Here’s an interesting comment by Justice Jackson, concurring in McDonald v. United States (1948). Jackson (who was also joined by Justice Frankfurter) argued that the police violated the Fourth Amendment by surreptitiously breaking into an apartment without a warrant, and without much of a showing of exigent circumstances; and he concluded this analysis thus (paragraph breaks added):
I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued. That it did not do so on this occasion was due to luck more than to foresight.
Many home-owners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers.
But an officer seeing a gun being drawn on him might shoot first. Under the circumstances of this case, I should not want the task of convincing a jury that it was not murder. I have no reluctance in condemning as unconstitutional a method of law enforcement so reckless and so fraught with danger and discredit to the law enforcement agencies themselves.
The title of this post is a bit facetious — this isn’t actually a case involving the Second Amendment as such, and I doubt that any advocates of gun control would be (or should be) much swayed simply by the possibility that widespread private gun ownership may deter unconstitutional searches, or may move the courts to condemn such searches. (After all, widespread private gun ownership may also encourage more intrusive searches by the police, and may move the courts to uphold such searches.) Still, it’s interesting that Justices Jackson and Frankfurter, no wild-eyed revolutionaries, made this point, and made it in a pretty detached way.
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