SCOPE NY

The 2nd and 4th Amendments protect Each Other

03/30/2021 10:45 PM | Anonymous

The 2nd and 4th Amendments protect Each Other  by Tom Reynolds

SCOPE has written often that the gun grabbers are continually searching for new ways, both direct and indirect, to undermine the 2nd Amendment (2A).  These attempts force pro 2A defenders to become more knowledgeable about legal issues than most of us ever wanted to become. One such current anti-2A attempt tries to legalize the seizure of guns by invalidating the 4th Amendment (4A).  So, put on your legal caps!

The 4th Amendment secures “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures”.  (This helps protect firearms from seizure.) To further protect that right, 4A requires a search warrant based on probable cause and, in addition, 4A requires that the warrant narrowly define what is to be searched or seized. 

The Fourth Amendment and other rights are not an absolute.  4A is interpreted as permitting a warrantless seizure or home entry when that seizure or entry is reasonably necessary to protect health or safety.  Protection of health and safety are additional police duties beyond enforcing the law.  These situations can get complex as federal and states don’t always use the same standards, but the basic idea is easy to comprehend. For instance, the police do not need a search warrant if they reasonably believe someone is about to commit suicide inside a house or the police hear someone screaming for help from inside a house.  Like a house, a car is protected by 4A but police can search your car without a warrant in some instances: if police make a traffic stop and hear someone pounding from inside the trunk for example. 

Of course, it is the less obvious cases that open the door to abuse of 4A (or not).  What if a neighbor tells the police that they have not seen an elderly neighbor in several days and the police knock on the door and get no answer?  Can they go in without a warrant?  Is it reasonable for the police to believe there is a health or safety problem? 

Also, under a Supreme Court (SCOTUS) approved exception called “Community Caretaking”, the police can search an impounded car, under certain situations. That leads us to the government’s latest attack on 2A.  

Last week, SCOTUS heard a case called Caniglia v Strom.  Caniglia and his wife had a verbal argument and she spent the night in a motel.  The morning after the argument, Caniglia’s wife called police because she thought her husband might be suicidal.  Police came and interviewed Caniglia.  He denied being suicidal but the police insisted he undergo a psychiatric exam at a hospital, from which he was quickly discharged.  But while he was at the hospital, police searched his house, without permission, and seized two handguns and refused to return them, forcing Caniglia to file a civil rights lawsuit. 

The police defended their seizure of the handguns by extending the Community Caretaking exception for cars to Caniglia’s house (SCOTUS had previously only applied it to cars.)

As might be expected, the Biden Administration’s argued for expanding the government’s ability to intrude on our rights; it said that “the Fourth Amendment permits a warrantless seizure or home entry that is reasonably necessary to protect health or safety”  In addition, the Biden administration does not want to “limit the government to common law rules that applied to private citizens”.  (What a shock?  The government doesn’t want to live under the same rules as private citizens.)  Some justices seemed concerned about health and safety issues more than constitutional protections but we won’t know the result until they rule on the case, this summer.

Justice Sonia Sotomayor seemed to defend 4A rights and got to the real issue, “...there was no immediate danger to the person threatening suicide and no immediate danger to the wife because the suicide person was removed to a hospital.” Nevertheless, police “decided on their own to go in and seize the gun.” Sotomayor also wondered if the officers could “have gone into the house and taken not just the gun but any bat, knife, anything else that in their judgment this man could have used to commit suicide?” (This is important to note.  Suicides don’t use only a gun, but the police seized only guns.  Doesn’t that seem to show that the motive was a prejudice against guns as opposed to preventing a suicide?) 

Amicus briefs echoed the concern about the government’s hidden motive being gun seizure when they said, “Expansion of the ‘community caretaking’ exception into the home will be used by police in jurisdictions with onerous or constitutionally-questionable firearm restrictions to turn every call to a house into a search for guns under the pretext of ‘helping’ those present”.

There were other legal and common law issues that were argued before SCOTUS which may influence the decision.  But we have already seen a continued erosion of our rights and we will be entering new and more dangerous territory if SCOTUS gives the government another excuse to dismantle 2A.  The 4th Amendment helps protect the 2nd Amendment, and vice versa.

A 2nd Amendment Defense Organization, defending the rights of New York State gun owners to keep and bear arms!

PO Box 165
East Aurora, NY 14052

SCOPE is a 501(c)4 non-profit organization.

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