Date Posted: June 2009
Two important opinions in the past decade, both written by Justice Antonin Scalia, have sought to apply originalist jurisprudence to constitutional issues raised by technologies that were unknown at the time of the founding. In Kyllo v. United States, the Court held that using sense-enhancing technology to obtain information about the interior of a home, even without a physical intrusion, constitutes a Fourth Amendment search, at least if the technology is not "in general public use." This rule appropriately preserves the privacy that could only have been violated by a trespass in 1791. In District of Columbia v. Heller, the Court endorsed a superficially similar rule under which weapons are protected by the Second Amendment only if they are "in common use" today. This dictum disserves the purpose of the constitutional right to arms, for it allows the government to create Second Amendment exceptions almost at will, by preventing disfavored types of weaponry from remaining or coming into "common use."
Heller's dictum threatens to frustrate the right of civilians to possess new types of nonlethal weapons that may be superior to firearms for the constitutionally protected purpose of self defense. We propose that the Court repudiate this dictum, and adopt a different rule that is consistent with Kyllo's sound approach to emerging technologies: Just as Kyllo adopted a presumption that the police may employ surveillance technologies that are in widespread use by civilians, so the courts should adopt a presumption that civilians may employ self-defense technologies that are in widespread use by the police.