Regulating The Fourth Amendment Out of Existence

The Fourth Amendment, which protects Americans from unreasonable searches and seizures and demands that judicial officers issuing search warrants do so only on a showing of probable cause, is an important guarantee of our civil liberties, designed to protect personal privacy – especially in the home – from random governmental snooping. The Fourth Amendment tends to get a lot of bad press because it is usually enforced only by the Exclusionary Rule, which keeps the government from using illegally obtained evidence; by definition, the Exclusionary Rule protects only the rights of people with incriminating evidence to hide. It’s also subject to various common-sense exceptions to allow law enforcement to operate on public streets when a warrant is impractical or public safety is imminently threatened. But whatever the misuses of the Exclusionary Rule, the protection against unreasonable searches and seizures remains a core Constitutional right.
And like all such rights, it is bound to come under more pressure the larger the regulatory state grows and the further it sinks its tentacles into every avenue of our existence. The growth of the regulatory state is a much greater threat to rights like these than are ordinary law enforcement or even the national security state, both of which are much more narrowly focused in their goals and thus unlikely to expend much effort harassing ordinary citizens.
A clear example of how the growth of the regulatory state threatens the rights protected by the Fourth Amendment was pointed out this morning by Justice Alito, in an opinion joined by Chief Justice Roberts, Justice Scalia and Justice Thomas concurring in the denial of a certiorari petition (scroll to the last two pages of the pdf):

Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” …The thinking is that, otherthings being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” …And where a business operates in an industry with a “long tradition of close government supervision” – liquor dealers and pawnbrokers are classic examples – the expectation of privacy becomes “particularly attenuated.”…
In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s backyard…. The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute…According to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatory arm” of the State “just as much” as if the yard had been involved in a “regulated industry.”
This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirement.

(Emphasis added; citations omitted).
Justice Alito went on to note that the Court was properly declining to take the case for procedural reasons: the decision came from an intermediate appellate court, not a state Supreme Court, and thus didn’t meet the Court’s usual criteria for resolving disputed issues of federal law. But it is noteworthy nonetheless that the Court’s four conservative Justices felt it important to remind lower courts that the creeping expansion of regulation up to the very doorstep of private homes – the heartland of the Fourth Amendment’s protections – should not be used as an excuse to treat private property’s privacy as yet another thing subject to bureaucratic whim.

16 thoughts on “Regulating The Fourth Amendment Out of Existence”

  1. At the risk of being a fishmonger, is it really so ridiculous to think a judge would find a person who is receiving ObamaCare to be involved in a “closely regulated industry” and thus continually outside the protection of the 4th Amendment? I mean, hey, if it’s “commerce”, why can’t it be “industry”?

  2. Considering the courts have already trashed the 5th Amendment (just ask Martha Stewart her opinion), and you right wingnuts have a fairly strange view of the second amendment (the states phased out militias at the end of the 19th century), and that the government does have a compelling interest to keep the environment clean (I happen to think it’s their job to ensure we have potable water and a disease free food supply, call me silly that way), why worry about this one?
    Scalia and Thomas ruled last year that Louisiana was allowed to execute someone who was convicted on a racially tainted jury. Alito and Roberts smelled a tuna when they saw it. So please spare me the sanctity here.

  3. I’m a conservative-libertarian criminal defense lawyer (proud to be in the trenches everyday) and I applaud ANYTHING that pushes back against unreasonable harassment of citizens.
    That said, Daryl, what did the Founders consider to be the militia? It was pretty much all able-bodied males (and nowadays that would extend to females, who statistically benefit greatly from gun rights).
    Anyway, I take great pride in the fact that juries seem more cognizant of what’s right than any other part of the machine.
    Regardless, how about stowing away the pissy attitude and acknowledging something positive when it happens?

  4. If you take away a liberal’s “pissy attitude”, they really don’t have anything left! 😉

  5. Trench, the militias were in fact, at first colonial, then state militias. And they were indeed called things like the South Carolina Militia and such. Many were disbanded by 1890. And BTW, the second amendment, which does seem to be the one you conservatives are more concerned about, doesn’t say GUNS, it says ARMS. So if you want to know what the Founders thought, it was likely sabers and breechloaders. You think James Madison would have said, “…militia, the right to bear Uzis, weaponized anthrax and tactical nukes shall not be infringed?”

  6. So everyone has the right to possess arms, as defined by what? Good ol’ Scalia’s original intent? Fine, we all have the right to a breech loading musket and hunting knife.
    Or do we modernize it, and let everyone be allowed to have a portable, personal armament. Which includes hand grenades, and fully automatic weapons. See my point? We have the right to free speech, but not to yell fire in a crowded theater. So there are set limits, but what is the limit then? According to the NRA, and far too many right wingnuts we have NO limits. Yes to 1st and 5th amendment limits, but none to 2nd amendment ones. And Crank, you are worried about the 4th all of a sudden. Only that one? And yes, I happen to think the left worries too much about other amendments and not the rest also. We in the middle have far more common sense. You all just have a convenient lack of memory as the case needs it.

  7. Daryl, first, muskets aren’t breechloaded, they are muzzle-loaded. There were few breechloaded long-guns in the late 18th century, they didn’t become practical and widely accepted until the 19th century.
    Second, your convenient inability to read the rest of the Constitution hampers your original intent ‘analysis’ – eg, read Article 1, Section 8, clause 15 which gives Congress the power to call up the Militia to enforce laws, put down rebellions, and stop invasions. It’s probably a safe bet that the Founders would not dictate that future invasions be repelled by ancient weapons. Also have a look at the following clause 16 which gives Congress power to organize, equip and discipline the Militia when it is used by the federal government. Now consider that the 2nd amendment (as part of the Bill of Rights) was written afterwards to clarify that the federal power did not extend to the Peoples’ ability to keep and bear arms themselves (and, for the record, ‘well regulated’ means well equipped and skilled, not micromanaged).
    Furthermore, at the time of the drafting, ‘Arms’ meant man-portable and fired weapons as opposed to ‘Ordnance’ which meant cannon and explosives (and ‘explosives’ does not include gunpowder, which is a propellant, not an explosive – propellants burn, they do not explode). So it’s pretty clear that the 2nd amendment does not cover grenades, weaponized anthrax and nukes. Btw, artillary was also referred to as ‘guns’ so your argument that they should have written ‘guns’ into the 2nd Am. would have meant that the People can have cannons.
    So given your lack of credibility on this subject, I’ll need to see an NRA position paper arguing for the right to own a tactical nuke (not just a statement by a member but an official platform). I’ve seen them argue over the definition of ‘assault weapons’ etc, but this seems to be where the argument should be, as formerly crew-serviced weapons converge with man-portable arms.
    Your laments about conservatives only caring about the 2nd Am. misses the mark – it only seems that way because it appears that only conservatives do care about it. Conservatives are fully engaged in 1st and 5th Am. issues – see, eg, the fights against liberal efforts to reinstall the Fairness Doctrine and the encroachment on, and takings of, personal property rights.
    One last thing – if you don’t believe in or understand what an ‘original intent analysis’ is, don’t attempt one. It becomes nothing more than a strawman argument and doesn’t establish your bona fides as having ‘common sense’. It just comes across as pissy (thanks Trench!).

  8. I do so love lawyers and the true and deep seated belief that you are the final arbiters of everything; that you have the deep and secret knowledge that is the bastion of civilization (actually those ramparts are manned by farmers and plumbers).
    So arms means hand carried guns. Does that exclude swords? Does that include an uzi? A gun with a 30 plus bullet magazine? Teflon coated bullets that is meant only to kill police? You see there are laws, and there is common sense. Lawyers (see Ambrose Bierce’s definition) see the law, probably the dollar signs behind them, and not the people behind them.
    And there is the legal argument of what original intent means, or, hmmm, how about the phrase itself: you don’t need a legal brief to really define it as, “What was the basic idea behind what Madison wrote?” You want to take it further? Fine. The Framers original intent was to establish a society where government authority was limited. Not non existent. They had some basic ideas, and some are totally twisted and corrupted by conservatives. The big ones these days: 1. We are a Christian (Protestant) Nation, but we let the others in and do what they want. Nope, because the big kahunas were really huge non believers. Patrick Henry died in England, because his public atheism caused him to be hounded out of the country. I could go on but why bother. And you still haven’t answered the uzi question, or the 30 clip magazine one.

  9. I’ve been pushing for gun sales at all theater showings of “inside Job”, yet can’t find one conservative who will join me.

  10. Really, Daryl? Are you really whining that I STILL have not responded to your question about the ’30 round clip’? Take a look at the thread – maybe the reason I ‘didn’t respond’ to it is because you only raised it in your very last post. Have you been high-fiving yourself and strutting in front of your monitor thinking you’ve scored because you raised a question at the beginning of a post that I STILL hadn’t responded to by the time you had finished typing that very same post? That, sir, is brilliant. Or scary.
    As for the rest, try re-reading my post and stay away from the strawman arguments. I can only write the thing, but I can’t comprehend it for you.

  11. tanstaaf, I don’t strut, nor do I whine.
    Interesting though, that you took the time to answer me, by hurling all sorts of whiny insults of your own, and yet still didn’t respond about the ’30 clip round. Arguing by tossing insults and not responding can get some smiles from other wingnuts, and maybe some lawyers (please don’t tell me you call yourself an attorney-the usage is then incorrect), but gets you nowhere otherwise.
    Does it really bother you so much that people see through your haze of words to get the fact there is nothing there but pompous bullshit? Go on, keep pounding the table.

  12. Daryl, under your rather peculiar definition of “original intent”, the Internet is not protected by the First Amendment since it is not verbal speech and does not involve a printing press. Therefore, you have no right to say anything that you have said here. I will be reporting you to the proper authorities.

  13. Dave. I happen to know under the Patriot Act (they have eyes and ears everywhere) you have REMOVED YOUR MATTRESS TAGS. The Mattress Police have already been contacted. Have a nice day.

  14. Daryl, I’ll take your word for it – you don’t strut. You’re not a strutter.
    So you are in favor of 29-round clips?

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