Obama Smart Gun Push Could Conflict With Constitutional Rights, Legal Expert Says

President Barack Obama plans to make smart gun technology a primary part of his push to control firearms, but an expert warns that the new high-tech weaponry poses a danger to constitutional rights—and he’s not talking about the Second Amendment.

In April, Obama posed the question, “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?”

Obama released a presidential memorandum requiring three departments to push smart gun research—the departments of Justice, Homeland Security, and Defense. The memo also entices the industry to manufacture those devices by offering to provide funding for research. But applying the standards of phones to guns could create significant problems said Joseph Greenlee, a Second Amendment lawyer from Frisco, Colorado, and a member of the Federalist Society for Law and Public Policy Studies.

Smart guns are firearms that incorporate a safety feature that would allow only authorized users to fire it. This would include fingerprints to unlock the gun, or the use of a biometric sensor that detects the grip and hand size of the rightful user.

Most gun owners don’t want their guns to fall into the wrong hands, but there is a downside, said Greenlee.

“This [smart gun policy] could compel someone to incriminate themselves,” Greenlee told The Daily Signal. “The Fifth Amendment prevents someone from being compelled. But it seems smart gun owners might have to give up that right.”

The reason: Thus far, courts have said the government can’t compel a citizen to punch in a smartphone security code, but can require the opening of fingerprint smartphones.

The Fifth Amendment states that a person shall not “be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

In March, a federal judge in California allowed the FBI to compel the girlfriend of an alleged gang member to use her fingerprint to unlock a smartphone. The warrant stated, “Law enforcement personnel are authorized to depress the fingerprints and/or thumbprints of the person covered by this warrant onto the Touch ID sensor of the Apple iPhone.”

In a 2014 court case, Virginia prosecutors sought to obtain the contents of a smartphone either by getting the passcode or a fingerprint to unlock the device. The judge ruled that a suspect “cannot be compelled to produce his passcode to access his smartphone but he can be compelled to produce his fingerprint to do the same.”

This is because the Supreme Court has held the Fifth Amendment protects a person from being compelled to testify against himself, or from providing evidence, but does not offer protection against being compelled to produce a fingerprint.

“This could allow the government to force people to put their hand on the [smart] gun and open it,” Greenlee said.

The point would be that if only the owner of the gun could use the gun, and police could compel him to identify the weapon, then—so the argument goes—you are requiring him to incriminate himself.

“A good argument here is that you can catch more criminals. But the system is not set up just to catch as many criminals as possible. It’s also to protect the rights of the accused,” Greenlee said.

He added that tech problems could lead to false convictions. For example, a hacker could access a smart gun and use it in a crime, Greenlee said. Then the owner of the smart gun would be blamed.

“Smart guns are notoriously unreliable,” he said. “There is a big incentive to criminals for hacking these guns of lawful citizens.”

John Malcolm, director of the  Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, agreed requiring a smart gun owner to use his or her fingerprint to open the smart gun could raise Fifth Amendment concerns. However, he said he is unsure if a court would hold that requiring the use of a fingerprint is a violation of those rights.

Malcolm told The Daily Signal in an email:

It is likely, though, that a court would find providing a thumbprint to be ‘nontestimonial’ in nature, and therefore not a violation of the Fifth Amendment—in the same way that courts have consistently held that forcing someone to provide a fingerprint, or a DNA sample, or to stand in a lineup does not violate the Fifth Amendment because it is nontestimonial in nature, even though the evidence derived from the fingerprint/DNA sample/lineup can surely connect someone to a crime.

As a response to Obama’s memorandum, the departments of Defense, Justice, and Homeland Security issued a joint report April 29 calling for improving the market for smart guns. The departments said they will have additional recommendations in October for steps federal, state, and municipal law enforcement should take in procuring smart guns.

The Department of Defense will help manufacturers test smart guns at the U.S. Army Aberdeen Test Center in Maryland, according to the report. The Justice Department also will incentivize manufacturers with “cash prizes,” and use federal grants to encourage local governments to purchase smart guns.

The National Rifle Association doesn’t oppose the research into smart guns, a spokeswoman said, and doesn’t want to speculate on potential scenarios.

“We don’t oppose smart gun research. If it creates a new market, great,” Amy Hunter said. “What we oppose is government mandates requiring people to only use these guns.”

In 2002, New Jersey passed a law stating that when smart gun technology is available, residents must buy only these guns. However, state lawmakers are locked in debate about how to enforce this law.

A smart gun can cost substantially more than a traditional gun, and critics say they are less reliable.

The pro-gun website, BearinArms.com, did a comparison between the Armatix iW1/iP1, one of the more popular smart guns, which costs about $1,800. That’s compared to a Glock 19, one of the more popular standard handguns, which costs about $550.

Further, the Glock is more reliable than the Armatix in an emergency self-defense situation, according to BearingArms.com.

The Armatix system for owner identification is battery powered and both batteries must be working for the system to operate. Whereas the Glock has a magazine capacity of 15 rounds or more in one chamber and can be fired without delays.    

Greenlee said he believes there could be a market for smart guns—eventually. But he sees two major problems right now.

“Gun control advocates want these to be the only type of guns legally available, so this has caused them to be stigmatized,” Greenlee said. “The guns are also unreliable and very expensive.”