Due to the recent mass shootings, especially those of shoppers at a Buffalo supermarket and of school children in Uvalde, there is much attention on the Second Amendment’s “right” to use guns in self-defense. This renewed focus has caused me to wonder why so much energy is expended in protecting this Second Amendment “right” when, if the Justice Alito leaked draft opinion is the view of the majority of the U.S. Supreme Court, so little effort will be exerted in protecting the right to privacy.
I suspect Justice Alito would say the difference is because the “right” to use guns in self-defense is an enumerated right and the right to privacy is not mentioned in the U.S. Constitution. The “right” to use guns in self-defense is put in quotes because until the U.S. Supreme Court’s decision in the District of Columbia v. Heller in 2008, the Second Amendment was understood to concern the use of guns in connection with militia service. In Heller, the U.S. Supreme Court held there was a limited individual right to keep and bear arms for defensive purposes.
Justice Alito says in the draft leaked opinion that rights not mentioned in the U.S. Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Although the words “right to privacy” are not expressly mentioned in the Constitution, the values encompassed by the right to privacy are entrenched in the Constitution, and they are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Frederick S. Lane in his book American Privacy makes the case that the Bill of Rights’ concern with preserving autonomy and freedom is the functional equivalent of personal privacy. He argues that concern over the privacy of personal communication was one of the major issues that drove American colonists to rebel against England and points out that postal privacy was recognized in the Post Office Act of 1710 (it was a crime to open, detain or delay any letters or packets). But, according to Lane, it was the Writs of Assistance and the Quartering Acts that gave rise to the First, Third and Fourth Amendments. Lane describes these causes and effects as follows:
- The Writs of Assistance were general, open ended search warrants that authorized revenue officers to collect taxes. In particular, the Writs gave custom house officers essentially unlimited authority to randomly search sailing ships, dockside warehouses and even private homes for untaxed property. These actions lead to the First Amendment’s protection of the autonomy of American citizens in making some of their most private decisions about their beliefs, thoughts, and associations and to the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers and effects” and prohibition against unreasonable searches and seizures and against open ended search warrants.
- Under the Quartering Acts, the British troops were able to quarter in whatever nonprivate buildings were available, including stables, abandoned homes, and outhouses, and colonists could be compelled to provide, without compensation, British troops with necessities such as food, alcohol, candles, and bedding. These Acts lead to the Third Amendment’s prohibition on the quartering of soldiers in houses in times of peace without consent and in times of war except in accordance with law.
The Writs of Assistance and the Quartering Acts enabled invasions of the colonists’ most secluded space – their homes. Their homes were where they had the autonomy to make their own decisions and where their most private decisions were made. The protection of these values, which are fundamental to the right to privacy, are encompassed in the First, Third and Fourth Amendments, and the expression of these values in those Amendments means that the concept of the right to privacy is set forth in the U.S. Constitution.
So, under any standard of scrutiny, whether the ones applied to enumerated or unenumerated rights, the right to privacy deserves protection with the same intensity as the right to use guns in self-defense. Although the actual words “right to privacy” are not used in the Constitution, the values encompassed by the right to privacy are articulated in the Constitution, and they must not be given short shrift.