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



Display:


Magna Carta? (none / 0)

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

We're Americans.  

</snark>


In this avalanche, the pebbles get to vote.
by Dracomicron on Fri Jun 27, 2008 at 09:52:32 AM EST

He's a little mixed up (2.00 / 1)

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 on Fri Jun 27, 2008 at 10:23:29 AM EST

Re: He's a little mixed up (none / 0)

That is a great answer.


by rfahey22 on Fri Jun 27, 2008 at 10:39:38 AM EST
[ Parent ]

HC is a right, its just (none / 0)

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).


vote blue in 2008
by sepulvedaj3 on Fri Jun 27, 2008 at 10:51:09 AM EST
[ Parent ]

Re: HC is a right, its just (none / 0)

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 on Fri Jun 27, 2008 at 11:03:53 AM EST
[ Parent ]

agreed (none / 0)

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

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


vote blue in 2008
by sepulvedaj3 on Fri Jun 27, 2008 at 12:11:41 PM EST
[ Parent ]

Re: He's a little mixed up (none / 0)

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 on Fri Jun 27, 2008 at 12:36:13 PM EST
[ Parent ]

Re: He's a little mixed up (none / 0)

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 on Fri Jun 27, 2008 at 01:51:42 PM EST
[ Parent ]

I think the 2nd amendment should be rewritten (none / 0)

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 on Fri Jun 27, 2008 at 01:06:31 PM EST


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