Does 2nd Amendment trump 4th Amendment?
By Bob Unruh. December 25th 2013.
Article Source
The U.S. Supreme Court has been asked to review a Texas case and determine whether when a homeowner exercises his Second Amendment rights he gives up his Fourth Amendment rights.
In short, does the Second trump the Fourth?
The question is being presented by the Rutherford Institute on behalf of John Quinn of Texas.
Quinn's home was the subject of a no-knock, SWAT-team style forceful entry and raid based "solely on the suspicion that there were legally owned firearms in the household," the legal brief explains.
"Although police had obtained a search warrant for John Quinn's home based on information that Quinn's son might possess drugs, the warrant did not authorize police to enter the residence without knocking and announcing their entry. During the raid, Quinn was shot by police because he had reached for his lawfully owned firearm, thinking that his home was being invaded by criminals," Rutherford explains.
Asking the Supreme Court to hear the case of Quinn v. State of Texas, Rutherford attorneys argue that making lawful gun ownership and possession grounds for police to evade the protections afforded by the Fourth Amendment improperly penalizes and limits the Second Amendment right to bear arms.
John W. Whitehead, president of the Rutherford Institute and author of "A Government of Wolves: The Emerging American Police State," said that whatever the issue might be, "whether it's mass surveillance, no-knock raids, or the right to freely express one's views about the government, we've moved into a new age in which the rights of the citizenry are being treated as a secondary concern by the White House, Congress, the courts, and their vast holding of employees, including law enforcement officials."
"The disconnect, of course, is that the Constitution establishes a far different scenario in which government officials, including the police, are accountable to 'we the people,'" he said. 'For it to be otherwise, for government concerns to trump individual freedoms, with government officials routinely sidestepping the Constitution and reinterpreting the law to their own purposes, makes a mockery of everything this nation is supposed to stand for – self-government, justice, and the rule of law."
The case began in August 2006 when police in Collin County, Texas, got a warrant for Quinn's home. Lower courts rejected Quinn's objection to the "no-knock" entry on the grounds that because police had information that guns were present at the residence, they were justified in making a forced and unannounced invasion.
That's even though established Fourth Amendment jurisprudence dictates that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting a forcible entry unless there are circumstances presenting a threat of physical violence or a danger that evidence will be destroyed.
So the question remains whether police, who admit their only reason for the no-knock raid was the suspicion that a rifle might be present in the home, were justified in their decision to abandon procedures and break into the home without warning.
That's the subject of the Fourth Amendment, which states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonably 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."
The petition asks that the court establish that an individual's exercise of his Second Amendment right to possess a firearm in his residence does not deprive him of his Fourth Amendment protection against "no-knock" searches.
Because the raid was without warning late at night, Quinn reached for his legally owned firearm when the break-in occurred, thinking that criminals were at hand. He was shot by police and hospitalized because he reached for his weapon.
The case briefs argue that the Supreme Court never has held that suspected possession of firearms is sufficient cause to justify a no-knock entry.
The briefs also have criticized earlier court comments about the AK-47.
"The [court] seems to think than an 'AK-47' rifle is some sort of 'exceptionally' dangerous weapon. Actually, despite the faux mystique surrounding that particular type of rifle fostered by popular media, the AK-47 is not uniquely dangerous," a footnote in the brief explains. "It is the most-used rifle in the world because there are 100 million of them, it is cheap to make and easy to repair, and because it can be chambered for a wide variety of calibers.
"When chambered for .223 caliber … it is no more dangerous than any other .223 caliber rifle such as the AR-15 – the most widely used hunting rifle in the U.S. today," the footnote says.
"As a gun collector who prudently kept his legally owned collection safely secured in gun vaults, it was altogether possible that Mr. Quinn could have had a large number of guns in his home and no ammunition. The point here is not to argue that 'possession' of guns does not roughly or usually equate to possession of 'working' guns. The point is: an AK-47 is no more powerful – and is indeed less powerful – than many common hunting rifles.
"The police, being weapons experts, obviously knew this – but testified about the 'dangerous' nature of this particular gun because they knew the jury would have heard of it in the media and would know about its mystique as the weapon of choice for terrorists around the world. Clever, but misleading."
The petition warns Americans that merely the "suspicion" that a gun is present could prompt contacts from police to be the "break-down-the-door and charge in" type if the Texas case is not overturned.
"After all, if no-knock entries are thought to be 'safer' for police than knocking and announcing, what could possibly incite police to ever knock? Safety can only be endangered by dangerous people," the case argues.
"Petitioner requests this court issue a blanket, logical rule stating that suspected presence of firearms alone is never sufficient to overcome the knock-and-announce rule, and unless the police suspect that the persons involved might be dangerous, based on specific, articulable facts, then knock and announce is required under the Fourth Amendment."
