Freedom: A Bargain at Any Price
By David Kopel
Some folks think that all of our Constitutional freedoms are an unalloyed 
benefit. Don't believe them. Most of the freedoms in the Bill of Rights 
exact a heavy price from society. That's why most other countries, 
including all of our democratic allies, don't protect these freedoms with 
anything near the stringency we do.
Take the Fourth Amendment, which prohibits unreasonable searches 
and seizures. Many other democracies have a similar rule, but none of 
them have what our Supreme Court has invented: the exclusionary rule. 
Under the exclusionary rule, if police seize evidence illegally the evidence 
can't be admitted into court - no matter how important the evidence is.
Foreign visitors are shocked when they find out about the exclusionary 
rule. Although studies indicate that the rule prevents successful 
prosecution in only one percent of all criminal cases, one percent is a 
lot. Over the years the exclusionary rule has freed thousands of 
hardened criminals who have laughed at a society that let them go free. 
And no doubt these thousands of freed criminals went on to commit 
tens of thousands more crimes.
Most democratic countries forbid physical torture of a criminal suspect, 
but only America boxes in the police with such an elaborate set of rules 
designed to prevent psychologically coercing a suspect.
The hard truth is that without some pressure from the police most 
criminals won't confess. In many cases there isn't enough tangible 
evidence to convict someone without a confession. That's why the 
British allow a suspect to be held without outside contact for several 
days. The Japanese allow a person to be secretly detained for weeks 
at a time. In America, however, suspects must be told that they can 
have a free lawyer, to whom they can have nearly immediate access.
Criminal procedure isn't the only Constitutional field that features strict 
rules. Take the First Amendment. Current libel laws make it almost 
impossible for any public figure to recover damages for even the most 
vicious lies. The victim of libel must prove that the author misstated the 
facts "knowingly or recklessly." And since it's pretty hard to get inside 
the author's head and prove what he was thinking, the vast majority of 
libel plaintiffs lose.
Losing your reputation to a libel is horrible, but it's nothing like losing 
your son or your daughter to some cult leader. In most of the rest of the 
world Jim Jones would have been thrown into an insane asylum long 
before he led his victims off to poison death in Guyana. It's one thing to 
do what Britain does, and say the Protestants, Catholics and Jews ought 
to leave each other alone; it's something else entirely to do what we do, 
and let demons like Jones run free.
Many people believe that no Constitutional provision causes more 
damage than the Second Amendment's recognition of the right to keep 
and bear arms. All-out national gun control couldn't keep professional 
criminals from buying guns, they concede, but they believe that controls 
would make it hard for young hoods to acquire the tools for a spur of the 
moment mugging. In addition, a widespread ban on gun ownership, if 
successful, theoretically would prevent many gun accidents.
So are strict Constitutional freedoms a bad idea? Not at all. By refusing 
to sanction illegal police behavior, a strong exclusionary rule protects 
the integrity of the judicial system. Unless illegally seized evidence is 
kept out of the courtroom, there is no practical incentive for the police 
to obey rules about searches and seizures.
Tough rules about coerced confessions were created precisely because 
lesser rules proved insufficient. In countries like Japan and Britain, where 
suspects can be held without outside contact, police abuse and torture 
of innocent suspects can and does occur.
America's broad freedom  of religion does allow "cults" to flourish, but 
one person's cult is another person's true revelation. America is the 
birthplace of Baptists, Christian Scientists, Unitarians, Latter Day 
Saints, Reform Jews and many other groups that have blossomed under 
the bright sun of America's religious freedom. These groups are 
considered "cults" in many other nations, but America's tolerant spirit 
recognized that there are many paths to God, and that any attempt by 
the government to direct religious belief will ultimately harm both 
religion and society.
America's high standards of freedom of the press have made the 
American press especially bold a out ferreting out wrong-doing in high 
places.  Unafraid of  being slapped with a libel lawsuit, American 
reporters were able to uncover corrupt affairs such as Watergate and 
the Iran-Contra scandal that would have remained secret  in other 
The Second Amendment right to bear arms inflicts (if the gun control 
lobbyists are right) significant costs on society. Part of the pro-rights 
response to the gun ban movement has been to point out that gun 
control does nothing to reduce harm associated with guns. Gun rights 
advocates also point out that firearms are used to prevent violent 
felonies hundreds of thousands of times a year. True enough, but it 
is also important to look at the long-run picture.
Whether or not widespread gun ownership increases or decreases 
accidents or crime, gun ownership is a long-run "holocaust insurance 
policy." Because the American people are armed, no American 
government could successfully perpetrate a policy of mass murder. 
In every country where genocide has occurred - including Cambodia, 
Uganda, the Soviet Union and Nazi Germany - the perpetrators have 
first disarmed their future victims.  The ability of the American people 
forcefully to resist a tyrannical government could, in the long run, 
prevent tens of millions of deaths.
In the long run, the risks of a single maniac with a gun he bought over 
the counter are outweighed by the risks of a maniac with a  standing 
army and no forceful citizen opposition. Hitler and Tojo killed far more 
people in a few years than have all the world's private gun misuses 
since the invention of gunpowder. And Hitler and Tojo were able to 
enjoy their monopoly of power in part because they had disarmed all 
potential resistance. Hitler's gun policies, like those proposed by many 
American gun control advocates, limited gun possession only to people 
who had been approved by the government, and allowed only the 
possession of guns which the government deemed suitable for sports. 
(For more information on Nazi gun controls, see the new book Gun 
Control: Gateway to Tyranny, published by Jews of the Preservation 
of Firearms Ownership (JPFO) Inc., 2872 S.  Wentworth Ave., 
Milwaukee, WI  53207, (414) 769-0760)
The same points made about the Second Amendment apply to the rest 
of the Bill of Rights. Yes, press abuses of free speech cause harm every 
day of the year. But in the long run, much more serious harms could be 
inflicted by a government that had the ability to control the press. 
Criminals who are set free  because of Bill of Rights protections cause 
harm, but a government that can search people in a police station 
without telling their relatives, can cause greater harm.
One of the important reasons that the American Bill of Rights was 
created was that its authors knew that there would always be short-run 
pressures of more government power, to deal with the social 
dislocations that sometimes result from liberty. The founders knew that 
certain freedoms, including free speech and the right to keep and bear 
arms, should be placed beyond the reach of transient and excitable 
majorities. In the long run, enforcing firm restraints on government is 
the most important way to protect public safety.

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