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Do No Harm,
Do Know Harm
posted Hide Post
quote:
Originally posted by ArtieS:
quote:
I won't argue the legality of DUI/DWI checkpoints. Here's why...

Which is just a way of saying "I will voluntarily give up my 4th Amendment rights, because it MAY prevent bad accidents."

I'm not trying to be a dick, because I get the emotion, and I am sure that the accident was terrifying, the injury extremely painful, and the recovery, as you say "a bitch", but this is essentially the argument of the gun control folks.

It's "I'm willing to give up my 2nd Amendment rights because giving them up MAY prevent a bad outcome."

We gun folk frequently argue that "shall not be infringed" is the operative clause of the 2nd Amendment, and we are puzzled that the "antis" can't seem to understand this simple truth.

The 4th Amendment reads:

quote:
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.


Those of us arguing that the court has it wrong in the DUI stop matter are asserting the same simple truth. What part of the bolded bit above, don't people understand? Or more accurately, why are they willing to allow exceptions to the warrant and probable cause requirements as to the sanctity of to their persons, houses, papers and effects. It is inconsistent with a belief that the Constitution means what it says for these gaping exceptions to exist.

Note also that the DUI exception (and the immigration exception and the information exception) are determinations that owing to public policy, the severity of the issue, and a lack of other means of enforcing policy, these searches are effectively exception to the ENTIRE 4th Amendment, not simply an exception to the warrant requirement as are the exigency exception and the search incident to arrest exception.

Remember finally that the Constitution does not grant us rights. These are natural rights with which we are born as free beings. The Constitution, in this context is a document of limitation and not of grant. It limits the ability of the government to affect us as citizens. As a conservative and a constitutionalist, I argue that we should never accept exceptions to the government's power over us, particularly when an instrument of that government, namely the courts, argues that the exception is for an important public policy, and makes government's job easier. "For an important public policy" and "makes government's job easier" is one hell of a gaping exception to our rights as citizens and is the ultimate slippery slope to a meaningless Constitution.

We either have our rights secured by the constitution or we do not. When we start admitting exceptions to them, we admit exceptions to all of them. We should never give up, notwithstanding court decisions, and always argue for, and fight for the rights we are born with and which are guaranteed to us.


There is no warrant required by the 4th Amendment to search. Searches simply cannot be unreasonable .

The probable cause for a warrant is in there because governors/judicial officials under the colonial British government would and could order search warrants just for shits and giggles to screw with their 'subjects'. But probable cause is not specifically required to search, per the 4th Amendment. Courts have limited most searches to that level of proof, however, unless they have decided that a search that was not supported by PC was otherwise 'reasonable'.

I am no fan of check points, and tend to agree that they shouldn't be legal, but if we are going to make arguments, they at least need to be factually correct.




Knowing what one is talking about is widely admired but not strictly required here.

Although sometimes distracting, there is often a certain entertainment value to this easy standard.
-JALLEN

"All I need is a WAR ON DRUGS reference and I got myself a police thread BINGO." -jljones
 
Posts: 11446 | Location: NC | Registered: August 16, 2005Reply With QuoteReport This Post
Age Quod Agis
Picture of ArtieS
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quote:
There is no warrant required by the 4th Amendment to search. Searches simply cannot be unreasonable .

You are absolutely right, and I was hoping someone would notice that. However, the court didn't want to say that simply randomly stopping cars was "reasonable" and has held in other cases that randomized stops to generally deter crime are specifically not "reasonable" so it's still an exception to the 4th Amendment, not a reasonable search under the 4th Amendment.

This is, admittedly a little bit of "how many angels can dance on the head of a pin" stuff, but it is how the court thinks, and since they are wary of setting broader precedent, are careful to do things like jehzsa notes; first find that the intrusion is "mimimal" as opposed to reasonable, find that there is an important public policy at stake (DUI, not general law enforcement) and that there are no other effective ways of achieving an important state priority (usually framed by the court as "narrowly tailored to achieve an important state interest), that therefore, there is a exception to the 4th Amendment, inside a set of judicially defined boundaries. That doesn't make a stop reasonable, it makes it acceptable only under these circumstances and for these purposes.

"Reasonable" is good policing. For example, cop stops someone who is standing on the sidewalk and looking around and asks "are you lost?" as opposed to "what are you doing in this neighborhood". One is reasonable; the other is not.



"I vowed to myself to fight against evil more completely and more wholeheartedly than I ever did before. . . . That’s the only way to pay back part of that vast debt, to live up to and try to fulfill that tremendous obligation."

Alfred Hornik, Sunday, December 2, 1945 to his family, on his continuing duty to others for surviving WW II.
 
Posts: 12748 | Location: Central Florida | Registered: November 02, 2008Reply With QuoteReport This Post
Age Quod Agis
Picture of ArtieS
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Really enjoying this discussion, but have to go out for a few hours.

Thanks all for the well considered remarks, comments and arguments.

A



"I vowed to myself to fight against evil more completely and more wholeheartedly than I ever did before. . . . That’s the only way to pay back part of that vast debt, to live up to and try to fulfill that tremendous obligation."

Alfred Hornik, Sunday, December 2, 1945 to his family, on his continuing duty to others for surviving WW II.
 
Posts: 12748 | Location: Central Florida | Registered: November 02, 2008Reply With QuoteReport This Post
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Picture of fatmanspencer
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I would say both Artie. I'm 6'2 and 400lbs. I look like I eat NFL linemen for snacks. Depending on my tone, both could be threatening. In a bad part of town that would be reasonable. If I stop Soccermom with her poodle and the only difference is its not a bad part of town, I'm a dick.

Reasonable depends on who and what is happening. I think that is why most DUI's are at night. Can you have them during the day? Sure. But most checkpoints aren't during the day.


Used guns deserve a home too
 
Posts: 783 | Location: North Ga | Registered: August 06, 2016Reply With QuoteReport This Post
I'm Fine
Picture of SBrooks
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I would argue even the "notification" part is b.s. nowdays. Our newspaper recently went up to $1.50 and I was told this week that it was going to $2.00 a paper. Very few people subscribe anymore (hence the price raising - to keep income the same).

As far as radio - most people seem to listen to satelite or CD or digital stuff now.

As for TV - the only time I EVER watch a local news show is when there is a chance of a snow storm. And I rarely watch local TV otherwise either. I record the shows I like on DVR and watch them forwarding through the commercials and other tripe.

So - unless they text me or call me; I'm not ever going to be "notified" about an upcoming event.


------------------
SBrooks
 
Posts: 3791 | Location: East Tennessee | Registered: August 21, 2006Reply With QuoteReport This Post
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