If the 2nd Amendment is interpreted literally, why not the 4th?

There was a really nice essay by Cenk Uygar in the Huffington Post this morning. You can read it here.

I sent him this comment:

Cenk's argument is crystal clear and 100% valid...and not likely to change anything with the Conservative Republicans. Too bad.

The Fourth Amendment, which gives us the right of Habeas Corpus and hearkens back to the Magna Carta, is the deepest of American philosophies and, I daresay, if any of the Founding Fathers had to pick and choose among the first 10 entries that make up the Bill of Rights, it is the one they would be least likely to change.

I'm hauling out my flintlock musket, however, to protect my home and property (and wait for the general Militia call). I only hope I don't shoot anyone by accident (my vision is faltering with old age.)

Under The LobsterScope

Tags: Fourth Amendment, guns, Second Amendment (all tags)

Comments

9 Comments

Magna Carta?

I can't believe we're caving in to the British on human rights.

We're Americans.  

</snark>

by Dracomicron 2008-06-27 05:52AM | 0 recs
He's a little mixed up

Well, the Fourth Amendment is the right to be free of unreasonable government search and seizures. Habeas corpus isn't in the bill of rights, and isn't technically even a right at all.

Habes corpus is a writ -- it challenges the authority of the government to confine you. It doesn't give you a right not to be confined. Some people even go so far as to challenge the idea you have a "right" to file a writ of habeas corpus at all -- the Constitution just says that it shall not be suspended, but doesn't say anything about guaranteeing it exists in the first place.

by Skorri 2008-06-27 06:23AM | 0 recs
Re: He's a little mixed up

That is a great answer.

by rfahey22 2008-06-27 06:39AM | 0 recs
HC is a right, its just

not in the bill of rights.

Its in Article I of the constitution dealing with congress, saying congress does not have the power to take away our HC right (it didnt HAVE to be put in the bill of rights because it was a given).

by sepulvedaj3 2008-06-27 06:51AM | 0 recs
Re: HC is a right, its just

Well, I guess it depends on what you define as a right.  Habeas corpus can be suspended in times of rebellion or invasion.  Other rights cannot be suspended in that sense.  Also, as mentioned above, habeas corpus only concerns the ability to seek judicial review of government detention, it doesn't entitle someone to freedom from government detention.

by rfahey22 2008-06-27 07:03AM | 0 recs
agreed

"it doesn't entitle someone to freedom from government detention"

a lot of people think because they are detained, their HC rights are violated.

by sepulvedaj3 2008-06-27 08:11AM | 0 recs
Re: He's a little mixed up
You can't be serious. How can you rationally argue that there is no right to a writ of habeas corpus - how can you prohibit banning something that doesn't exist, unless your a moron?
And the folks in Philadelphia that wrote it weren't morons.
I hope you're not an attorney....
by M1513 2008-06-27 08:36AM | 0 recs
Re: He's a little mixed up

I hate to be picky, but the phrase "unless your a moron" was both uncalled for and unintentionally hilarious.

And to note, I never said I personally believed in that interpretation. But it is a valid take on the Constitution-- the Founders assumed the existence of a writ, yes, but it's an interesting academic question if we would have habeas corpus at all if the Judiciary Act of 1789 had not been passed. Since it does exist, though, the debate is kind of moot for practical purposes.

I do believe strongly that habeas corpus should not be interpreted as a right. If it's a right, then only United States citizens have it. If it's a restriction on the structure of the government -- which its position in Article I strongly suggests-- then that means all people the U.S. government seeks to detain can resort to it. If it's just a "right," then non-American citizens (see, e.g., Guantanamo) are SOL.

by Skorri 2008-06-27 09:51AM | 0 recs
I think the 2nd amendment should be rewritten

in a way that protects gun ownership rights, but gives states and the district of columbia clear boundaries to regulate but not ban them outright.

by Lakrosse 2008-06-27 09:06AM | 0 recs

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