Monthly Archives: March 2017

pexels-photo(1)

United States v. Miller: Individual Second Amendment Right (05/15/1939)

United States v. Miller

Does the Second Amendment protect an individual’s right to keep and bear arms?

Argued: 03/30/1939

Decision Date: 05/15/1939

Decision Record: 8-0; no

Justices Majority: Charles Hughes, James McReynolds, Pierce Butler, Harlan Stone, Owen Roberts, Hugo Black, Stanley Reed, Felix Frankfurter

Justices Dissenting: None

Justice William Douglas did not partake in this decision.

Effect of the Decision

This case holds that the Second Amendment does not ensure the protection of every individual’s right to bear a sawed-off double barrel shotgun.

In Favor

Attorney Gordan Dean argued in representation of the United States.

Against

Jack Miller and Frank Layton were the appellee.

Justices:

The decision for the United States was a unanimous one. The opinion was written by Justice James McReynolds. He wrote, “Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: . . . every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good powder, and four pounds of lead, including twenty blind cartridges, and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seems to afford any material support for the challenged ruling of the court below.”

My Opinion:

In this case, I agree with the court’s decision. The Second Amendment gives you the right to bear arms, however, the ownership of a sawed-off double barrel shotgun without registration does not help maintain an effective state militia, which is one of the purposes of the Second Amendment. If the possession of such a weapon does not meet the purpose of the Second Amendment, his/her right has not been violated, especially since the shotgun has not even been registered. The Second Amendment does not necessarily mean that everyone can walk around in public carrying a gun or a weapon, nevertheless an unregistered one.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

pexels-photo-186077

Kyllo v. United States: Unwarranted Thermal Search (06/11/01)

Kyllo v. United States

Does the use of a thermal-imaging device to detect heat emanating from a private home constitute as a violation of the Fourth Amendment?

Argued: 02/20/01

Decision Date: 06/11/01

Decision Record: 5-4; yes

Justices in Favor: Antonin Scalia, David Souter, Clarence Thomas, Ruth Ginsburg, Stephen Breyer

Justices Dissenting: William Rehnquist, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy

Effect of the Decision

This case clarifies that the use of a thermal-imaging device, or any other device used to conduct a search, even from outside the house, is considered unconstitutional if performed without a warrant.

In Favor

In representation of Kyllo, attorney Kenneth Lerner argued, “Our home is the basic refuge for all citizens.

It’s where we have our greatest expectations of privacy, where we are free to let down our guard, and where we should have our greatest feeling that we are free from government spying.

Unreasonable and unwarranted searching of the home is the chief evil that the Fourth Amendment protects us against, and it has a specific… the home itself has a specific mention in the Constitution, and as a bedrock principle, the home is a place where we have our most heightened expectations of privacy.

I think that is an incomplete view of thermal imaging because there would be no image at all if it weren’t for the thermodynamic process.

There must be a constant heat source to heat up the wall so that you will see it.

Therefore there is something behind the wall that provides and radiates heat to the wall, the wall reradiates it out, but if it’s not constant, if it’s not a dynamic process, you will not see anything, and therefore it is the purpose of the thermal imager and the function of the thermal imager is to detect what is beneath the surface by scanning that surface.”

Against

Then in opposition, representing the United States, attorney Michael R. Dreeben claimed, “Thermal imaging senses heat gradients on the exterior of a surface, in this case the structure was a house.

It does not penetrate the walls of the house, it does not reveal particular objects or activities inside of a house, and the record in this case and the findings that the district court made indicate that it is not capable of doing so through walls of a house.

The question in this case is whether individuals have a reasonable and justifiable expectation of privacy in the heat that’s on the exterior surface of their walls.

We believe that they do not.

Heat loss is an inevitable feature of heat in a structure.

If a structure is generating heat, it will lose that heat, and everyone knows that.

That’s why there is an insulation industry.

In addition, heat loss is frequently observable without the aid of technology, as, for example, when snow melts on a roof.”

Justices:

The majority opinion was written by Justice Scalia. He wrote, “We have said that the Fourth Amendment draws “a firm line at the entrance to the house,” Payton, 445 U.S., at 590. That line, we think, must be not only firm but also bright–which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v. United States, 267 U.S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause–and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.”

In respectful dissent, Justice Stevens said in his opinion, “The Court argues that the permissibility of “through-the-wall surveillance” cannot depend on a distinction between observing “intimate details” such as “the lady of the house [taking] her daily sauna and bath,” and noticing only “the nonintimate rug on the vestibule floor” or “objects no smaller than 36 by 36 inches.” Ante, at 10—11. This entire argument assumes, of course, that the thermal imager in this case could or did perform “through-the-wall surveillance” that could identify any detail “that would previously have been unknowable without physical intrusion.” Ante, at 11—12. In fact, the device could not, see n. 1, supra, and did not, see Appendix, infra, enable its user to identify either the lady of the house, the rug on the vestibule floor, or anything else inside the house, whether smaller or larger than 36 by 36 inches. Indeed, the vague thermal images of petitioner’s home that are reproduced in the Appendix were submitted by him to the District Court as part of an expert report raising the question whether the device could even take “accurate, consistent infrared images” of the outside of his house. Defendant’s Exhibit 107, p. 4. But even if the device could reliably show extraordinary differences in the amounts of heat leaving his home, drawing the inference that there was something suspicious occurring inside the residence–a conclusion that officers far less gifted than Sherlock Holmes would readily draw–does not qualify as “through-the-wall surveillance,” much less a Fourth Amendment violation.

Although the Court is properly and commendably concerned about the threats to privacy that may flow from advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the future. It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints.”

My Opinion:

In this case, I agree with the majority decision. The thermal-imaging device used to perform a thermal search is still considered a violation of the Constitution. The search was performed without a warrant, and regardless of the fact that it was done outside, it allowed the searchers to search inside Kyllo’s property, which is evidently a violation of the Fourth Amendment right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” They may not have been able to actually look inside, but it allowed them to find what they were looking for without a warrant, which is not constituted by the Fourth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Neil Gorsuch: Supreme Court Nomination

Born on August 29, 1967 in Denver, Colorado, Neil Gorsuch was the oldest child of his mother, Anne Gorsuch. He went on to study at multiple top universities, including Columbia University, Harvard University, and the University of Oxford. Gorsuch first began as a clerk for the Judge David Sentelle of the US Court of Appeals for the District of Columbia Circuit. He then continued to serve as a clerk for Justice Anthony Kennedy and retired Justice Byron White. After, in July 2006, Gorsuch was unanimously affirmed for a position on the United States Court of Appeals for the Tenth Circuit. In that same year, he also wrote and published his book, The Future of Assisted Suicide and Euthanasia. Finally, he was selected as a nominee as a US Supreme Court Justice by President Donald Trump in January and February 2017.

I support the nomination of Neil Gorsuch for multiple reasons.

 

Gorsuch is an originalist.

This is probably the most important factor when deciding whether he should get a spot on the Supreme Court of the United States. When contemplating a decision such as this, a question of whether or not the nominee will bring justice must be asked. Lady Justice holds a scale in her left hand and a sword in her right, with a blindfold covering her eyes. The scale symbolizes a just judicial process and that both sides of the case will be taken under consideration. The blindfold represents impartiality. The decision of the case will not be made with consideration to wealth, race, or any other status a person may hold that could potentially be seen above others. And finally, the sword signifies the power and strength of justice and that justice can also exemplify finality. Lady Justice should represent all the justices on the Supreme Court.

Unfortunately, this is not so.

The current Supreme Court justices are extremely left-leaning and unbalanced. More so now than ever especially with originalist Justice Antonin Scalia gone. This is exactly the reason Gorsuch would be the perfect successor for Scalia. We see multiple similarities between the two. Scalia was widely known for his originalist perspective on things — meaning he reasonably attempted to interpret the Constitution the way it was understood by our Founding Fathers when it was written, something we also have seen through Gorsuch in the Tenth Circuit Court of Appeals. It is necessary that we replace the previous originalist justice with another one, to maintain balance between the justices on the Court. There’s no better person for the spot than Gorsuch. We need a textualist to properly interpret the Constitution the way it was meant to be seen. Gorsuch sees the Constitution how it is and how it’s supposed to be, rather than change its meaning and purpose, which is what the Democrats are trying to do so that the Constitution is distorted to their belief system.

“Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams.”

 

  • Neil Gorsuch

 

 

Gorsuch is highly intelligent, unbiased, and a strong believer in the Constitution.

It’s no secret that Gorsuch is beyond smart. Attending Columbia University, graduating Phi Beta Kappa, “the nation’s oldest academic honor society”, and earning a J. D. (Juris Doctor) from Harvard, his intelligence cannot be questioned. Not only that, he also received a Ph.D in law at Oxford University. There’s no doubt that his intellect is qualified for the Supreme Court.

Democrat, California Senator Dianne Feinstein met with Gorsuch and said the following day, “He’s a very caring person and he’s obviously legally very smart.”

She also said after, “I think we are dealing with someone who is impressive, so we’ll see.”

Gorsuch received the Edward J. Randolph Award for phenomenal service to the Department of Justice. This award was named after the first Attorney General and is the highest award for public service and leadership. Also, for superb public service in the field of law, he earned the Harry S. Truman Foundation’s Stevens Award, which is given to a Truman Scholar who has made exceptional contributions to public service.  

Gorsuch also said that “if a judge does not sometimes find himself voting or ruling against his own personal beliefs about politics or morality, that is a sure sign that he is failing to do justice according to law.”

Gorsuch wrote last year: “Often judges judge best when they judge least.” He said, “When judges defer to the executive about the law’s meaning, they are not fulfilling their duty to interpret the law.”

Judge Gorsuch claimed that a “problem for the judiciary” and “a problem for the people whose liberties may now be impaired” by “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”

Gorsuch explains that some of the judges are allowing their political beliefs erode the constitutional rights of citizens.

Denver’s attorney David Lane said, “He is a very, very smart man. His leanings are very conservative, but he’s qualified to be on the Supreme Court.”

He continued, “I don’t know that Judge Gorsuch has a political agenda and he is sincere and honest and believes what he writes.”

 

Gorsuch is a good writer.

This is especially important as a Supreme Court justice. A good judge must know how to properly portray his or her opinion. When writing an opinion, you must be a good writer to write a good opinion, regardless of whether people agree with it. Gorsuch meets these requirements perfectly.

In 2006, Gorsuch published a book, The Future of Assisted Suicide and Euthanasia, expressing his opposition on assisted suicide. It’s clear that the topic was heavily researched for his book and this can also be said for the way he writes his opinions.

“All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”

 

  • Neil Gorsuch, The Future of Assisted Suicide and Euthanasia

 

 

Through his published book, we can also infer his position on topics such as abortion. His strong stance on the “right to life” allows us to presume his understanding of abortion.

 

In Hobby Lobby Stores v. Sebelius, the Greens, a family that owned a store called “Hobby Lobby,” filed a lawsuit against the Department of Health and Human Services. The Affordable Care Act, also known as Obamacare, had requirements to do with contraceptions that went against the religious beliefs of the Greens. They refused to pay for contraceptions that aborted fertilized eggs, but were compliant to pay for contraceptions that abort implanted eggs. The insurance subjected the family to fines, so they ordered a preliminary injunction to stop the fines, but the district courts denied their request. As a result, they appealed.

In his opinion on the case Hobby Lobby Stores v. Sebelius, 2013, Gorsuch expressed his strong belief in the right to religious freedom in the First Amendment and voted in favor of the Greens.

 

In the case United States v. Carloss, the police entered private property with “no trespassing” signs and knocked on his door to perform a search. While Carloss eventually, let the agents in, he received a criminal conviction. Carloss appealed, arguing that his Fourth Amendment rights to “unreasonable searches and seizures” were violated. The government said that there was implied consent — “curtilage” — to search the area and two of three judges on the Tenth Circuit agreed.

Gorsuch however, dissented and argued that there was no implied consent involved on a remote and private property such as Carloss’s where there was no tresspassing signs put up. But he added that a search could have been justified under an emergency or if they had a warrant.

 

In Yellowbear v. Lampert, a Wyoming prisoner serving for the murder of his daughter named Andrew Yellowbear was denied permission to use the sweat lodge for his Native American religious purposes, resulting in him suing his prison. The prison claimed that the transportation was too expensive, successfully removing Yellowbear’s argument. This led to him appealing to the Tenth Circuit, who unanimously agreed with Yellowbear.

In this opinion, Gorsuch wrote that Yellowbear effectively proved that the use of the sweat lodge was, indeed, a part of his Native American culture, and the prison’s refusal to let him use the lodge was a violation of Yellowbear’s First Amendment.

[The First Amendment] “doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

 

  • Neil Gorsuch, Hobby Lobby Stores v. Sebelius