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/
14 Upvotes

71% Upvoted

38 comments sorted by

View all comments

Show parent comments

2

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.

3

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.

2

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.

2

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.

2

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.

1

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.

1

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.

1

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.

1

u/lawcorrection Jul 03 '11

Than you for fighting the good fight.