Skeleton Keys, Airhorns, And Magic Words

Over at the Volokh Conspiracy, Orin Kerr has an informative post about an important Fourth Amendment decision out of the United States Court of Appeals for The Third Circuit. United States v. Katzin addresses, among other things, whether the Fourth Amendment requires police to get a warrant before installing a GPS on your car — the court says yes.

But inspired by tipster Patrick I want to focus on one line in the opinion by Judge Greenaway:

The Government contends that requiring a warrant prior to GPS searches would “seriously impede the government‟s ability to investigate drug trafficking, terrorism, and other crimes.” (Appellant Br. at 27.) We fail to see how such a conclusory assertion suffices to except GPS searches from the requirements of the Fourth Amendment‟s Warrant Clause. Doubtless, we are aware of the dangers posed by terrorism and comparably reprehensible criminal activity. However, we would work a great disservice by permitting the word “terrorism” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution. [emphasis added]

Judge Greenaway calls it a "skeleton key." I've called it an "airhorn issue." What is it? It's a concept — like "terrorism menaces us" and "think of the children!" and "drugs are bad" that is used as a substitute for principled legal analysis. Skeleton keys and airhorns are not so much argued as they are invoked, ritualistically, to justify government power. As Judge Greenaway implies, the government invokes them without principled support.

When the government and its supporters invoke "terrorism!", they often want to avoid three questions: (1) what evidence is there that this situation has anything to do with terrorism? (2) How will this power you are seeking actually reduce the danger of terrorism? (3) Have you supplied evidence showing that the need to fight terrorism is sufficient, under established constitutional law, to justify this particular infringement of rights?

That's why I call it an airhorn issue — it's calculated to drown out argument, not make an argument. "Terrorism" — like Think of the Children! and The Sourge of Drugs! and Cyberbullying! — is frequently used as a substitute for evidence or legal analysis. Why can the Department of Homeland Security get involved in online piracy? TERRORISM! Why can a police department get search warrants to discover the identity of someone who wrote satirical cartoons about it? CYBERSTALKING! Why can a state pass a law making it a crime to post mocking pictures? CYBERBULLYING! Why should registered sex offenders be required to register with their probation officer when they use a nickname to leave comments on a newspaper's web site? THINK OF THE CHILDREN!

Think critically. A word is not the same as the thing it purports to describe. Words are often arguments. Let us not be dupes who accept arguments uncritically, particularly when they are invoked to limit our rights. Words, used right, can be magical, in a colloquial sense. Think of "I love you" and "not guilty" and "Louis, I think this is the beginning of a beautiful friendship." But let's not stand by while the government and its supporters attempt to use words like magic invocations that grant power merely by their utterance. "Terrorism?" Prove it.

Last 5 posts by Ken White


  1. Earle says

    I've made a handy script for folks to incorporate this into their blog postings and briefs:


    Hope that helps. ;-)

  2. Josh C says

    I like this. It's a good argument, well illustrated.
    Separately, I admire the thoroughly-masticated scenery.

  3. ZarroTsu says

    "Terrorism?" Prove it.

    That sentence is likely to scare narrow-minded people.

    Therefore, terrorism.

  4. Marconi Darwin says

    "Terrorism?" Prove it.

    I have the perfect rejoinder for people insisting on silly proofs: "9/11. Hello?"

  5. darius404 says


    Don't be ridiculous, we're ALLIES with Eurasia and Eastasia, always have been. We're at war with Middleastia, it's always been that way.

  6. rabbitscribe says

    "Why can the Department of Homeland Security get involved in online piracy? TERRORISM!" … "Terrorism?" Prove it."

    "I have the perfect rejoinder for people insisting on silly proofs: "9/11. Hello?"


  7. says

    +1 for the casablanca reference.

    +1000 for the always insightful, thought provoking, and sometimes snarky, post and analysis.

  8. Sami says

    Has America been experienced an ongoing wave of terrorist strikes that somehow didn't make the news in Australia?

    I don't get why "because terrorism" could still be a thing, when "because gun crime" isn't for, say, instituting background checks or anything like that.

    ("Because second amendment." Yes, but the second amendment refers to a "well-regulated militia". Surely that suggests that the right to bear arms is nonetheless to be well-regulated? So background checks. Everyone wins.)

  9. says

    @Marconi: OK, now show how pharmacy burglaries at Rite-Aid connect to 9/11, or any plan/plot to perform an attack of equivalent magnitude.

    Because that's what this case (US v. Katzin) is about — trivial local crime. But the cops are using "TERRORISM!!!!" to claim they don't need a warrant to plant a GPS device on a suspected Rite-Aid robber's car.

    (Honestly, thanks to Poe's Law, I can't tell if you're mocking those who would try to justify this sort of thing, or if you genuinely believe that the 9/11 attacks mean we should suspend the Constitution for the duration of the emergency, which is "forever, and a bit". So I may be reacting seriously to satire, which is always embarrassing.)

  10. AC says

    There's also a real tendency to add "cyber" to make things seem more pressing (cyberterrorism, cyberbullying, cyberstalking, cybertrafficking, etc). For some reason, any problem is assumed to be more threatening when it's "on the internet".

    I like reading the latest FUD releases with s/cyber//g, as in "we need to monitor all of our children's internet traffic to prevent bullying" or "we need to keep people from saying hurtful things to prevent stalking".

  11. says


    I have the perfect rejoinder for people insisting on silly proofs: "9/11. Hello?"

    I do not think that word means what you think it means.

  12. A. Nagy says

    Think of the children or MASS SHOOTING is what we use for background checks and any form of gun control. Because honestly for the majority of americans gun crime is something that happens to other people, while a gun used at insert school/insert workplace freaks people out because it could be them.

  13. Dan Weber says

    Why can the Department of Homeland Security get involved in online piracy?

    In old days, the primary attacks on copyright came from people importing books from abroad. So the power to enforce copyright law was put in the Customs Department.

    Customs eventually became ICE. ICE got pulled into DHS. And that's where we are.

    The Secret Service that defends the President used to be under Treasury, not because the President was made of money or because the freemasons or whatever, but because stopping counterfeiting was their bailiwick and so they were under Treasury.

    You could certainly argue that another part of government should do this instead, and I wouldn't disagree if you said the DHS overplays its WE ARE ANTI-TERRORISM DHS card when going after piracy. But this particular fact has an entirely reasonable explanation.

  14. jimmythefly says

    The Government contends that requiring a warrant prior to GPS searches would “seriously impede the government‟s ability to investigate drug trafficking, terrorism, and other crimes.”

    This kind of argument always struck me as silly. It seems to crop up often, the idea that a particular law (or particular ruling on a law) will make it more expensive/more difficult?more time-consuming for the police to do their jobs.

    So what?

    The point isn't how easy or expensive the law is, it is whether the law is just and right and being applied properly.

    Yet I see that type of argument brought up time and again. Does it strike anyone else as odd?

  15. Steven H. says


    when "because gun crime" isn't for, say, instituting background checks or anything like that.

    It should, perhaps, be noted that any purchase of a firearm from a licensed dealer requires a background check.

  16. Levi says

    If you truly wish to parse "well-regulated", you should consult Federalist 29 which was one of the rationales used to promote the the American constitution prior to ratification. "Militia" referred to anyone who could serve to defend the nation or people and "well-regulated" meant they should be able to train themselves to sufficient competency with any weapons they possessed. Consider:

    "… if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

    Remember, they had just fought a revolution against an oppressive government, they would hardly have recommended to hand all authority over weaponry to the next potential tyrant.

  17. says


    Yet I see that type of argument brought up time and again. Does it strike anyone else as odd?

    Odd? No. Law enforcement agencies that make the argument want to be able to accomplish their function more easily. It typically comes at the expense of our rights. Though it's intent is not sinister (after all, they're just trying to keep us safe. . . yes from ourselves in some cases), the practical impact is.

  18. Dion starfire says

    The reason rational people (currently rational – we can all be irrational at times) reject "skeleton key" and "air horn"type arguments is because we've seen over and over the inevitable abuse of unchecked power does more damage than whatever problem that power was granted to solve.

    Here are some examples:
    * Mccarthyism
    * Prohibition
    * Internment of Americans with Japanese heritage during WWII
    * Vietnam war (think I'm stretching a bit on this one, sorry historians)
    * Guantanamo detainees
    * Clark as emperor

  19. luagha says

    To Sami:

    A 'well-regulated militia' means a well-trained militia who can move as a unit, fire to a commanded point of aim, and who will not break under fire.

    You would be more familiar with the opposite term, an 'irregular militia'. The most likely fiction you would have come across the term in is Sherlock Holmes's books, movies, and cartoons; where he maintains what he calls the 'Baker's Street Irregulars.' They are his pack of orphans and street kids whom he pays to keep him informed and whom he can marshal into a dangerous slingshot-wielding cadre at a moment's notice.

    'Irregulars' can be dangerous troops to fight, but have a tendency to break and run. Famously, President Theodore Roosevelt fought in the American First Irregular Cavalry in his famous charge up San Juan Hill. The First Irregular Cavalry was made up of highly skilled volunteers – all famous lawmen, trackers, sharpshooters, and rangers – but because they had never had the opportunity to train together, they were called 'Irregular Cavalry' as opposed to 'Well-Regulated.'

    Currently, the army of a state is called the 'regular army' (you can look up 'regular army' on Wikipedia) while guerilla forces who may work for a state at some remove, like terrorist groups with deniable contacts or the Civilian Irregular Defense Groups trained by the Green Berets in Vietnam, are called 'irregulars.' Someone who has been through US Army Basic Training is called an 'Army Regular.' Someone who has been through Officer Training School is called a 'Regular Officer.'

    If you check, the first definition is 'to control or direct by a rule, principle, method', the third definition is 'to adjust so as to ensure accuracy of operation: to regulate a watch', and the fourth definition is 'to put in good order: to regulate the digestion.' Obviously the meanings are related, but the 'well-regulated militia' in the Second Amendment pertains to the third and fourth. Justice Scalia specifically refers to these definitions in his statement in the Heller decision. Other dictionaries will have more references as to this standard use of the term and will specifically state its relation to machineguns (a 'regulated' machinegun uniformly shoots to the same point of aim) and militias (able to move in unison under command, will not break under fire, shoots at designated targets when commanded).

  20. Marvo says

    And (4) Explain why this 'anti-terrorist' power will not be misused against people who are clearly not terrorists.
    E.g. the people protesting an arms fair in London in 2003 targeted by the Met Police using ant-terror laws.

  21. CJK Fossman says


    You omit a crucial element of a well-regulated militia: one that submits to the same discipline as the other armed forces. Today, in the USA, that means obeying the orders of the commander-in-chief and his subordinates through the chain of command.

    A bunch of weekenders traipsing through the woods in cammies are not well-regulated even if they can march in formation, fire when ordered and not retreat unless so ordered.

  22. David C says

    CJK, your interpretation seems to render the amendment meaningless. Your "militia" is indistinguishable from an army.

  23. luagha says

    Mr. Fossman's assumption is not borne out by history, where many small American militias act of their own accord and only sometimes in loose federation.

    Of countless other examples, consider this listing of the surrenders during the civil war:

    At the time of Lee's surrender to Grant on April 9, the Confederates had three armies in the field of which Lee's was the smallest to be called an army.

    All of them were different militias with different command structures and were defeated individually – although of course the surrender of one affected the others.

    Volunteer search-and-rescue teams are also more modern examples of well-regulated militia – at the trigger of a phone tree able to mobilize dozens of citizens with appropriate equipment all ready to act in concert. And yet they are not so different from weekenders traipsing through the woods in cammies.

  24. says

    No, it's an old Internet law: No matter the topic, someone will use it to beat their favorite dead horse.

    "My cat just did something cute."

    "Once Dumbamacare is implemented, you won't be allowed to have a cat because it's against Sharia law! Glenn Beck said so!"

    "Shut up, you fascist! The REAL truth is when the Rethuglicans enslave us all to serve the 1%, he'll have to eat his cat to survive! Salon had an article on it!"

    And it's been like this since at least 1989, which was really confusing back then, since we had no idea what "Dumbamacare" meant or what Salon was.

  25. Malc. says


    Hamilton's Federalist #29 is often cast as the Secret Decoder Ring that explains the Second Amendment, but in so doing one simply opens up the same problem at a different level: the real argument that Hamilton is advancing is one about not having a standing army (yeah, right, I know), because the militias can be deployed to form one as and when required. But the assumption throughout Hamilton's essay is that the militias would be under the control of the states, i.e. that they would be regulated by the several states.

    Since that would have been covered by the Tenth Amendment, the Second must mean something other than the opinions expressed by Hamilton.

    In other words, Federalist 29 is a discussion about Article I Section 8 and Article II Section 2. The latter, of course, raises doubts about the oft-expressed thesis that "the militia" exist to prevent over-reach and tyranny from the central government: if the President is the Commander-in-Chief of the militias (and he is), then "the militia" would be part of the problem, not the solution (in the event of some seditious wrangling).

  26. En Passant says

    Think critically. A word is not the same as the thing it purports to describe.

    +N for Korzybski.[1]

    Ditto for the linked 2009 entry illustrated by Magritte, as pointed out by Mojo in comments at the time.

    FN 1: N is not a number.

  27. En Passant says

    "My cat just did something cute."

    A typical liberal excuse for tort reform, just to keep me from suing you for destroying my keyboard and nasal passages with hot coffee.

  28. Ariel says

    Sidney Hook had a term for this, it was epithet of abuse. It served the same purpose of drowning out any dissenting voice, often involving "you are an X because you disagree".

  29. Not a Frenchman says

    "A word is not the same as the thing it purports to describe."

    Ceci n'est pas une pipe.

  30. Levi says

    I agree you can't wave Federalist 29 around to explain everything, but I think the two sections dovetail rather nicely:

    2nd Amendment:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Article II Section 2:

    The President shall be Commander in Chief … of the Militia of the several States, when called into the actual Service of the United States

    So, to my reading Article II explains who is in charge if the militia is called into federal service (incidentally, immediately following the President's oath to uphold the Constitution), but the 2nd Amendment is ensuring that a pool of potential militia will always exist as the people's right "shall not be infringed". Federalist 29 is most useful in illustrating that "well-regulated" is not a term indicating "bogged down with many rules" as we would understand it today, but rather talking about competency (especially compared to standing armies). And I think that in this context the 2nd amendment is actually amending Article I where it states that the legislature will provide for arming (not disarming) the militia.

    There are plenty of other quotes that back up the notion that widespread armament was intended at the time, such as Jefferson ("No free man shall ever be debarred the use of arms") and Madison's lament in Federalist 46 about how the nations of Europe are afraid to trust their populations to be armed ("Besides the advantage of being armed, which the Americans possess over the people of almost every other nation" "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."). But anytime I see someone argue that the government has a right to disarm the people, it is generally built around a faulty understanding of the term "well-regulated" in its context.

    To Bruce and Lizard's point, I think anytime someone invokes their interpretation of their hobby horse that it invites everyone else to come out with their paeans on the subject.

  31. luagha says

    I freely admit that 'well-regulated' is my reflex trigger.

    I mean, it's okay if people have never read military-based history that would make the term's meaning obvious. But to never have read Sherlock Holmes? My high school English books had the occasional Holmes story.

  32. says

    In other words, our justice system should not be run by The Girl You Wish You Hadn't Started A Conversation With At A Party.

  33. The Man in the Mask says

    Bravo. I've often said that there is no such thing as cyberbullying: there are only grandstanding politicians (and others) who utilize it to advance their political agendas.

  34. Bryan Broyles says

    Duncan v. Kahanamoku, 1946: "From time immemorial despots have used real or imagined threats to the public welfare as an excuse for needlessly abrogating human rights." J. Murphy

    This has been going on a long, long time.

  35. BJI says

    I think Catch-22 is one of the best pieces of literature to satirize the words as arguments. It's certainly clear we live closer to a dystopia than utopia.

  36. says

    "The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary." (Mencken, 1918)

    Who can find the oldest verified incarnation of this observation? (Personally, I suspect there are hieroglyphics which would translate to some version of it. Human nature never changes.)

  37. Michael K. says

    While I kinda dig the Katzin decision, I think I'd prefer a Third Circuit that knows the difference between "discreet" and "discrete."

    I know Ken's people have no tradition of proofreading, but I thought judges had slavesclerks for that kind of thing.

  38. The Partiot says


    > The point isn't how easy or expensive the law is

    My declaration of being proudly incompetent of the job I've insisted you pay me for, would only be denigrated by an enemy of the state. Is that what you are, jimmythefly? An enemy of the people? A threat to their safety? Some kind of

    O terrorist
    O anarchist
    O 1%
    O 99%
    O homophobe
    O heterophile
    O pot head
    O reader of (offline) books
    O other (please specify)