The U.S. constitution includes privileges, rights, and rules that safeguard the citizens and their citizenship. However, the rights and privileges sometimes conflict due to changes in society and legal provisions. Franklin Roosevelt termed the constitution as a living document flexible to usage, changes in traditions, and customs (Holt, n.d.). The constitution is adaptable to situations and legislations that might not be articulated precisely in the written document. That is, the constitution can be interpreted to override some rights in favor of others in specific circumstances. The second and the fourth amendments are the two most conflicting constitutional provisions in the United States. The fourth amendment provides for Americans' right to security by limiting unreasonable searches and seizures in homes, persons, and papers (Kim, 2017). On the other hand, the second amendment protects individuals' rights to keep and bear arms provided they have permits from the Firearm Owners Identification (FOID) (Holt, n.d.). In that regard, there has been the question of the legality and reasonability of violating the fourth amendment and the second amendment when law enforcers search or seize a person for carrying a firearm.
The fourth amendment protects individuals against seizure or search unless law enforcers have a search or seizure warrant or probable cause. Under the probable cause exclusion, law enforcers must prove the urgency and exigent circumstances that lead to warrantless arrests or searches. However, a warrantless seizure or search can be justified when police officers have a reasonable belief in the association of an individual with crime or threat to security (Kim, 2017). Also, law enforcers can conduct a warrantless arrest or search to prevent the escape of a suspect or to safeguard evidence before being destroyed by the suspect. In cases where evidence against suspects is obtained through illegal searches or seizures, law courts are mandated to exclude the evidence from criminal proceedings.
Delegate your assignment to our experts and they will do the rest.
However, the fourth amendment can be violated if police officers suspect that the individual carrying a gun is linked to criminal activities or is a security threat. Nevertheless, possession of a gun does not qualify as a reasonable reason for suspicion unless proven to cause security concerns since that violates the second amendment. Therefore, searching a suspect for carrying a gun in public violates the fourth amendment and simultaneously undermines the second amendment. Individuals carrying arms should not be criminalized to enable seizures and searches. Also, unreasonable seizures and searches cannot justify gun violence control as gun owners can be the victims of discrimination and harassment for suspicions linking them to crime (Stern, 2017). Unreasonable seizures and searches violate the privacy rights which protect individuals from government interferences. In a case between Markell Horton and the state in the First District, the judges concluded that having a gun in public or carrying a gun is not a ground for reasonable suspicion and thus should not lead to seizure and search (Stern, 2017). However, the term "reasonable suspicion" is ambiguous and lacks quantifiable measures to ascertain whether the said occurrences warranted police intervention. Therefore, the application of the fourth amendment to protect the second amendment is relative and ultimately discretionary.
In states with open-carry policies where individuals can carry arms in public spaces, police officers can use the "Terry Stop" provision to detain persons momentarily on suspicion of involvement in a crime. Notably, the reasonable suspicion involved in the "Terry Stop" does not qualify to be probable causes of arrest as stated in the constitution (Jorgensen & Salberg, 2016). The "Terry Stop" occurs since it is challenging to determine individual intentions when people carry arms in public. The stop-and-frisk is unavoidable since law enforcers lack a distinct feature to distinguish between a criminal carrying arms in public and a law-abiding citizen carrying a gun under the protection of the second amendment. Therefore, to distinguish between licensed individuals and criminals, police are often triggered to violate the four amendment and conduct seizures and searches.
Besides, the second and the fourth amendment can be undermined by the no-knock warrant where police officers conduct seizure and search without notice. Law enforcers can invade an individual’s residence and conduct searches and seizures if notifying the individual will endanger their safety (Jorgensen & Salberg, 2016). The no-knock warrant is given when the police prove that the individual possessing the gun is a security threat and might be concealing criminal evidence or in possession of illegal firearms. Also, police can obtain a no-knock warrant when a suspect in possession of a gun flees into a residence after meeting or sighting police. Although the fourth amendment protects people against intrusion, fleeing from law enforcers creates suspicion of a crime that can be justifiable under probable cause. Failure to comply with law enforcers is a primary reason for violation of the fourth amendment for gun holders and specifically those carrying them in public spaces.
In summary, the fourth amendment was enacted by Congress to protect individuals from unwarranted search and confiscation, while the second amendment permits citizens to own and carry guns. However, the rights in the fourth and second amendment conflict when police arrest and search individuals after suspecting them of crime for carrying guns in public spaces. Warrantless seizure and search can happen when police identify an individual with a gun as a threat to security beyond a reasonable doubt. However, reasonable suspicion is relative, and thus, police can use "Terry Stop" and no-knock warrants to temporarily detain suspects and conduct seizures and searches without notice.
References
Holt, R. (n.d.). Why our flexible constitution makes America great. America: Land of the Free. https://washingtonswarriors.weebly.com/flexibility-of-the-constitution-cont.html#:%7E:text=The%20Constitution%20is%20made%20flexible,needs%20or%20setting%20up%20government
Jorgensen & Salberg LLP. (2016, April 13). Fourth Amendment and gun rights: What you need to know . https://jslawgroup.com/fourth-amendment-gun-rights/
Kim, J. (2017, June). Fourth Amendment . LII / Legal Information Institute. https://www.law.cornell.edu/wex/fourth_amendment#:%7E:text=Other%20well%2Destablished%20exceptions%20to,requirement%20in%20national%20security%20cases .
Stern, M. J. (2017, April 7). The Second Amendment vs. the Fourth Amendment . Slate Magazine. https://slate.com/news-and-politics/2017/04/why-liberals-should-be-alarmed-that-courts-are-eroding-the-second-amendment.html#:%7E:text=The%20Fourth%20Amendment%20protects%20individuals,he%20is%20carrying%20a%20firearm%3F
