4 ms·

It's the 4th Amendment. Justice Douglas in Griswold v. Connecticut: > "Would we allow the police to search the sacred precincts of marital bedrooms for telltal

It's the 4th Amendment. Justice Douglas in Griswold v. Connecticut: > "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." If your counterargument is "the word privacy isn't in the Constitution", my rejoinder is "neither is 'assault rifle'".

willcipriano 4y ago
Why is this right to privacy exclusive to activities around reproduction? Where else do you enjoy this implied right of privacy? Why not quote the direct text that provides this right to privacy if it's so clear and obvious?
- fzeroracer 4y ago
  It's also part of the 9th amendment. The point is that the courts ruled that people have an implicit right to privacy within their own home. That's literally why it exists, because it was to directly counter people who take the constitution at face value as being the ONLY rights it gives.
  - pkulak 4y ago
    But I can be prohibited from doing all sorts of things in my own home.
    - camgunz 4y ago
      The Court's job is to balance your right to privacy with the state's interests. Let's say you're running a meth lab: meth is very bad for people, it's hard to cook it safely and you might grievously harm others in your house or those nearby. Therefore, if law enforcement has probable cause to enter your home (e.g. they have an informant who's provided evidence), they can obtain a warrant for the express purpose of ascertaining whether or not you have a meth lab. If you don't have a meth lab but you are smoking weed (in a State where that's not legal), they can't arrest you, because that's not what the warrant is for. Hooray 4th Amendment!
      - pkulak 4y ago
        Sure, but I said "prohibited", not searched. Even in your example, I'm federally prohibited from smoking weed in my home.
        camgunz 4y ago
        The War on Drugs is uniquely stupid, though there is an argument that the state has a compelling interest in making sure its citizens aren't all addicted to drugs. The legal theory on which the right to privacy mostly stands is called "substantive due process", which more or less says the state can't abridge your liberties without trying pretty hard not to. So liberties here can be contraception use, or drug use. Indeed United States v. Oakland Cannabis Buyers' Cooperative had the coop arguing that the Controlled Substances Act "violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments". This has generally (and maybe oddly) been at odds with the Commerce Clause, pretty well typified by Wickard v. Filburn where the Court held that even though Filburn was only growing wheat on his own land for his own use, the US could impose a quota on him because it was regulating the price of wheat federally. This extends interpretation of the Commerce Clause from mere interstate commerce to production and consumption. Here's a good quote: "Hence, marketing quotas not only embrace all that may be sold without penalty, but also what may be consumed on the premises." I'm not an expert, but I believe this is the constitutional leg on which the CSA stands: the gov't can regulate what you consume. I'm personally sympathetic to the substantive due process challenge argument, but probably still too young to be on the Supreme Court. Call your senator! :)
- camgunz 4y ago
  It's not, see Lawrence v. Texas (same-sex relationships) and Obergefell v. Hodges (same-sex marriages). You should honestly just read Griswold [0]. It is a strikingly conservative opinion if, for example, you think privacy is also about "the government has to show a compelling governmental interest to regulate firearms". Here are some gems: "The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights." "In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the 'freedom to associate and privacy in one's associations,' noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid 'as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association.' Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion." "The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516—522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'" "In presenting the proposed Amendment, Madison said: 'It has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow, by implication, that those rights which were not singled out were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system, but I conceive that it may be guarded against. I have attempted it, as gentlemen may see by turning to the Page 381 U. S. 490 last clause of the fourth resolution [the Ninth Amendment]." "Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact that 'no language is so copious as to supply words and phrases for every complex idea.' The Federalist, No. 37 (Cooke ed.1961) at 236." I could go on. I urge you to read it. [0]: https://supreme.justia.com/cases/federal/us/381/479/ https://supreme.justia.com/cases/federal/us/381/479/
WillPostForFood 4y ago
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. Where do you see abortion rights there?
- camgunz 4y ago
  Like all rights, I see the Constitution forcing a balancing of state interest vs. individual liberty here. No right is absolute, and the Constitution outlines some examples of basic rights and their limits. 4A is pretty good at this. People have a right against unreasonable searches and seizures without probable cause. While the state's interest is implicit here, it's obviously law enforcement. This balances the state's interest in enforcing laws with the individual right against unreasonable searches and seizures. In Griswold, the Court couldn't justify the state's interest in enforcing anti-contraception laws given its necessary invasion of privacy. Other concurrences found the right to privacy in other Amendments (the 9th and the 14th), but regardless of where you look, all of these Amendments lay out an individual liberty vs. a state interest. Courts are faced with the unenviable task of taking a > 200 year old document and applying its precepts to a world that would bewilder its authors. Different philosophies try to do this in different ways; Scalia famously pushed originalism, but even he essentially writes out slavery, Native American disenfranchisement, and the chattel status of women in the 18th century, and other originalists are even less consistent. Other justices look for the core liberties ineffably and imperfectly silhouetted by the Constitution--a document defining the most free nation ever yet made--in order to keep the flame of liberty burning. What originalists miss about the Constitution was that it was an extremely radical document. If we are to be consistent with the spirit of the US at its founding, we have to preserve that dedication to liberty and human rights. Should what was once the beacon of liberty be tethered to what liberty meant 250 years ago? Is that a fitting destiny? Would Madison or Jefferson be proud of such an outcome?
  - onething 4y ago
    >...Scalia famously pushed originalism, but even he essentially writes out slavery, Native American disenfranchisement, and the chattel status of women in the 18th century, and other originalists are even less consistent. I am no legal scholar by any means, but wasn't Scalia's argument that if the people don't like the social contract (i.e. the constitution), the people should change it via amendments vs having judges change it? I think he would say he did not "essentially writes out slavery..." but rather the 13th, the 19th amendments etc. wrote those out of the constitution.
treis 4y ago
That's the basis of many of these laws and unfortunately it's obviously illogical. Even if we accept that as an unreasonable search that makes the search unconstitutional. Not the law.
vinyl7 4y ago
'assault rifle' is an abstract term that doesn't have any meaning.
- baseballdork 4y ago
  How about "semi-automatic" then?
  - vinyl7 4y ago
    The amendment uses the word "arms" which includes every time of fire arm. It doesn't say "keep and bear muskets" just as much as it doesn't say "keep and bear semi-automatics".
    - camgunz 4y ago
      This line of reasoning has to explain how we can regulate things like: - Javelin missile launchers - aerosolized bioagents - jet fighters - land mines but not sniper rifles. Again, if you're going to extrapolate what "arms" meant in the late 18th century, you have some choices: - personal arms of the day (muskets, cannons, bayonets) - personal arms of the current day (missile launchers [0]) - weirdo arms of the current day (drones, gases and bioagents, dirty bombs, white phosphorous) Originalism isn't helpful to us here, it turns out. [0]: https://www.militaryfactory.com/smallarms/rocket-launchers.php https://www.militaryfactory.com/smallarms/rocket-launchers.p...
    - ClumsyPilot 4y ago
      > The amendment uses the word "arms" which includes every time of fire arm. Can you buy Carl Gustaf 8.4 cm recoilless rifle? M114 155 mm howitzer? Mortars? They are all firearms.
    - multjoy 4y ago
      I mean if you're going to be pedantic, what about "well regulated militia"?
      - 4y ago
xdennis 4y ago
> assault rifle They've been banned since 1986, since "assault rifles" are full auto. Presumably you mean "assault weapon" which is fuzzy media-talk for scary weapon.

willcipriano 4y ago

Why is this right to privacy exclusive to activities around reproduction? Where else do you enjoy this implied right of privacy? Why not quote the direct text that provides this right to privacy if it's so clear and obvious?

fzeroracer 4y ago
It's also part of the 9th amendment. The point is that the courts ruled that people have an implicit right to privacy within their own home. That's literally why it exists, because it was to directly counter people who take the constitution at face value as being the ONLY rights it gives.
- pkulak 4y ago
  But I can be prohibited from doing all sorts of things in my own home.
  - camgunz 4y ago
    The Court's job is to balance your right to privacy with the state's interests. Let's say you're running a meth lab: meth is very bad for people, it's hard to cook it safely and you might grievously harm others in your house or those nearby. Therefore, if law enforcement has probable cause to enter your home (e.g. they have an informant who's provided evidence), they can obtain a warrant for the express purpose of ascertaining whether or not you have a meth lab. If you don't have a meth lab but you are smoking weed (in a State where that's not legal), they can't arrest you, because that's not what the warrant is for. Hooray 4th Amendment!
    - pkulak 4y ago
      Sure, but I said "prohibited", not searched. Even in your example, I'm federally prohibited from smoking weed in my home.
      - camgunz 4y ago
        The War on Drugs is uniquely stupid, though there is an argument that the state has a compelling interest in making sure its citizens aren't all addicted to drugs. The legal theory on which the right to privacy mostly stands is called "substantive due process", which more or less says the state can't abridge your liberties without trying pretty hard not to. So liberties here can be contraception use, or drug use. Indeed United States v. Oakland Cannabis Buyers' Cooperative had the coop arguing that the Controlled Substances Act "violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments". This has generally (and maybe oddly) been at odds with the Commerce Clause, pretty well typified by Wickard v. Filburn where the Court held that even though Filburn was only growing wheat on his own land for his own use, the US could impose a quota on him because it was regulating the price of wheat federally. This extends interpretation of the Commerce Clause from mere interstate commerce to production and consumption. Here's a good quote: "Hence, marketing quotas not only embrace all that may be sold without penalty, but also what may be consumed on the premises." I'm not an expert, but I believe this is the constitutional leg on which the CSA stands: the gov't can regulate what you consume. I'm personally sympathetic to the substantive due process challenge argument, but probably still too young to be on the Supreme Court. Call your senator! :)
camgunz 4y ago
It's not, see Lawrence v. Texas (same-sex relationships) and Obergefell v. Hodges (same-sex marriages). You should honestly just read Griswold [0]. It is a strikingly conservative opinion if, for example, you think privacy is also about "the government has to show a compelling governmental interest to regulate firearms". Here are some gems: "The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights." "In NAACP v. Alabama, 357 U. S. 449, 357 U. S. 462 we protected the 'freedom to associate and privacy in one's associations,' noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid 'as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association.' Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion." "The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516—522, 81 S.Ct. 1752, 6 L.Ed.2d 989 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'" "In presenting the proposed Amendment, Madison said: 'It has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow, by implication, that those rights which were not singled out were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system, but I conceive that it may be guarded against. I have attempted it, as gentlemen may see by turning to the Page 381 U. S. 490 last clause of the fourth resolution [the Ninth Amendment]." "Madison himself had previously pointed out the dangers of inaccuracy resulting from the fact that 'no language is so copious as to supply words and phrases for every complex idea.' The Federalist, No. 37 (Cooke ed.1961) at 236." I could go on. I urge you to read it. [0]: https://supreme.justia.com/cases/federal/us/381/479/ https://supreme.justia.com/cases/federal/us/381/479/

WillPostForFood 4y ago

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. Where do you see abortion rights there?

camgunz 4y ago
Like all rights, I see the Constitution forcing a balancing of state interest vs. individual liberty here. No right is absolute, and the Constitution outlines some examples of basic rights and their limits. 4A is pretty good at this. People have a right against unreasonable searches and seizures without probable cause. While the state's interest is implicit here, it's obviously law enforcement. This balances the state's interest in enforcing laws with the individual right against unreasonable searches and seizures. In Griswold, the Court couldn't justify the state's interest in enforcing anti-contraception laws given its necessary invasion of privacy. Other concurrences found the right to privacy in other Amendments (the 9th and the 14th), but regardless of where you look, all of these Amendments lay out an individual liberty vs. a state interest. Courts are faced with the unenviable task of taking a > 200 year old document and applying its precepts to a world that would bewilder its authors. Different philosophies try to do this in different ways; Scalia famously pushed originalism, but even he essentially writes out slavery, Native American disenfranchisement, and the chattel status of women in the 18th century, and other originalists are even less consistent. Other justices look for the core liberties ineffably and imperfectly silhouetted by the Constitution--a document defining the most free nation ever yet made--in order to keep the flame of liberty burning. What originalists miss about the Constitution was that it was an extremely radical document. If we are to be consistent with the spirit of the US at its founding, we have to preserve that dedication to liberty and human rights. Should what was once the beacon of liberty be tethered to what liberty meant 250 years ago? Is that a fitting destiny? Would Madison or Jefferson be proud of such an outcome?
- onething 4y ago
  >...Scalia famously pushed originalism, but even he essentially writes out slavery, Native American disenfranchisement, and the chattel status of women in the 18th century, and other originalists are even less consistent. I am no legal scholar by any means, but wasn't Scalia's argument that if the people don't like the social contract (i.e. the constitution), the people should change it via amendments vs having judges change it? I think he would say he did not "essentially writes out slavery..." but rather the 13th, the 19th amendments etc. wrote those out of the constitution.

treis 4y ago

That's the basis of many of these laws and unfortunately it's obviously illogical. Even if we accept that as an unreasonable search that makes the search unconstitutional. Not the law.

vinyl7 4y ago

'assault rifle' is an abstract term that doesn't have any meaning.

baseballdork 4y ago
How about "semi-automatic" then?
- vinyl7 4y ago
  The amendment uses the word "arms" which includes every time of fire arm. It doesn't say "keep and bear muskets" just as much as it doesn't say "keep and bear semi-automatics".
  - camgunz 4y ago
    This line of reasoning has to explain how we can regulate things like: - Javelin missile launchers - aerosolized bioagents - jet fighters - land mines but not sniper rifles. Again, if you're going to extrapolate what "arms" meant in the late 18th century, you have some choices: - personal arms of the day (muskets, cannons, bayonets) - personal arms of the current day (missile launchers [0]) - weirdo arms of the current day (drones, gases and bioagents, dirty bombs, white phosphorous) Originalism isn't helpful to us here, it turns out. [0]: https://www.militaryfactory.com/smallarms/rocket-launchers.php https://www.militaryfactory.com/smallarms/rocket-launchers.p...
  - ClumsyPilot 4y ago
    > The amendment uses the word "arms" which includes every time of fire arm. Can you buy Carl Gustaf 8.4 cm recoilless rifle? M114 155 mm howitzer? Mortars? They are all firearms.
  - multjoy 4y ago
    I mean if you're going to be pedantic, what about "well regulated militia"?
    - 4y ago

xdennis 4y ago

> assault rifle They've been banned since 1986, since "assault rifles" are full auto. Presumably you mean "assault weapon" which is fuzzy media-talk for scary weapon.