassembled.  Because these restrictions hampered the right found at the heart of the constitutional protection, the Court found them wanting.

At the same time, the Court found that sensible restrictions that do not impair the fundamental right to protect one’s home raise no constitutional concerns.  Governments can license firearms and prohibit those with psychiatric disabilities from possessing such weapons without running afoul of the Second Amendment.  The operative language from Justice Scalia’s majority opinion is as follows:

Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues…Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In other words, as long as the right to protect one’s home in a meaningful way is preserved, the right to bear arms is honored.

If this is the essence of the right, then technology that prevents the unauthorized use of a firearm, yet makes it readily available for the protection of the home, would raise no constitutional concerns.  What is needed, then, is research that can adapt smart technology—like fingerprint scanners—to use in firearms.  In a recent piece on the Huffington Post, I explore this issue in greater detail.