TL-DR: Never give the fedguv an inch.
In defense of the NRA and their rigid position on right to keep and bear arms.
The NRA recently joined with some liberal organizations to support a ban on the 'bump stock' accessory. A stand on which I am vehemently against. We all know the operative statement in the 2nd Amendment; 'shall not be infringed' and how the interpretation of that statement has stood the test of time and liberals trying to diminish, and restrict that natural right over the years.
Allow me now to introduce the 1968 supreme court decision in Terry v Ohio. The end of the Warran court had seen the Republicans lose power as the Democrats took over in 1965-6. There was an air of 'civil rights' flowing at the time, and the court was ready to move into the debate with it's cert of the Terry v Ohio case. Without going into details, the police viewed a man as 'suspicious' behavior, and on that basis and no other the police stopped, searched, and seized pistols from Terry and another man they considered an accomplice to a crime. However, there was no crime in progress when Terry was searched. He was convicted of carrying a weapon concealed, and he appealed. The state of OH court did review his case and found for the state(shocking, right?), so he appealed to the SCOTUS.
The court took the case, so that they may investigate the limits and authorities of the 4th amendment protection against "unreasonable" search and seizure. The central questions were - 1. Was Terry entitled to complete privacy and freedom of movement and freedom from search? - 2. Once determined that a seizure(of person, so that you cannot walk or run away) is lawful, is a search reasonable?
The answer comes from a careful wording of the investigative nature of policing. Here is the wording from the court: "In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." I will highlight the two operant piece of the puzzle here: Specific and articulable facts (this will become very important later) must be present, and if those specific and articulable facts were presented to a court for a warrant, that in the totality of the facts, a court would have typically issued an invasive warrant to search the person(Terry).
I consider this a rather torturous and deprecating reasoning. First and obvious, the cop on the beat has only a rudimentary understanding of the rights provided under the constitution as it applies to citizens in comparison to even the greenest, and most junior of judges, who at the very least have studied sufficient law to pass a state bar exam, and are members in good standing of the bar, as well as servants of the constitution. The cop on the beat MAY be a 30 year veteran of the streets, but he may also be a '90 day wonder', fresh out of cop training and who has just been imbued by the SCOTUS with the power to make major civil rights decisions as an ad-hoc 'judge, jury and executioner'[sic]
Second, the cop on the beat is incentivized, and biased toward finding of enforcement arrests, and will in all cases except maybe Andy of Mayberry, be seen and judged by his contemporaries and peers on his number of arrests, and keeping the peace, rather than protection of the rights of citizens.
Now we have a 'reasonable' search in the eyes of the cop, and not the court. At this point, what can be searched, and how invasive can the search be conducted? Warren specifically found comfort in the wording of the state of OH ruling and came up with this: "The sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." It must be made clear, the search is for the protection of the officer, and the public around him/her, and is NOT an authority to search for evidentiary purposes, and as will be important later, for contraband, or other papers or personal effects.
Fast Forward to all the cases spawned by the Terry v OH. Further advancing the lawfullness of warrantless searches. Most all of which move the line ever away from individual liberty and privacy, and toward a controlled and monitored society where any cop, at any time, anywhere, for any reason gets to point to a/the citizen(s) and state; "He/she/they are acting suspiciously, and I can articulate that to a specific position such that I will now stop and frisk them under the authority of the Terry v OH(and subsequent) cases."
Bam - we have slipped the slope of the 4th amendment, due to the carelessness of the SCOTUS in violating the standards on which the privacy amendment stands. In essence, 'reasonable' means whatever the cop on the beat says it means, and judicial review be damned. For the student of judicial expansion see the following cases: Michigan v long and Hiibel v 6th district court of NV. In a final massive contraction of the 4th amendment protection, we look no further than Heien v NC - which held that, notwithstanding that a stop by LEO has no basis in law, such that they had no reason at all to pull a car over, or stop someone on the street that they mistakenly believed were committing a crime, the search and seizure under Terry stop any evidence CAN be used in a court.
That's correct. If a cop thinks that you've committed a crime, even when they are wrong, and fruit from the mistaken tree is found, that mistake by the LEO and subsequent stop, search, and seizure - the fruit from that mistake is evidentiary valid. Finally, the 4th amendment as it pertains to the citizen in public exists no longer. Any cop, at any time, in any setting can conveniently argue that they 'thought' you were breaking the law, perform the search, and the evidence obtained can and will be used against you. Note that in the case of Heien v NC, the evidence found during the Terry stop had nothing to do with the safety of the officer, or nearby public, but was in fact - cocaine. Unless the cop snorted massive amounts of it, there was never any danger to the LEO or gen public, which was the limitation of the Warren statement back in 68 - which has long since been swept away.
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FF to April 2017. Terry was adjudicated about 50 years ago, and the slippery slope has taken hold, such that we are now hurtling along at breakneck speed to a Nazi Germany circa 1936. Of course, one of the literal cases after Terry now REQUIRES the citizen to identify themselves, just as it were in Berlin, 1932 - "halten zie. Ve vill haf your paperen bitte".
Go here, and read this:
https://www.washingtonpost.com/news/morning-mix/wp/2017/10/06/georgia-sheriff-deputies-indicted-after-body-searches-of-900-high-school-students/Finally, maybe, potentially we have reached a case where the Terry stop has expanded to such an extent that the police are now facing the bar of justice. But - really? Are they? To review, there were 40 LEO present and active in restricting the movement of people(the school was on 'lock-down', no in and no out). They were held incommunicado by theft of personal property(all phones). And many were minors, who the court has particularly held in the past to protect with greater care than the adult public. Two arrests, one facing misdemeanor charges? It's quite possible that none of them will serve a day in jail. Whereas if you or I, or any other member of the public had performed this, we would be facing decades in prison, and the prosecution would almost surely gain a conviction in the eyes of any competent jury.
1st amendment? 4th, 5th, 6th? Nonsense, the only thing at some point the 'crats will understand is a few hundred well armed PARENTS, storming the school, where their kids are held hostage. Where were the school authorities, in whose charge the kids was held? Why aren't they being prosecuted for failure to protect the minors? If they are still employed by the district, what message does that send to other schools? Hands off? Why do you think the cops took everyone's communication device away?
I await our prog to step up with the reasoning why we should expand the power of the state, and withdraw to even greater extent the inalienable rights of the public. Now you know why I NEED a bump-stock. If I had to rely on single shot, I might not get them all.
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