a reply to: neo96
Interesting position however there are some flaws -
The 2nd amendment applies to the individual thanks to 2 scotus rulings in 2008 and 2010 (Washington DC and Chicago, of all places, were the involved
The 4th amendment does not apply to the individual, it applies to the government. A 4th amendment violation can result in any and all evidence
collected from the point of violation can be thrown out of court - Fruit of the Poisonous Tree argument. However there are exceptions to the 4th that
a lot of individuals do not understand -
* - Consent
* - Search incident to arrest
* - Fresh pursuit
* - Field Doctrine
* - exigent circumstances
* - Inevitable discovery
There are also state rulings that can affect how these sections are interpreted. In my state of Missouri if an individual is fleeing from the police
in a motor vehicle, stops his car, opens the door and flees on foot, leaving the door to the vehicle open, a warrant to search / seize the vehicle is
not required as its considered abandoned property at that point.
All exceptions place the burden of justification on the officer.
The 5th amendment is only applicable when a person is A- In custody by law enforcement and B - is being asked guilt seeking questions. A person can
commit murder, be caught, charged, tried and sentenced to death all without ever having to read the individual their Miranda warnings. A 5th
amendment argument does not apply to motor vehicle laws in the same manner as non motor vehicle laws.
Exceptions to the 5th would be -
* - Spontaneous utterance - The suspect makes an unprovoked incriminating statement / comment.
The 6th amendment is what's referred to as Due Process and is pretty much the basis used when a ruling is challenged / appealed.
The 7th amendment has never been applied to the states by the US Supreme Court. With that said most if not all states have similar laws that allows a
person involved in a civil trial to request a jury.
The 9th amendment says what it is however just like anything else in a society that advances with technology must be reviewed to accommodate
technology / situations the founders never considered. The reason some amendments are "overly broad" (like the 1st and 2nd amendments) is to allow
for new concepts / technology / societal changes / religions immediate protection under the Constitution while allowing those new areas to be reviewed
/ challenged / restricted / accepted.
Hence the ability of the individual to petition the government for a redress of grievances.
The 10th amendment is a bitch when it comes to State Sovereignty because in addition to the 10th, the Constitution also contains the Commerce Clause
and the Supremacy Clause. Because of how the supreme court has ruled in those cases it does allow the federal government to "meddle" in state affairs.
A situation that I think the states should challenge more than they have.
While I agree completely with your view on the 2nd amendment being violated we need to look at it from different view points to understand opposing
As an example -
TSA security checkpoints - Since a "search" is not forced its not a 4th amendment violation. A person is free to leave the airport and find another
means to get to their destination.
Travel within a state / across state lines - Travel in this manner is constitutionally protected however the manner of transportation is not. You
don't want to get a driver's license you are not required to. However, you cant lawfully drive a vehicle on a public road. You don't want to go
through airport security you don't have to, however you wont be able to fly to where you want to go so you will need to find another method of
As for "Double Jeopardy" -
When a person is charged with a crime the judicial process has to reach a certain point before jeopardy is attached. If Jeopardy is attached and the
case is dismissed, charges cannot be refilled. However if new evidence come to light that was not available the first time around additional charges
The federal government and state government are separate sovereigns. Because of that its possible (based on certain criteria) to be charged at both
levels of government. I have seen this occur in tax evasion cases.
Don't get me wrong, I agree with what you are saying. I am pointing out some of the legalities involved that creates grey areas.
The US Constitution does not grant rights to the citizens. It places restrictions on the Federal Government. The 2nd amendment does not allow a person
to own a firearm. It prevents the federal government from taking those firearms.
I think what we are seeing now is the Federal verse State issue coming to a head. Even the states are growing fed up with federal overreach. Our
legal system is messy and is not intended to be efficient. Its designed to ensure justice is in fact justice, which is why the burden is placed on the
government to prove their cases.
The 2nd amendment arguments we have seen is in fact working as intended. The government (state / federal) are trying to ague why / how the 2nd
amendment should be applied. They are arguing that certain weapons should fall outside the scope of the 2nd amendment.
As annoying as it is, I take comfort knowing the government is fighting this in a legal setting rather than the methods the Crown used over 200 years
edit on 12-6-2014 by Xcathdra because: (no reason given)