A divided U.S. Supreme Court gave prosecutors more ability to use evidence obtained in violation of the Constitution, ruling against a man who was arrested and searched only because of a police clerical error.

The justices, voting 5-4 along ideological lines, upheld Bennie Dean Herring’s conviction for illegal possession of the methamphetamine and pistol he was carrying when he was arrested in 2004 in Coffee County, Alabama.

“In such a case, the criminal should not go free because the constable has blundered,” Chief Justice John Roberts wrote for the court, using a line from a 1926 Supreme Court decision.

Herring was arrested when he came to the Coffee County sheriff’s department to retrieve something from an impounded truck. At the time, a neighboring county’s computer system showed an active arrest warrant for Herring’s failure to appear in court on a felony charge. That warrant in reality had been recalled, so Coffee County police lacked any legal basis to arrest Herring.

The Supreme Court in some past cases has applied the so- called exclusionary rule to illegally obtained evidence, barring its use at trial. The court has restricted use of the exclusionary rule under Roberts and his predecessor as chief justice, William Rehnquist.

Not Deliberate

“As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” Roberts wrote. “The error in this case does not rise to that level.”

Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy joined Roberts’s opinion.

Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens and Stephen Breyer dissented.

“Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule and cannot be remedied effectively through other means,” Ginsburg wrote.

The case is Herring v. United States, 07-513.

I predict an increase in clerical errors, blunders and accidents by police officers and department clerks.

Related posts:

1. California Supreme Court upholds conviction from illegal search
2. Supreme Court rules on car passenger 4th Amendment rights
3. Supreme Court says passengers can be frisked without confirmed reasons

I had noticed this the other day but thought I just hadn’t paid close enough attention to it originally. xyz this morning independently noticed new sections on their FAQ. It appears to have been updated the 1st or there abouts:

What if I don’t want to do any service?

This is a superb question.

Hopefully, enough people will volunteer to serve so that individuals not interested in National Service can be accommodated. How many people is enough? That’s tough to say. How many more good teachers and tutors do we need to make American education globally competitive again? The Iraq War may have been a war of choice but the next war may not be. What happens if the volunteer force isn’t big enough? If global climate change is what some scientists say it is, how many Americans need to be involved in conservation and disaster relief? How much time should you devote to your community so it’s the type of place your family is happy to live in?

There is a simple choice here. We can do these things or we can pay someone else to do it for us (which typically means higher taxes and putting more trust in bureaucracies). And don’t be surprised if you don’t like the results when you relinquish your opportunity to make a difference to someone or something else.

Some people feel affronted by the idea of National Service because they view it as surrendering to government. Obviously, we don’t agree. We see it as average citizens taking back their civil institutions and actualizing government “of the people, by the people, and for the people.” At present, we’re having a difficult time keeping Americans (particularly young people) interested in and focused on the affairs of local, state, and federal government. This inattention has resulted in many abuses in the last few years. Our solution is to get more Americans involved via National Service (more ‘skin in the game’ if you will). Implied in this idea is a lack of faith that voting alone provides adequate accountability, responsiveness, and results. After all, what is casting a vote compared to doing?

All that being said, if you don’t want to serve then we hope you understand that American democracy will be poorer and less effective without the direct participation of your talent, intellect, and abilities.

Is mandatory National Service constitutional?

Yes.

The United States has practiced several forms of mandatory National Service throughout its history. The Militia Act of 1792 and the Selective Service System (a.k.a. the Draft) are the two most referenced examples. Probably the most commonly experienced form of mandatory service is jury duty. Also, it can be argued that paying taxes is a form of mandatory National Service.

One can reference dozens of US Supreme Court Cases that weighed individual rights versus civic obligations. The most prominent case on this matter is Butler v. Perry (1916). In this instance the Court ruled that the 13th Amendment does not apply to mandatory national service. For further information on the legal precedence of National Service click HERE.

So I checked Google Cache and found that as of June 24th, 2008 12:41:40 GMT the above two sections were not on the site. I’ve uploaded a snapshot from Google Cache here in case Google updates.

Notice they don’t answer the first question and the second question makes the assumption that just because something is constitutional it’s OK. It also assumes that just because the US Supreme Court says it’s constitutional it is. While in the legal system that may be true the 13th Amendment seems pretty clear to me.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have the power to enforce this article by appropriate legislation.

If I must participate in some service against my will it seems to me to be by definition involuntary servitude/slavery. The 13th Amendment forbids that. I don’t care what some people in black dresses say. Conscription is both unconstitutional in that it violates the 13th Amendment and it goes against the concept that government is created at the consent of the governed to protect their rights. If the 13th isn’t enough you can take a look at the 5th and 14th too.

The reason these additions are noteworthy is that xyz had emailed them directly requesting what would occur if an individual refused to serve. She has yet to receive a personal reply but the FAQ as we have seen has been updated with a poor answer.

If there is no punishment for failing to participate in the “mandatory service” then it’s not mandatory just like “mandatory” participating in the census is in fact not.

Related posts:

1. NationalServiceAct.org changed again, changes position on mandatory service
2. My second letter to Americans for a National Service Act
3. Serve America Act / Give Act passes House, heads to Obama

Related posts:

1. SCOTUS has overturned the DC handgun ban
2. John McCain says his campaign is about “reform, peace and prosperity”
3. State of the First Amendment 2007

The U.S. Supreme Court ruled Thursday that Washington D.C.’s sweeping ban on handguns is unconstitutional.
The justices voted 5-4 against the ban with Justice Antonin Scalia writing the opinion for the majority.

At issue in District of Columbia v. Heller was whether the city’s ban violated the Second Amendment right to “keep and bear arms” by preventing individuals — as opposed to state militias — from having guns in their homes.

District of Columbia officials argued they had the responsibility to impose “reasonable” weapons restrictions to reduce violent crime, but several Washingtonians challenged the 32-year-old law. Some said they had been constant victims of crimes and needed guns for protection.

There were 143 gun-related murders in Washington last year, compared with 135 in 1976, when the handgun ban was enacted.

The judgment is not yet on the SCOTUS’s website.

It’s another 5-4 ruling. I don’t like these splits. The ruling doesn’t have the power as it would otherwise. In the short term the legal result is the same but in the long run I think it gives more room to question it in the future.

As you can see in the graph below the handgun ban made no apparent or calculable difference in the number of homicides in DC:

Paul Helmke of the Brady Campaign just said on CNN that “we disagree with the courts interpretation of the 2nd Amendment. Given the history, at least going back to the 1939 ruling, we feel it refers to a ‘well-regulated Militia.’” So he admits that the meaning was different.

Now he just said if you just look at the debates from the amendment’s time that you’d see his interpretation was correct.

Really?

• “[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.”
  –James Madison, The Federalist Papers, No. 46
• “That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms … ”
  – Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts
• “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
  –Tenche Coxe, The Pennsylvania Gazette
• “No Free man shall ever be debarred the use of arms.”
  – Thomas Jefferson, Proposal Virginia Constitution
• “The right of the people to keep and bear … arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country …”
  – James Madison, I Annals of Congress 434, June 8, 1789
• ” … to disarm the people – that was the best and most effectual way to enslave them.”
  – George Mason, 3 Elliot, Debates at 380
• ” … but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights …”
  – Alexander Hamilton speaking of standing armies in Federalist 29
• “The people are not to be disarmed of their weapons. They are left in full possession of them.”
  – Zacharia Johnson, delegate to Virginia Ratifying Convention

Just a few. Obviously it was a topic of discussion at the time. If the Congress had the ability to raise an army and control militias why then would they have to put in the 2nd Amendment less they felt the Congress couldn’t be trusted?

Over at Yahoo we find a quotes from the justices:

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by “the historical narrative” both before and after the Second Amendment was adopted.

In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

He said such evidence “is nowhere to be found.”

What part of “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.” does he not understand? “The people” and “shall not be infringed” seem pretty clear to me. The amendment would be pointless unless it was for the people. Article 1, Section 8, Clause 16 of the US Constitution says of the powers of Congress: To provide for organizing, arming and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States, respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

So, again, why the 2nd Amendment? They can arm them but not disarm them?

Related posts:

1. District of Columbia v. Heller opinion released online
2. NRA cares about gun rights, not property rights
3. SCOTUS not done yet: Part of McCain-Feingold Campaign Finance law struck down

Speaking ahead of the lecture, Dr Alex Belenky, a visiting scholar at the Massachusetts Institute of Technology (MIT) Center of Engineering Systems Fundamentals and author of the book ‘How America Chooses Its Presidents’, said: “Under a certain composition of Congress to be sworn in January 2009, a tie in the 2008 Electoral College may result in a constitutional crisis in the form of an election stalemate, making the US Supreme Court intervention in the 2008 presidential election inevitable.

“Contrary to widely publicised beliefs of the Electoral College opponents, making the nationwide popular vote a decisive factor in determining the election outcome doesn’t require the elimination of the Electoral College.

“Slightly modified election rules would let the country elect a US President with a mandate from both the nation and the individual states and would make all the states ‘battleground’ in election campaigns while keeping the Electoral College as a backup.

Dr Belenky, who holds a PhD in systems analysis and applied mathematics, will tell an audience in The School of Mathematics that in Presidential elections held from 1948 to 2004, only 16.072% to 21.103% of all voting voters could have elected a President under the Electoral College system, and the modified election rules eliminate such election outcomes.

“Numerous publications in the national and international media bear evidence that reporters often offer incomplete and sometimes incorrect information about the system of electing a President in the US.

Moreover, lack of understanding of both the origins and the quantitative features of Electoral College, especially the way it works in close elections, causes some reporters abroad even to question whether the existing rules of US presidential elections are democratic.”

No, they aren’t democratic nor are they supposed to be. The fact we use the Electoral College shows you that it’s a republican form of election and not democratic. A constitutional republic. If they can’t figure out the difference between a republic and a democracy they should go back to school. If they are substituting the work “democracy” for “republic” they should quit misleading people. I agree there are issues with the election of the POTUS but then again I see issues with the entire federal government. If we roll it back to its original function the Electoral College will make a lot more sense.

Related posts:

1. New Jersey Assembly Passes National Popular Vote Plan
2. Modern representative democracy at work: 39.5% of state legislative races have no major opponent
3. Ralph Nader enters presidential race

California State Senator Alan Lowenthal has introduced SB 1322, which deletes some state laws that discriminate against members of the Communist Party. California’s Constitution, Article 20, says that no one may run for either partisan office or non-partisan office, if that person is a member of the Communist Party, or has been within the last 5 years. The Lowenthal bill does not try to repeal that. It does repeal statutes that bar party members from being public school teachers, and statutes that require organizations that want to meet in a public school to sign an affidavit that they are Communist “fronts”.

The bill has a hearing on April 2 in the Senate Education Committee. If SB 1322 passes, it will probably then be possible to repeal various California election laws that also single out Communist Party members. California is one of only six states that has such election laws. The others are Illinois, Arkansas, Kansas, Arizona, and Pennsylvania. None of these laws are enforceable. In 1974 the U.S. Supreme Court ruled that they violate the First Amendment, in a case called Communist Party of Indiana v Whitcomb. The decision was unanimous.

I’m not surprised there are still laws on the books which discriminate against Communists. I doubt very much anyone but the most hardcore bother with any official “Communist” party. I’d think given the stigma real communists are in one of the many socialist parties or maybe the Green party.

Related posts:

1. California: Home schooling children not a right
2. Reason.tv’s Drew Carey Project Episode 26: Hasta La Vista, Arnold! – What California’s Budget Mess Means for America
3. California proposal to lay a 25% tax on porn appears unlikely to pass

Montana officials said its statehood contract will be breached if the U.S. Supreme Court rules only state-run militias can keep and bear arms.

While there’s no secession talk in Montana, 39 elected state officials signed a resolution declaring that if the court rules the Second Amendment to the Constitution is a right of states, not individuals, Montana’s compact would be violated, The Washington Times reported Monday.

“The U.S. would do well to keep its contractual promise to the states that the Second Amendment secures an individual right now as it did upon execution of the statehood contract,” Montana Secretary of State Brad Johnson said in a Feb. 15 letter to the Times.

The Supreme Court is expected to hear arguments on a federal court decision striking down the District of Columbia’s gun-ownership ban. The high court hasn’t issued a broad Second Amendment ruling in nearly seven decades, including whether it provides an individual right or a state government-held collective right, the Times said.

The Montana statehood contract, preserved as Article I of the state’s constitution, specifies gun ownership as an individual right, reading in part, “The right of any person to keep or bear arms … shall not be called into question.”

I thought the REAL ID would put the states and federal government at major odds first. Seems I may be wrong. This is pretty interesting. You rarely have people in these positions talking in this manner. I doubt very much anything will come of this but it’s fun nonetheless.

There is an issue I have with the Bill of Rights and its application. Through incorporation the federal government says that particular amendments apply to state governments. I have major issues with the fact that these cases where incorporation was cited are effectively random. They seem to create the need for incorporation on the spot instead of there being a blanket statement that in fact full incorporation has occurred. This has allowed for the federal government to cherry pick which it wants to enforce. A notable amendment not incorporated is the 2nd. If incorporation is legit it should be codified clearly by passing a new amendment which states without a doubt that all protected enumerated rights found in the federal constitution also apply to the states and the federal government has the power to pass and enforce laws to do so.

Related posts:

1. Montana passes the “Montana Firearms Freedom Act”
2. NRA cares about gun rights, not property rights
3. Would repealing the 2nd Amendment negate the right to own a firearm?

The US government, through the National Security Agency, has been tapping phone lines without court warrants since shortly after the terrorist attacks in the US of September 2001. The till-then secret programme was revealed by the New York Times in 2005.

The government claims that the actions were legal but has made all details of the programme classified. This causes problems for the ACLU since only those who have been wiretapped can sue, but the information about who has been tapped is kept secret.

Jameel Jaffer, director of the ACLU’s national security project, said that the case raised worries about the unchecked power of the president who, as the executive arm, is just one branch of government.

“It’s very disturbing that the president’s actions will not be reviewed by the Supreme Court. It shouldn’t be left to executive branch officials alone to determine what limits apply to their own surveillance activities and whether those limits are being honoured,” he said. “Allowing the executive branch to police itself flies in the face of the constitutional system of checks and balances.”

The ACLU had tried to appeal a verdict of a US Court of Appeal which ruled that it could not prove that its communications had been monitored, and so could not prove that the programme had harmed any party to the case. It had sued on behalf of itself, journalist and scholars.

Separate law suits are being conducted in the US against the telecommunications companies that allowed the surveillance to happen without court-issued warrants.

There are also political struggles over amendments to US law that would allow warrantless wiretaps of non-US citizens in the US who are communicating with people overseas.

A temporary measure expired over the weekend and the Democrat-controlled Congress refused to make the law permanent.

That law included controversial immunity for telecoms companies. Congress has proposed a law that does extend wiretapping but does not grant telcos immunity from prosecution for their actions.

“The court’s unwillingness to act makes it even more important that Congress insist on legislative safeguards that will protect civil liberties without jeopardizing national security,” said Steven Shapiro, the ACLU’s legal director.

You want to prove to the judicial branch that the executive branch is breaking the law and show that the legislative branch is at least complacent if not helping them do so. To have a case you must prove you’ve been harmed but the only proof is held by those you are accusing. They won’t confirm or deny the existence of the proof nor would they turn it over because it’s a matter of national security. The judicial system says that since you can’t get the evidence you don’t have a case.

Does anyone else find this a little troubling?

Related posts:

1. United States Supreme Court to hear Chicago handgun ban case
2. Supreme Court to hear DC gun ban case
3. Supreme Court denies We the People Foundation’s Petition for Writ of Certiorari