Monday, August 25, 2008

Explaining the difference between the 2nd and the 4th Amendment to our Liberal friends

jason at Delawareliberal posts the following about Democrat Jack Markell's latest plans:

Today Jack Markell joined community leaders and public-safety advocates Monday to release his plan to make Delawareans safer in response to the recent escalation of gun violence.

I have just skimmed it so far, but I really like these practical common sense steps which DON’T INFRINGE ON ANYONE’S 2ND AMMENDMENT RIGHTS.


One of the proposals was the following:

LAUNCH A “PARENTAL CONSENT TO SEARCH AND SEIZE PROGRAM”: to help police and parents work together to stop youth firearm possession. Through such an effort, police will seek permission from a homeowner to enter a home in search of illegal firearms belonging to juveniles and, if found, the illegal firearm is confiscated but no gun possession charges are filed. When this was tried in St. Louis, consent was given nearly all the time and half the searches turned up firearms – with 510 weapons seized and taken away from youths during an 18-month period.


Yeah, Jason, you're right: this proposal to confiscate illegal firearms doesn't violate the 2nd Amendment--it only trashes the 4th.

You remember the 4th Amendment, don't you, Jason?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Here's why, by the numbers, why this is such a bad idea:

1. If the police had a reason to believe that a juvenile in a specific house possessed an illegal firearm, then they'd be able to show probable cause and get a warrant. You recall warrants, don't you Jason? They are those things that the FISA sell-out allowed the government to get away with not having used. You know, when you bitched about shredding the Constitution and all that?

2. If the police don't have a reason to believe that a juvenile in a specific house possesses an illegal firearm, then the only way they could be doing such searches is either through area sweeps or profiling. In other words, this gives the police the ability to conduct fishing expeditions based on no evidence acceptable in a court of law.

3. There is a reasonable presumption that most parents agree because the police represent the power of the State, and that especially poor people and minorities will have good reason to believe that saying "No" to such a supposedly voluntary search is without potential consequences, not the least of which will be getting labeled by the police as uncooperative.

4. The plan suggests that any firearm found would be confiscated without charges being filed. This is (technical term, wait for it) utter horseshit. Even if the police officers believe this, there is no way they can actually carry through. Why? Three situations:

A. The weapon is identified as one that has been used in a felony. Even if the police are somehow barred from using the weapon itself as direct evidence in court, they now have a pointer to a suspect that they otherwise would not have had.

B. Eventually the information regarding these weapons will become public knowledge. Therefore, let's assume that the weapon in question has been used in a homicide but the police can't make the case because of evidentiary laws. However, nothing will stop the relatives of the homicide victim from filing a wrongful death lawsuit.

C. If the weapon is illegal and was obtained through theft or illegal sale, the police may not be able to charge the juvenile, but have now been empowered through a relaxation of 4th Amendment protections to go after the person who sold the gun, or who lost the gun and did not report it.


Thus, in multiple situations this program will inevitably lead to prosecutions and lawsuits that occur because the 4th Amendment has been almost fatally wounded.

5. Perhaps the scariest part about this is the open-ended nature of the violation of the spirit of the 4th Amendment. If weapons, why not drugs? If drugs, why not stolen property? What we are doing here is moving the bar a very long way from presumed innocent until proven guilty toward a need for you to demonstrate your innocence rather than for the State to prove your guilt.

Frankly, Jason, this is such a Constitution-shredding idea that I'm surprised even you bought it.

But I guess if you raise that red-flag term "guns" in front of a Statist Liberal, you can pretty much trick them into surrendering just about any rights you want to take away.....

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