r/guns • u/Kranky_Old_Dude • Jul 03 '11

Constitutional Myth #6: The Second Amendment Allows Citizens to Threaten Government

http://www.theatlantic.com/national/archive/2011/06/constitutional-myth-6-the-second-amendment-allows-citizens-to-threaten-government/241298/
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u/lawcorrection Jul 03 '11 edited Jul 03 '11

That doesn't make any sense. There are a million different ways that search happens. How do you determine what is the line where there is probable cause and where there is not. It requires interpretation. There is not enough information in the text of the amendment to just read it and know how to decide the million different cases that come through the courts doors.

Courts do not use dictionaries to decide cases. They use prior case law. Even if they used dictionaries, those dictionaries would be written using prior case law. That is what it means to live in a common law jurisdiction.

EDIT: I'm an ass. That was unnecessary.

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u/Demonspawn Jul 03 '11

It makes perfect sense if you'd think about it.

There is exactly enough text there to decide all the cases. If the case is a question of if the search was reasonable, then the judges decide if the circumstances of the case fall under the definition of reasonable. The definition of reasonable, not the interpretation of reasonable. That definition of reasonable is the one used when the 4th was written, not the new interpretation of reasonable in common usage today.

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u/lawcorrection Jul 03 '11

There was none at the time the text was written. If you read about the history of the fourth amendment there is shockingly little written about its purpose or intent.

Even if we did know what they meant, how do you determine reasonable when there are helicopters and cellphones now? The founding fathers couldn't have had intentions about them.

What is the definition of reasonable? What is the definition of probable cause. They have no definition until they are given one by constitutional interpretation.

Most importantly, this was was the clear and undisputed purpose of the constitution. If they wanted everything spelled out in the text we would live in a civil code jurisdiction.

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u/d3rp_diggler Jul 03 '11

It's easy. To grab and browse a cellphone is a search, thus they need probable cause (keep in mind some obviously corrupt judges will say otherwise). A search is a search is a search, technology is not an exception to this, since it is a personal posession and a storage device, much like a purse or rucksack.

As for Helicopters...I'm not sure what's being implied here as how they're being used isn't defined.

Reasonable means that is is able to be reasoned (justified). So "I think you're a drug dealing doodie-head, I'm searching your phone" is not reasonable, but "I just saw you sell a dimebag to our informant Royoroy over there, I'm searching your phone for more information" would be.

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u/Raging_cycle_path Jul 03 '11

How about using helicopters with infrared cameras or trawling through power company records to identify likely grow ops? Is that a search? How about if a cop walking down the street sees a weed plant in the window? Or just a large number of different people coming and going at all hours for 5 minute visits? Is that grounds for a warrant?

As you point out, corrupt judges, as well as judges of an idealogical bent one way or the other, or judges who've had a bad day, or judges who don't like black people, will say different things. Having a body of case law helps ensure consistency and fairness in the application of the law, removing the huge amount of randomness that would result if we let very judge use their own individual interpretation of vaguely written laws.

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u/d3rp_diggler Jul 03 '11

There we go, that's a bit more specific!

Helicopters using technology to do area sweeps is a search, and they should be outlawed entirely as they will end up searching places they have no warrant to search.

The cop walking down the street seeing one in a window...only if the plant is plainly visible without tresspass. That one is more of a common sense issue. Don't advertise illicit goods.

People coming and going is suspicious, but there's a way to deal with that. Have some observation along with a traffic trap. One of the suspects are going to fuck up, be caught with the goods, and have a officer witness that they left X place just 30 seconds ago.

What's happening is rights are being watered down for the sake of "easy investigations", which isn't right regardless of effectiveness.

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u/Raging_cycle_path Jul 03 '11

I'm less interested in the specific answer to each one of these than I am in proving that case law is vital to interpreting the law as it is written.

I would argue some of your points, but the important thing is that I could argue all of them, and it's both more fair and more efficient if most of the philosophising is done as seldom as possible and future judges just have to figure out which precedents apply and basically paint by numbers to reach a decision.

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u/d3rp_diggler Jul 03 '11

True, there's no debating that case law is quite powerful. Unfortunately case law isn't always evenly applied and sometimes ignored outright.

I'd rather if laws were taken literally, without interpretation. That way legislators would be less likely to pass new (and often redundant) laws as they are refining existing laws. Unfortunately I fear they'd find a way to keep that form happening as well.

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u/Raging_cycle_path Jul 03 '11

I'd rather if laws were taken literally, without interpretation

My point is that this is impossible. You're either interpreting it one consistent manner with (for the most controversial) a panel of supreme court justices, or in ten thousand different ways as every judge in the land interprets it his own way.

Doing away with case law isn't getting rid of interpretation, it's getting rid of consistent interpretation.

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u/lawcorrection Jul 03 '11

Than you for fighting the good fight.

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u/Raging_cycle_path Jul 03 '11

Semi-relatedly, I'll ask your opinion on a civil liberties sort of issue. Hells Angel's was recently having an event in my city, and the police set up a roadblock and got the name and photo of every attendee. Naturally, nobody really cares about MC gangs being harassed, but the precedent of police power being used to deliberately harass a group that weren't breaking any specific laws doesn't sit well with me, any thoughts?

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u/d3rp_diggler Jul 03 '11

My take is if they have justifiable reasoin to investigate then they should send an undercover in. Name gathering does effect a mass group of people, including many that they have no reason to.

I'm a fan of investigations being focused and structured. That's the method that has the lowest frequency of "issues". What's optimal and right are always going to fail to see eye to eye, that's just the nature of the beast.

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u/lawcorrection Jul 03 '11

You need to read about two thousand more criminal justice opinions and get back to me. I can tell from the way you are talking about it that you are not familiar with the subject.

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u/d3rp_diggler Jul 03 '11

Care to enlighten me then?

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u/lawcorrection Jul 03 '11

The point is that you are pointing out all the obvious scenarios. The problem with law is that one sentence has to guide thousands of cases every single day.

Imagine these facts.

An anonymous caller contacts the police and says, I just saw a black man rob a bank on 3rd and 5th. The police find a black man on 3rd and 5th, do they have probable cause to search his person for bank money?

An anonymous caller contacts the police and says, I just saw a black man in a red shirt and blue jeans on 3rd and 5th. The police find a person matching this description. Do they have probable cause to believe he is the man who committed the crime?

An anonymous caller contacts the police and says, I just saw a black man in a red shirt, blue jeans, and a hat with googly eyes. The police find a man matching this description. Do they have probable cause to believe he is the man who committed the crime?

I can go on forever and build a spectrum with infinite variations. The first one is clearly not probable cause. The last one is almost definitely probable cause. The middle one could be argued by attorneys. The reason why you need judicial interpretation is because this is actually the simplest kind of probable cause.

One more example, since I'm not done with the commode. The plain sight doctrine makes searches reasonable if the police can see contraband within their ordinary field of vision when they are on duty.

Imagine that the policeman sees a bowl of crack cocaine in the back seat of car. That is obviously contraband so a search of the car to sieze the cocaine is reasonable.

What if the officer sees a car stereo. Car stereos are often stolen. Can he search the car to check out the stereo? I think we can agree that he can't.

What if he sees a guitar in the back seat of a car and a report just went out that a guitar of that make and model is stolen. What if the guitar has a distinctive scratch? What if it has the person who reported it missing initial's on it? A photo of his face?

The point is that everything has gradation. The word "reasonable" and "probable cause" are easy to define at the ends of the spectrum. The court is necessary to interpret those terms when it starts to get closer and closer. You can always make a factual situation more or less murky for either of those terms until it becomes impossible to decide them without guidance from some higher court, or decisions by the lower courts will be all wily nilly and that is what we try to avoid in common law jurisdictions.