Mapp-ing the Fourth

I miss the glitz and glamour of the first two amendments. Free speech and the right to bear arms are two of the most well-known pieces of the Bill of Rights. I’ll be surprised (and delighted, frankly) if more than a fifth of the American people could tell me offhand that the Fourth Amendment pertains to unwarranted searches and seizures.

Here is the text of the Fourth Amendment:

“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.”

Courtesy of The Week

In 1961, Dollree Mapp (probably the most ridiculous name in a case to date) was suspected of harboring a fugitive. Police arrived, with a warrant to search for the suspect. Mapp resisted, stashing the warrant under her clothes (a bold choice) and tried to prevent the search from occurring. The officers ended up detaining her and searching the house thoroughly.

Upon further search, the suspect was indeed found. However, the kicker comes when we learn that Mapp was a dirty birdy and had pornographic materials stashed in a footlocker. Back in the 60’s, while stereotypically a free time, porn was considered obscene and illegal – for more, look in to Miller v. California.

Mapp was sentenced to 1-7 years for the possession of “lewd and lascivious” materials. Immediately, she appealed this conviction on account of freedom of expression being protected by the First Amendment.

The Court basically said they didn’t care about Mapp’s First Amendment appeal. However, they used a wildly more compelling point to make their decision – were the police really looking for a suspect (presumably man-sized) in a footlocker (presumably smaller than man-sized)?

Mapp was let off on this simple idea. The police did indeed have a warrant, but that warrant was to search for a fugitive suspect and a fugitive suspect only. Clearly, the police, in the fervor that Mapp’s belligerence worked them in to, exceeded the scope of their warrant.

The real constitutional question boils down to this: under the Fourth Amendment, can the evidence of the pornographic material found in Mapp’s home be used to convict and sentence her?

The court, in a 6-3 decision on June 19^th, 1961, ruled that the evidence was illegally obtained. A landmark decision, this case codified the rules about collecting evidence in accord with the Constitution.

By far the furthest reaching implication of Mapp v. Ohio, other than encouraging people to hide their porn better, would be the exclusionary rule. According to Wex, the exclusionary rule “prevents the government from using most evidence gathered in violation of the United States Constitution”. Seemingly a valuable stipulation, this rule caused unforeseen complications for the Supreme Court in dealing with illegitimate evidence. There are many specifications to the exclusionary rule, testament to its complexity: the good faith exception, the independent source doctrine, inevitable discovery doctrine, attenuation doctrine, and qualified immunity, to name a few.

Mapp was a ground breaking case that laid the framework for the application of the Fourth Amendment to future cases. Even though good ole Dollree seems like quite the character, her case against the state of Ohio is a critical one to understanding the Fourth Amendment.

Poor Number 3

The Third Amendment is far and away one of the least implemented amendments within the Bill of Rights. I wish I didn’t have to blog about such a useless amendment, but I promised that I would outline each of the ten amendments within the Bill of Rights. I am nothing if not a man of my word.

An oft forgotten piece of legislation, the Third Amendment states that “no soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” Simply put, soldiers can’t live in your house forcibly during peace. Even during war, the government must lawfully develop some sort of process in order to house the soldiers.

Courtesy of the Constitution Center

Given the political climate out of which the Bill of Rights originated, it is easy to see why such an amendment became part of our legal code. The oh so tyrannical British from whom we were in the process of freeing ourselves had in no way abided by a similar policy. Redcoats often stormed homes for shelter without any of this “consent of the owner” nonsense.

Considering how esoteric and inapplicable this amendment is ever since we became independent, it isn’t hard to believe that there haven’t been any Supreme Court cases decided in conjunction with the Third Amendment. However, there has been one somewhat major case regarding the Third Amendment, decided by the US Circuit Court of Appeals: Engblom v. Carey. Even the name Engblom sounds somewhat ridiculous.

In this case, New York State correctional officers were on strike, and National Guardsmen filled their places in some roles. At more than one location, the striking employees were evicted as the guardsmen came to take their responsibility and use their housing as well.

Engblom, the original prison worker, claimed that the government issued National Guardsmen illegally quartered in her home, which she was a tenant of while working for the prison. The state, argued under the name Carey (the then governor Hugh Carey), asserted that because the State evicted Engblom on account that she was striking, they had the right to quarter their “soldiers” (loosely defined) in the former residence.

The state ended up with the worse argument. The court recognized that Engblom’s Third Amendment rights were infringed upon. However, Engblom still lost the case due to a technicality on qualified immunity. This principle states that the defendants, acting on behalf of the state, were immune to any illegal actions that they committed unknowingly.

Even when the Third Amendment gets called in to play, it still doesn’t even really matter. What a rough life for good ole number 3.

While little was established by this case except that the government has an incredibly poor understanding of what a soldier is, there is one important lesson – technicalities matter. Who cares how strong your case is – getting a case decided for some minor wrongdoing involved or a little known principle such as qualified immunity can be a deal breaker. Law is a game of inches.

What's a Militia?

For some reason, no one seems to understand what it means to have a well-regulated militia. The Second Amendment has, for some reason, one of the most controversial pieces of legislation in American history. It reads:

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Courtesy of FunnyJunk

Most people have taken to reducing this text to simply “the right to bear arms”, but the militia part is far and away more important in my mind. Whether or not I support guns for all, the amendment itself does not allow for it.

A thorough analysis of the text of the amendment itself makes it clear that the right of the people to keep and bear Arms only stems from the need for a regulated militia in order to protect the freedom of American citizens, which is no longer a reality of modern life.

But, I digress from the ramblings of an English pedant and turn towards our court case for the week: DC vs. Heller, argued in 2008 by the Roberts Court.

In this case, Dick Heller was a police officer in Washington DC who carried a gun on the job but was denied a permit to have a gun at his home. Heller, the man of the law that he undoubtedly was, sued the District of Columbia for violating his Second Amendment Rights to bear arms in the provisions of the DC Code that forbade licensing of handguns and required already licensed guns to be kept nonfunctional when in a home setting. That’s a lot of words – basically, he was bitter he couldn’t have a gun at home and decided his rights were being infringed upon.

The Roberts Court concluded that the ban in the DC Code was unconstitutional. They claimed that the first clause mentioning the militia is “prefatory”. I believe they made that word up in an attempt to trick us. The concurring argument asserts that to ban guns form the people and restrict them for actual law enforcement/military personnel could recreate the type of fear-striking government that the Framers must have been avoiding.

I’ve always loved a good John Paul Stevens dissent, and this one fits the bill: Stevens claimed in his opinion that “the most natural reading of the amendment is that it protects the right to keep and bear arms for certain military purposes but does not curtail the legislature’s power to regulate nonmilitary use and ownership of weapons.” These justices are wordy people, but an expert shortener – he’s saying that the Amendment applies to MILITIA.

To me, this makes the most sense. Whether or not I support the right to firearms for personal use is an issue I have yet to truly make sense of, but from a reading of the Second Amendment, I see no way in which we are guaranteed an all-encompassing right to guns, especially the automatic behemoths that are far above the threshold for self-defense.

I’m curious to what you think in the comments. Did the Court get it right? I’ve always been intrigued by people’s different (mis)interpretations of the wording of the Second Amendment. It’s definitely a toughie.