Scholarship Highlight: The Constitutional Significance of the Home

This past Term, the Supreme Court had several Fourth Amendment cases that were structured around the significance of one’s home. In Lange v. California and Caniglia v. Strom, the Court confronted questions about how officers’ entry into a home affects the constitutional analysis. I’ve written on the Second Amendment/firearms law implications for both cases, including Lange’s line-drawing attempts around felonies vs. misdemeanors and Caniglia’s focus on guns, homes, and emergencies.

A recently posted article from Ric Simmons, Lange, Caniglia, and the Myth of Home Exceptionalism, forthcoming in the Arizona State Law Journal, argues that although Lange and Caniglia both assert that a home is treated much differently for Fourth Amendment purposes, that exceptionalism is actually a myth. I think it has implications for how we think about the Second Amendment as well. In particular, Heller listed its home impact as a major reason to view the D.C. handgun ban at issue there as problematic: "The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute." Courts and scholars have considered this dividing line an important one in Second Amendment challenges (including the Center's own Darrell Miller, who has written about the possibility of maintaining "a home-bound Second Amendment" and Joseph Blocher, who has written about domestic violence and the concerns it raises for "a home-centric Second Amendment"). Many courts have read the statements from Heller to mean that firearm regulations affecting home firearm possession are subject to more intense scrutiny than restrictions on guns in public. I suspect this line is going to continue to matter in future Second Amendment cases.

Ric's piece sheds important light on how that line is treated in one important constitutional context. Here’s the abstract from his piece:

For over a hundred years, the Supreme Court has employed rhetoric in its Fourth Amendment cases that supports the concept of “home exceptionalism”—that is, the idea that protecting the home is the “very core” of the Fourth Amendment. Two cases from this year’s Supreme Court term, Lange v. California and Caniglia v. Strom, appear at first to support this doctrine, since a narrow reading of their holdings appears to enhance Fourth Amendment protection of the home. However, a closer examination of Supreme Court doctrine reveals that home exceptionalism is a myth. Although the home does receive small amounts of special protection in some areas, such as the arrest warrant requirement and the protection of curtilage, these special protections are far weaker than the court’s rhetoric implies. In fact, the recent trend is for the Court to limit the Fourth Amendment protection given to the home. Lange and Caniglia are consistent with this trend, as the Court’s holding in fact did little to increase the protections for the home and re-affirmed many of the doctrines that permit police to enter a home without a warrant.

This essay is one of the first to analyze Lange and Caniglia, the Court’s two most recent Fourth Amendment cases. It does so by placing the cases in the proper historical and doctrinal context, first tracing the roots of home exceptionalism back to the 1800s and separating the broad language that the Court has often employed in these cases from the narrow legal rules that the cases actually establish. The essay demonstrates that Lange and Caniglia follow a well-established pattern, beginning with bold precatory language about the sanctity of the home, then delivering a narrow holding, and finally qualifying the reach of that holding with further language limiting its practical effect.