The Second Amendment Is Meaningless If the Government Can Kill You for Exercising It
DOJ officials contradict themselves by challenging laws limiting carry while also treating the decision to do so as a reason to open fire. Tragically, though, such cases are commonplace. Ten years ago, local police stopped another Minneapolis-area man, Philando Castile, for a broken brake light. The officer told him to get his driver’s license without reaching for his legally permitted gun, but as Mr. Castile complied, the officer shot him.
Officers treat the presence of a constitutionally protected firearm as a justification for shooting civilians—and Mr. Essayli, Mr. Patel, and Border Patrol Chief Gregory Bovino are all too eager to excuse this.
What’s the solution? Part of it lies in the Fourth Amendment’s protection against excessive force. In the landmark case Tennessee v. Garner, the Supreme Court held that officers can use deadly force only when a suspect is a threat to others. Earlier decisions from other courts forbade the use of “any greater force than [was] reasonably and apparently necessary” for an officer’s protection, even if the suspect was resisting arrest. “Human life is too sacred,” read one decision, to approve of the needless use of deadly force.
Far from excusing such shootings, the common law required officers to try to prevent confrontations. In 1948, Justice Robert Jackson wrote that when officers illegally enter homes, people could mistake police for burglars, and their “natural impulse would be to shoot.” Should an officer, “seeing a gun being drawn… shoot first,” Justice Jackson thought the officer could be guilty of murder. As recently as 2006, in an opinion by Justice Antonin Scalia, the Court warned that “an unannounced entry may provoke violence in supposed self-defense by the surprised resident.”
There does have to be accountability for rights violations, such as excessive force. The Constitution invites juries to check government power and examine the reasonableness of uses of force. But court-made doctrines have severely curtailed the ability to sue officers—especially ICE agents like those who killed Mr. Pretti. Judges also often play “junior-varsity jury” and decide reasonableness on their own. Without reviving the remedies promised by the Constitution, rights can become just empty words, unable to protect real people.
Yet the law is not supposed to make Americans choose between their lives and their constitutional liberty. The Second Amendment gives people the right to bear arms, and the Fourth Amendment promises to stop the government from killing them for doing so.
Mr. Pretti’s death should be independently investigated. Courts should uphold strong limits on deadly force. And people should demand better of a government that voices their rights on Tuesday before insisting come Saturday that civilians can be killed for exercising them.
Matthew Cavedon is the Director of the Cato Institute’s Project on Criminal Justice. This article, originally posted to the CATO Institute website, is published courtesy of the Cato Institute.
