Why "Terry" Frisk CCW Permit Holders?


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madcowburger
June 11, 2004, 04:09 PM
If the cop *knows* the citizen has a valid CCW permit, he knows no law is being broken by the citizen being armed. So why does the citizen need to be frisked or disarmed, voluntarily or otherwise, for the duration of the encounter?

"For the safety of the officer (and/or the citizen)"? How is a loaded gun changing hands "safer" than one left untouched in a holster? That seems to be *setting the stage* for an accidental/negligent discharge, especially if the citizen's gun is of a model unfamiliar to the cop.

And how likely is valid CCW permit holder to attack a cop anyway?

I understand it is routine in many places for the cops to demand the permit holder's carry piece so they can "check its serial numbers to see if it's stolen." :rolleyes: I ask you: what are the odds that someone who has applied for permission to undergo an insulting background check and ponied up the exorbitant fee for some "training" and jumped through all the ever-higher-and fierier hoops to get a license to carry concealed is going to be carrying a *stolen* gun? I'd guess something like about one in 900 trillion.

All this demanding that permit holders hand over their guns during "interviews" and submit to frisks seems to me like nothing but a tactic to put American citizens in their place, their properly subservient, submissive position. I don't believe it has anything to do with anyone's "safety" or with enforcing the law, since no law is being broken. And if no law is being broken, how is an American going about his business and exercising his constitutionally and statutorially guaranteed rights a police matter at all?

MCB

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Skippy
June 11, 2004, 04:12 PM
I'd agree that a CCW permit doesn't justify a frisking. I also agree that the officer is more safe if NO guns are handled.

tiberius
June 11, 2004, 04:20 PM
Why "Terry" Frisk CCW Permit Holders? To remind the prols of their place of course.

Seriously, no TX cop has ever asked such a thing the few times had to ID myself. When I did show them my CHL they either said "that’s nice" or asked me where it was....that's it. In TX they do have the authority to disarm during the encounter at their discretion.

DMF
June 11, 2004, 04:55 PM
Merely having a CCW, by itself with no other factors involved, does not justify a Terry frisk. However, I suspect that if there is a stop of some sort that would make an officer aware that the person had a CCW, it is more likely that other factors justifying a Terry frisk are present. But it's all speculation without knowing all the details of a particular encounter.

Read Terry v. Ohio for more information: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=392&invol=1

Smoke
June 11, 2004, 05:13 PM
Seriously, no TX cop has ever asked such a thing the few times had to ID myself. When I did show them my CHL they either said "that’s nice" or asked me where it was....that's it. In TX they do have the authority to disarm during the encounter at their discretion.

My experience confirms this exactly.

Smoke

roscoe
June 12, 2004, 12:29 AM
Yeah - the point of a "Terry" frisk is to search for illegal weapons, not drugs, etc. If you have a CCW, they probably have no legal right to do so, aside from having the articulable suspicion.

spartacus2002
June 12, 2004, 08:55 AM
Good F***ing luck getting me to just hand over my weapon's serial number. Go find some probable cause first, buddy, or blow off.

Zero
June 12, 2004, 09:09 AM
But 99% of the time here in Florida, they don't even ask you about it. They don't want to see it, run the serials, nada.

patentnonsense
June 12, 2004, 09:50 AM
In practice the Terry stop justification is usually a pretext. (There's been a LOT of case law on what is or isn't a permissible Terry stop, and the standards are pretty loose.) So in the case you mentioned, I'd wonder if the permit holder's age, income level, and skin color were mismatched to his surroundings? There are rich neighborhoods in Dallas I don't drive through.

dev_null
June 12, 2004, 10:05 AM
Yeah - the point of a "Terry" frisk is to search for illegal weapons, not drugs, etc. If you have a CCW, they probably have no legal right to do so, aside from having the articulable suspicion
I'm not LE or a lawyer, but according to what I've read, the Terry Frisk is based on "articulable suspicion" on the part of an officer that a crime is in progress. That includes drugs, prostitution, illegal border crossing, B&E, and violent crimes that might involve a gun.

Now, you know and I know that odds of a legal CCW-er being another Scarface or second story man are slight, but he (she) could conceivably be a John, or a coyote, or, for that matter, a member of a "syndicated family."

The test, however (as I understand it), is whether the officer has a reasonable and articulable suspicion that a crime is being committed. Unfortunately, that can range from "he was halfway through the basement window" to "something didn't look right," depending on the cop... and the jury.

- 0 -

The Real Hawkeye
June 12, 2004, 11:36 AM
Doesn't the Fourth Amendment say something about our right to be secure in our persons and effects against unreasonable searches and seizures? The framers even gave us a definition of "unreasonable," i.e., lacking a warrant issued for probable cause supported by oath or affirmation particularly describing the person to be searched and the things to be seized. Oh, but I forgot that we no longer live in that America.

I recently heard an anecdote about an American traveling in France. A police officer walked up to him and demanded his papers. He obliged, and then asked the officer why he was demanding his papers? "Had I done something to lead you to believe I was in violation of law?" "No," responded the officer, "I did it because I can." We are no longer unique in the world, folks.

Coronach
June 12, 2004, 01:57 PM
The framers even gave us a definition of "unreasonable," i.e., lacking a warrant issued for probable cause supported by oath or affirmation particularly describing the person to be searched and the things to be seized. Oh, but I forgot that we no longer live in that America. Not quite. The 4th Amendment states (paraphrasing) that searches and seizures shall not be unreasonable

-and-

no warrants shall issue except supported by oath or affirmation, etc.

By running the two phrases together you create a legal standard that never existed, and then proceed to get upset that it is not the current legal standard in America. The latter phrase deals with warrants and the burden of proof and specificity required for them, but it does not mean that all police action must be based upon warrants- merely that the actions be reasonable. For instance...you murder a man in front of a cop...he is not required to go get a warrant prior to arresting you.

Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.

Mike

Coronach
June 12, 2004, 01:58 PM
Double tap! When in doubt, empty your magazine.

:D

Mike

The Real Hawkeye
June 12, 2004, 03:59 PM
Not quite. The 4th Amendment states (paraphrasing) that searches and seizures shall not be unreasonable

-and-

no warrants shall issue except supported by oath or affirmation, etc.

By running the two phrases together you create a legal standard that never existed, and then proceed to get upset that it is not the current legal standard in America. The latter phrase deals with warrants and the burden of proof and specificity required for them, but it does not mean that all police action must be based upon warrants- merely that the actions be reasonable. For instance...you murder a man in front of a cop...he is not required to go get a warrant prior to arresting you.

Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.

MikeCoronach, after establishing that unreasonable searches are prohibited, the sentence finishes with, "and no Warrants (wonder what kind of warrants they're referring to) shall issue, but upon probable cause, supported by oath or affirmation, etc.,." These are not two separate and unrelated Amendments. This is one sentence, constituting one amendment, dealing with one liberty interest. The latter half of the sentence is a continuation of the prior half.

dev_null
June 12, 2004, 04:34 PM
Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.
Mike, is that an AND or an OR?

- 0 -

DMF
June 12, 2004, 04:54 PM
Hawkeye, you seem to enjoy ignoring the realities of the 4th Amendment, and the Constitution as a whole. The protection is against unreasonable searches and seizures, the warrant issue is intended to help ensure reasonable searches only, ie, just because the Magistrate doesn't like you isn't Probable Cause to issue a warrant. However, as Coronach points out there a plenty of searches and seizures that are still reasonable, without a warrant. The easiest to understand, and most obvious, is the arrest (arrest being the ultimate seizure) of someone who commits a crime in front of a police officer.

Should the officer just let a murder who he watches stab someone to death go and not arrest him until he gets a warrant from the Magistrate? No because the seizure (arrest) is reasonable with or without a warrant signed by the Magistrate.

The Supreme Court has addressed this issue many times, and quite thoroughly, as they are obligated to do by Article III of the Constitution. If you care to read their explanation in Terry v. Ohio, and other relevant cases, you can find them easily over at findlaw.com

Here is an easy way to get started on your education:
http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#1

Standing Wolf
June 12, 2004, 04:58 PM
So why does the citizen need to be frisked or disarmed, voluntarily or otherwise, for the duration of the encounter?

The rights we don't actively defend are always lost to the predations of the state.

The Real Hawkeye
June 12, 2004, 09:28 PM
However, as Coronach points out there a plenty of searches and seizures that are still reasonable, without a warrant. The easiest to understand, and most obvious, is the arrest (arrest being the ultimate seizure) of someone who commits a crime in front of a police officer.The language of the amendment is clear. First, you must understand that this amendment, like all the articles of the Bill of Rights, is a restraint on government. Government acts through its agents. When a Police Officer (while acting as an agent of government), wishes to search a person or the things under his control or on his property, or wishes to make an arrest of someone whom he has never witnessed committing a crime, he must, according to the Constitution, first obtain a warrant. It must also be remembered, however, that Police Officers are also civilians. Like all civilians, when they are a witness to an actual crime, they have the right and duty to act in their civilian capacity and make an arrest on the spot. Since, in this case, he is not acting as an agent of the state (he is, to the contrary, an actual witness of a crime, and will ultimately be called to testify to what he saw in a court of law), he is not bound to the requirement of obtaining a warrant, as I would not be if I observed a crime in progress.

The interpretation, however, that a cop has a choice of either getting a warrant, or searching and seizing on the spot, is a relatively modern development. The orthodox understanding of the Fourth Amendment is that it consists of one sentence, and does not speak of two distinct subjects, but two conjoined and related things, i.e., 1) No searches and seizures by agents of government without it being reasonable, and 2) here's what's meant by reasonable. Statist judges of the 20th Century gradually transformed that into two distinct subjects, like a cop has a choice of 1) getting a warrant or 2) just doing the search and seizure on his own, based on his judgment that it was reasonable. Like 90% of the developments in Constitutional law and criminal procedure, this is 100% pure grade-A horse dung.

The Real Hawkeye
June 12, 2004, 09:30 PM
Double posted by accident.

Coronach
June 12, 2004, 11:58 PM
quote:
--------------------------------------------------------------------------------
Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.
--------------------------------------------------------------------------------


Mike, is that an AND or an OR?Sorry, my bad. Thats an AND. Both conditions must be met for it to be a valid Terry pat-down.

Hawkeye, if you have case law and cites from the founding fathers to back up your argument, I'd like to see them. In short, I disagree, but I'm also not a lawyer. Can someone call El T on the Batphone? We need a tilecrawler here.

Mike

The Real Hawkeye
June 13, 2004, 12:41 AM
Hawkeye, if you have case law and cites from the founding fathers to back up your argument, I'd like to see them.No, I don't have any off the top of my head, but I did a quick search of www.findlaw.com and came up with the following proof that the current view was not always the only view, and that in times past the view that held sway in the court was the one that I have asserted here. Here's the quote from www.findlaw.com:Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are ''reasonable'' are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ''reasonable'' searches under the first clause which need not comply with the second clause. This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases.So you see that not only is my view not quackery, as suggested by DMF, but it has in fact been held in the past to be the standard and correct view by Courts of Appeals.

DMF
June 13, 2004, 01:58 AM
Rather, than just post the main page could you post the link to the page you got that quote? I'd like to see what else they had to say.

Controversies and reversals of decisions are nothing new, not common, but certainly not extra-ordinary. However, rulings are often made on very narrow issues, and later court rulings where a party attempted to use a previous ruling as precedent may not meet the specific criteria of the previous ruling. Therefore what some may classify as a reversal may in fact be a clarification of earlier rulings. Regardless the Court has the power to rule on matters of law, as defined in Article III, and absent an Amendment or new ruling from the Court their decision stands. Any previous rulings do not reduce the legal power of the current ruling.

____________

So Hawkeye let me ask a simple question before this debate goes any farther. Regardless of what actually goes on in our legal system, what do YOU think should happen when evidence that proves someone is guilty is searched for and seized in violation of the 4th Amendment? I am not talking about subjecting any government agents (LEO or non-LE) to civil or criminal penalties, I firmly believe and support civil and criminal penalties for malicious violations of someone's rights by agents of the government/ Rather, what should happen to the evidence and the defendant who is the subject of the search and seizure, in YOUR opinion?

The Real Hawkeye
June 13, 2004, 10:24 AM
Rather, than just post the main page could you post the link to the page you got that quote? I'd like to see what else they had to say.Sure, it's at http://caselaw.lp.findlaw.com/data/constitution/amendment04/01.html#4Controversies and reversals of decisions are nothing new, not common, but certainly not extra-ordinary. However, rulings are often made on very narrow issues, and later court rulings where a party attempted to use a previous ruling as precedent may not meet the specific criteria of the previous ruling. Therefore what some may classify as a reversal may in fact be a clarification of earlier rulings. Regardless the Court has the power to rule on matters of law, as defined in Article III, and absent an Amendment or new ruling from the Court their decision stands. Any previous rulings do not reduce the legal power of the current ruling.As I've said before, I am aware of the ways in which case law has "developed" Constitutional protections, but my concern is the contrast between the course of those developments and the intent of the Founders, which I believe is most clearly expressed in the plain words of the Constitution and Bill of Rights. I believe that the power to enforce the Constitution is not the power to alter it. To alter it requires an amendment according to requirements laid out in the Constitution. The Federal Courts, however, have taken onto themselves the role of aristocracy, making law that is not only inconsistant with the plain meaning of the Constitution, but usually in direct conflict with it. They take it onto themselves to first determine what, in their own judgment, would be the "best" outcome for our society, and then rule that, miracle of miracles, this is precisely what the Constitution had in mind, ignoring the plain words and original intent entirely. The power to manufacture new law "out of whole cloth," however, divorced from the democratic process, is the very definition of tyranny. That power was never given to the Federal Courts. We have allowed them to play fast and loose with the facts for too long, and Congress needs to start putting limits on their appellate jurisdiction (which the Constitution allows) and impeaching clear violators, followed by stiff criminal penalties. Each justice needs to quake in his boots at the very thought of rendering a decision in conflict with the plain meaning and original intent of the Constitution.So Hawkeye let me ask a simple question before this debate goes any farther. Regardless of what actually goes on in our legal system, what do YOU think should happen when evidence that proves someone is guilty is searched for and seized in violation of the 4th Amendment? I am not talking about subjecting any government agents (LEO or non-LE) to civil or criminal penalties, I firmly believe and support civil and criminal penalties for malicious violations of someone's rights by agents of the government/ Rather, what should happen to the evidence and the defendant who is the subject of the search and seizure, in YOUR opinion?I am a believer in the notion that police work and convicting people of crimes ought to be very difficult, requiring government agents to abide by the letter of the Constitution. I am, therefore, a believer in the "fruit of the poisonous vine" doctrine. If government can benefit from violating rights, they are going to do it regardless of penalties. The evidence must be thrown out, along with all evidence that the discovery of that evidence led to. I realize that this means that occasionally a guilty person will go free, but I'd rather that a hundred guilty parties go free than for this nation to transform into a reflection of what we see in European police states. Follow the rules, and respect peoples' rights, and it will never become an issue.

joe saxon
June 13, 2004, 11:06 AM
The Knowledge Skills and Training of the officer, Given the circumstances, that have not been listed, at least what I have read, An experiened cop watched a store being cased for a robbery, determined that the actions of the suspcts was enough to engage in conversation, based on his training believing they had weapons conducted pat down, found gun made case, bad guys challenged no right to search, court (paraphrasiing) said given the circumstance and the officers KSA..knowledge, skills and abilities was ok, seasoned cops often pick up on things younger cops miss, courts have reocgnized this.

Normal, sane law abiding people who feel that they, are being victimized feel free to jump ship, if you carry, and a cop notices it and does not check your CCW/CCP and weapon, which in some states is listed on permit, are not dong their job. or just are hoping you a good guy,and nut some nut case.

PrudentGT
June 13, 2004, 03:05 PM
We have allowed them to play fast and loose with the facts for too long, and Congress needs to start putting limits on their appellate jurisdiction (which the Constitution allows) and impeaching clear violators, followed by stiff criminal penalties. Each justice needs to quake in his boots at the very thought of rendering a decision in conflict with the plain meaning and original intent of the Constitution.

I agree wholeheartedly, but sadly this is the same congress that seems woefully igorant of even the text, let alone intent, of the Constitution.

DMF
June 13, 2004, 06:33 PM
Originally posted by The Real Hawkeye (June 13th, 2004 07:24 AM):

. . . The power to manufacture new law "out of whole cloth," however, divorced from the democratic process, is the very definition of tyranny. . .

. . . I am a believer in the notion that police work and convicting people of crimes ought to be very difficult, requiring government agents to abide by the letter of the Constitution. I am, therefore, a believer in the "fruit of the poisonous vine" doctrine. If government can benefit from violating rights, they are going to do it regardless of penalties. The evidence must be thrown out, along with all evidence that the discovery of that evidence led to. . .(SIC) emphasis added

Here again is the flaw in your approach to these matters. The "exclusionary rule" or "fruit of the poisonous tree" doctrine, which you love violates your so called "orthodox understanding" of the Constitution. No where in the Constitution will you find the exclusionary rule, in no part of the US Code will you find it either. It was a concept completely created by the courts.

That's right, that judiciary that YOU think has no business "creating law" felt that in ADDITION to criminal and civil penalties for violating rights, they would create the exclusionary rule as an additional punishment. The concept was first introduced by the Supreme Court in 1886 with the Boyd v. US http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=116&invol=616

The court waffled back forth on the issue, until it was solidified in relation to the fourth amendment in Weeks v. US in 1914. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=232&invol=383 Now the real irony is they made a variety of rulings over the years after Weeks (which sometimes appear contradictory), but didn't really get down to brass tacks on the issue until 1961, when they firmly applied it to the fourth and fifth amendment, and applied it the states (not just federal) in Mapp v. Ohio http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=367&invol=643

See this is where the problem with your logic lies. You love the exclusionary rule, which was created wholly out of the Supreme Court. Yet you loathe their rulings on the matters actually written in the Constitution when it comes to the reasonableness doctrine.

Also you complain of the reasonableness standard being a function of this century, and after reversals of opinion, yet again the exclusionary rule (which you call "fruit of the poisonous tree") is also a concept of this century. Hell it wasn't even clearly applied to the states until 1961.

Either the Court has the powers defined in Article III of the Constitution, or they don't, but you can't have it both ways. Since I support and defend the WHOLE Constitution, I live with their rulings whether they are from last century, or last year.

The Real Hawkeye
June 14, 2004, 01:55 AM
The exclusionary rule is merely a judicial policy for the enforcement of the Fourth Amendment's requirement that government agents not overstep their bounds with regard to search and seizure. If police may not search and seize in a particular case, but do so anyway, the only effective way for an appellate court to make it right is to eliminate the evidence wrongly obtained, as they had no right to it to start with. Developing methods for making things right when rights are violated is what judges do. This is not making new law, but rather it is a strict application of the Fourth Amendment according to both its plain meaning and the known original intent of its framers. The original intent is that government not benefit from a violation of our rights, and that's exactly what the exclusionary rule accomplishes, i.e., preventing government from benefiting from violating our rights. This is exactly what we need more of in the Federal Courts. Instead, what we get too often is a bunch of judges deciding what outcomes they think would be best for society, regardless of the plain meaning of the Constitution and regardless of the known original intent of the framers, and then disingenuously declaring that this is what the Constitution means.

DMF
June 14, 2004, 12:06 PM
Nice try Hawkeye, but you're back-pedaling.

The Courts invented it as a way to punish LE for violating the 4th Amendment. Congress felt that passing laws that created criminal penalties for violating rights, and that civil torts were enough, but the Courts invented the exclusionary rule, and it is as binding in considering evidence as the Carroll Doctrine and Terry Frisks.

The truth of the matter is you want to cherry pick court decisions, just as you like to cherry pick the Constitution. If it suits your view of the world it's great and good, if it doesn't it horrible, unjust, or not an "orthodox interpretation."

Our system isn't perfect, but it's the best thing going.

The Real Hawkeye
June 14, 2004, 01:11 PM
Nice try Hawkeye, but you're back-pedaling.

The Courts invented it as a way to punish LE for violating the 4th Amendment. Congress felt that passing laws that created criminal penalties for violating rights, and that civil torts were enough, but the Courts invented the exclusionary rule, and it is as binding in considering evidence as the Carroll Doctrine and Terry Frisks.

The truth of the matter is you want to cherry pick court decisions, just as you like to cherry pick the Constitution. If it suits your view of the world it's great and good, if it doesn't it horrible, unjust, or not an "orthodox interpretation."

Our system isn't perfect, but it's the best thing going.DMF, your confusion in this matter, I suspect, stems from your failure to distinguish between "substantive law" and "remedial law." The Fourth Amendment is an example of substantive law, while the exclusionary rule is an example of remedial law. Judges traditionally (and this is going as far back as pre-Columbian English Common Law) have possessed a wide latitude in meeting out remedies for violations of substantive law. Let me provide you with the salient definition from Black's Law Dictionary. Here's what they have to say:
Substantive law is that part of law which creates, defines, and regulates rights and duties of parties, as opposed to "adjective, procedural, or remedial law," which prescribes methods of enforcing the rights or obtaining redress for their invasion. So, for instance, the requirement that a LEO obtain a warrant for a search would be a matter of substantive law, while the remedy for a violation of that requirement would be a matter of remedial law. This is what judges are expected to do, i.e., determine ways of redressing violations of rights, i.e., violations of substantive law. This is in their basic job description. It is an area where judges have always been allowed creativity because, traditionally, remedial law is not enacted by legislatures. It has traditionally been left to judges to determine the best methods of remedying violations of rights, i.e., violations of substantive law.

Probably the most pedigreed remedial procedure in law is what's referred to as status quo ante. This is an injunctive power inherent in the office of judge to "make whole again" someone whose rights have been violated. The power resides in the office of judge, as it defines his essential role in the American and traditional English legal systems. The exclusionary rule is merely an outgrowth of this injunctive power. The only way to make a victim "whole again," in this case, is to exclude the evidence which would not have been obtained had the LEO not invaded the victim's rights under the Constitution.

The Carroll Doctrine and the Terry Frisk, on the other hand, are the result of a creative interpretation of substantive law, which is not a power recognized in American judges (nor, for that matter, in English Common Law). It rightly belongs to legislators. This power, however, has, in recent decades, been usurped by appeals court judges, particularly in the Federal Courts of Appeals and in the US Supreme Court, which is where we get such things as the Carroll Doctrine and the Terry Frisk, both of which are matters of judicial creativity in the area of substantive law. That, in a free society, is a no no. It's the unmistakable mark of an aristocratic tyranny of the judiciary.

DMF
June 14, 2004, 01:34 PM
Gee Hawkeye, that is VERY interesting. Now could you point to any of that in the Constitution of the United States, so that I can see how it fits with your "orthodox understanding" of the Constitution?

Also, I find your references to English Common law VERY interesting. You see the Constitution was written by people that liked some things from English law, and didn't like others. The 4th Amendment being a wonderful example of their dislike for things contained in the English system.

You can find references to English Common law, references to the intents of the framers from various sources, even references to laws and customs in other countries (sure to be controversial), in various Supreme Court rulings. My question is how do they fit with your "orthodox understanding" of the Constitution? You want to allow concepts to things that are not in Constitution, but reject laws and court rulings all done according to the process defined in the Constitution. It makes no sense.

Hawkeye, reread the Constitution. It does not contain any distinction between "remedial" or "substantive" law. The Supreme Court in Article III is given the authority rule in ALL matters of law. Nowhere is their a definition or distinction over types of law. http://caselaw.lp.findlaw.com/data/constitution/article03/

Again, you are cherry picking your sources to support your view of how you think things should be rather than looking at the Constitution, the US Code and relevant case law as a whole.

The Real Hawkeye
June 14, 2004, 01:45 PM
DMF, it looks like I will never convince you. My defense of my position, however, has not in the least been damaged by what you have just said. My defense stands, as is, pristine and unassailed. It requires no alteration or addition to defeat what you have just posted. If you will reread my previous posts, you will observe that I never said that we adopted English Common Law, but only that this aspect of the US Legal System is paralleled in ancient English Common Law. That is to say, it has an ancient pedigree in our legal tradition.

PS: I am not going to provide you with an education in law. For this, please contact an accredited law school near you and find out what's needed to apply.

DMF
June 14, 2004, 02:09 PM
Your "defense" is far from "unassailed." I suggest you look up the definition of that word, because I have thoroughly and effectively attacked your position on this matter. m-w.com definition of assail (http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=assailed) m-w.com definition of un- (http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=un-)

Regarding your attempted witticism about my legal education, I assure you my education on these matters was at the hands of people that praticed criminal law both as prosecution and defense, including a few former judges, then they went into teaching. They are both great legal practitioners and scholars. So while your remark may seem witty, it's neither particularly relevant or witty.

The Real Hawkeye
June 14, 2004, 02:12 PM
My apologies for hurting your feelings. Defense, however, has rested. Move on. :rolleyes:

DMF
June 14, 2004, 02:15 PM
My feelings aren't hurt, and the "defense" should rest, because you are losing the debate.

tcsd1236
June 14, 2004, 02:20 PM
If the cop *knows* the citizen has a valid CCW permit, he knows no law is being broken by the citizen being armed. So why does the citizen need to be frisked or disarmed, voluntarily or otherwise, for the duration of the encounter?

As usual, you are assuming that just because someone has a carry permit, they are automatically a good guy who is not currently involved in some criminal activity. Criminal violations by permit holders may be small in number, but they do ocur. Someone may be a permit holder who has simply never been convicted of a disqualifying crime but who engages in illicit behavior of some sort that may, this time, be found out for the first time. There are any number of reasons.

The Real Hawkeye
June 14, 2004, 03:04 PM
Your "defense" is far from "unassailed." I suggest you look up the definition of that word.I used the word as in the phrase "unassailable argument," which, according to the American Heritage Dictionary, is defined as "Impossible to dispute or disprove."

The Real Hawkeye
June 14, 2004, 03:12 PM
DMF Said: My feelings aren't hurt, and the "defense" should rest, because you are losing the debate.I wasn't aware that you occupied both the position of prosecutor and judge. :uhoh:

spartacus2002
June 14, 2004, 11:15 PM
Hawkeye has a valid point.

The English Common-Law system was the basis for American Law. It wasn't all flushed away the moment the Constitution and/or BOR were ratified. Rather, they are the lenses thru which the pre-existing legal system are focused.

The 4th Amendment was a reflection of the right of Englishmen to be secure in their homes, and a reaction against the use of the general warrants in colonial America. The 4th Am was not a new legal theory; it reaffirmed what was supposed to exist in response to abuse.



The Supreme Court in Article III is given the authority rule in ALL matters of law

Negative; that was self-granted in Marbury v. Madison.



tcsd1236: As usual, you are assuming that just because someone has a carry permit, they are automatically a good guy who is not currently involved in some criminal activity. Criminal violations by permit holders may be small in number, but they do ocur. Someone may be a permit holder who has simply never been convicted of a disqualifying crime but who engages in illicit behavior of some sort that may, this time, be found out for the first time. There are any number of reasons.

Oh, for chrissakes. Very well: every car owner shall be stopped and breathalyzed while driving with no probable cause or reasonable suspicion or articulable suspicion, because we all know that SOME small amount of car owners drink and drive and cause death/greivous bodily harm.

Hello, ring ring: If you're talking about carry permit holders, who have gone thru extra legal hoops in order to legally carry, then you are talking about people who have demonstrated their inordinate sense of responsibility and law-abiding character. Why mess with them? Especially on the flimsy pretext of "WELL, 0.01% might be a problem..."

Quit looking at all your fellow citizens as criminals-in-waiting or get a new line of work.

The Real Hawkeye
June 15, 2004, 12:54 AM
The English Common-Law system was the basis for American Law. It wasn't all flushed away the moment the Constitution and/or BOR were ratified. Rather, they are the lenses thru which the pre-existing legal system are focused.Well said, Spartacus. The inherited legal system and tradition was largely retained, and provided the context for the Constitution rather than having been replaced by the Constitution. I particularly like your analogy to lenses and focus.

CrudeGT
June 15, 2004, 01:13 AM
Wait, we have a member names "PrudentGT"? I never knew, but now it makes me laugh, maybe he's my arch nemisis... :D


Anywho, back to the question at hand, and not the debate about what the founding fathers meant when writing on paper, Here in Utah, I've been stopped a few times since I've had my CCW. I've never had a cop take it from me, and I've never been frisked when I handed the officer my permit. most of the time they don't even ask where it is. I think that if an officer DID ask me to hand over my concealed carry, I would unload it before handing it to him. I carry an XD40, no external saftey, pull the trigger, gun goes boom. If he's not trained on it, i don't want that cop shooting himself with my gun and then the state coming after me.

The Real Hawkeye
June 15, 2004, 09:17 AM
Only time anything like that happened to me was in Vermont, but the cop didn't want the gun, only that I unload it before he began to talk to me. He asked me if I was armed with a handgun, and I said yes. Then he asked me if I wouldn't mind unloading it, so I did. Seems stupid to me, though, as a stranger drawing a gun out should make him queasier than just asking me to keep it holstered. He also could have murdered me, and had the defense that I drew my weapon first. Not a good situation no matter how you look at it.

The Real Hawkeye
June 15, 2004, 09:17 AM
Only time anything like that happened to me was in Vermont, but the cop didn't want the gun, only that I unload it before he began to talk to me. He asked me if I was armed with a handgun, and I said yes. Then he asked me if I wouldn't mind unloading it, so I did. Seems stupid to me, though, as a stranger drawing a gun out should make him queasier than just asking me to keep it holstered. He also could have murdered me, and had the defense that I drew my weapon first. Not a good situation no matter how you look at it.

CrudeGT
June 15, 2004, 04:48 PM
That's a good point. I guess if the officer is crooked enough anything is possible. If it was just a matter of the officer asking me to unload it, and reholster it, I'd probably keep one in the chamber, just in case.

DMF
June 15, 2004, 05:23 PM
The Supreme Court in Article III is given the authority rule in ALL matters of law
Negative; that was self-granted in Marbury v. Madison.
Please actually read the documents in question before you make claims that are completely incorrect.

For you edification a link to Article III. http://caselaw.lp.findlaw.com/data/constitution/article03/

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . ."

So that settles the issue of what the Constitution says about the power of the Judicial Branch.

What Marbury v. Madison said was that if there was a conflict in a case between a law passed by Congress and the Constitution, that the court must follow the Constitution in it's ruling rather than the law, because the Government must always follow the Constitution, even the legislature when creating laws.

From Marbury v. Madison Justice Marshall wrote: ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&invol=137 )
"'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.''

DMF
June 15, 2004, 05:29 PM
Well said, Spartacus. The inherited legal system and tradition was largely retained, and provided the context for the Constitution rather than having been replaced by the Constitution. I particularly like your analogy to lenses and focus.Oh so you have replaced your "orthodox understanding" of the Constitution, and plain reading of the text with lens and focus of other concepts, and ideas, not plainly written into the text? :rolleyes:

The inherited system was largely retained? BS, they used traditionals systems when forming the Constitution, but they included what they wanted and could get ratified. Everything else is open to interpretation, but you have been clear that you object to any interpretation by the courts, except of course when it fits your view of how things should be.

Since I hate to repeat myself, all of which I clearly addressed in this post:
http://www.thehighroad.org/showthread.php?s=&postid=1058569#post1058569
AND
http://www.thehighroad.org/showthread.php?s=&postid=1059819#post1059819

spartacus2002
June 15, 2004, 09:09 PM
Gee, guess my law degree is worthless. OK, DMF, I'll go ask my Constitutional Law professor for my tuition money back.:barf:

DMF
June 15, 2004, 09:17 PM
Good luck getting that money back, it appears you deserve it.

So what was incorrect about what I posted in response to you?

Hint: Since they were direct quotes from the documents being debated - the answer is NOTHING was wrong with what I posted. I guess my Con Law instruction was a little better than yours.

twency
June 15, 2004, 10:47 PM
I guess my Con Law instruction was a little better than yours.

Wow. A urinating contest between people who claim to have some degree or another of legal education.

I guess I'll join in.

As a son-of-a-lawyer (no, that's not a swear-word, although I know it seems like it should be), the brother of a lawyer, a frequent participant in discussions on the law, including Strict Constructionism, and as a law school drop-out (hated civil procedure with an unbearable passion):

Hawkeye's statements sure make sense to me.

-twency
_________
"The parent who complained, Karen Young, doesn't want fish-shaped toy guns in her house because she accidentally shot an ex-boyfriend one time when the gun she was beating him with went off."

The Real Hawkeye
June 16, 2004, 10:19 AM
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . ."

So that settles the issue of what the Constitution says about the power of the Judicial Branch.DMF, that doesn't prove YOUR point, which was that the Constitution granted the sole power of interpreting the Constitution to the Federal Courts in general, and the Supreme Court in particular. The sentence you quote refers to original jurisdiction, but then I guess you don't know the difference between original jurisdiction and appellate jurisdiction, because these terms are not defined as such in the text of the Constitution. As for appellate jurisdiction, the extent of it belonging to the Federal Courts is entirely at the pleasure of Congress. The Congress can even declare all Federal Courts (except the Supreme Court) dissolved, and so limit the Supreme Court as to deny ALL appellate jurisdiction. (See Art III, sections 1 and 2)

dev_null
June 16, 2004, 10:20 AM
Is this pissing contest going anywhere? Seems to me it's outlived its shelf-life.

Is there a moderator in the house?

- 0 -

The Real Hawkeye
June 16, 2004, 10:22 AM
Hawkeye's statements sure make sense to me.

-twencyThanks, twency. By that statement alone, I can tell that you are wise indeed. :D

The Real Hawkeye
June 16, 2004, 10:28 AM
Oh so you have replaced your "orthodox understanding" of the Constitution, and plain reading of the text with lens and focus of other concepts, and ideas, not plainly written into the text?

The inherited system was largely retained? BS, they used traditionals systems when forming the Constitution, but they included what they wanted and could get ratified. Everything else is open to interpretation, but you have been clear that you object to any interpretation by the courts, except of course when it fits your view of how things should be.DMF, the Constitution is made up of words. Many of those words are legal terms. Each legal term has a history and a meaning. Since they are not defined in the text of the Constitution, how do you suppose that we know what they mean? It's because we have adopted a preexisting legal tradition. This tradition, however, doesn't stand alone. It is focused through the lens of the Constitution. That's the relationship between our inherited legal tradition and the Constitution.

DMF
June 16, 2004, 12:13 PM
DMF, that doesn't prove YOUR point, which was that the Constitution granted the sole power of interpreting the Constitution to the Federal Courts in general, and the Supreme Court in particular. The sentence you quote refers to original jurisdiction, but then I guess you don't know the difference between original jurisdiction and appellate jurisdiction, because these terms are not defined as such in the text of the Constitution. As for appellate jurisdiction, the extent of it belonging to the Federal Courts is entirely at the pleasure of Congress. The Congress can even declare all Federal Courts (except the Supreme Court) dissolved, and so limit the Supreme Court as to deny ALL appellate jurisdiction. (See Art III, sections 1 and 2)Hawkeye, the jurisdiction distinctions of paragraph 2 in Section 2 does not change the fact that spartacus2002 was completely incorrect about the powers of the Judicial branch and the decision of Marbury v. Madison. Also, the cases we have been debating including Terry v. Ohio are appellate. So while your point about the difference between appellate and original jurisdiciton still doesn't change the powers of the court as defined in paragraph 1 of Section 2, nor does it limit their power in any of the cases we have discussed.

DMF
June 16, 2004, 12:52 PM
DMF, the Constitution is made up of words. Many of those words are legal terms. Each legal term has a history and a meaning. Since they are not defined in the text of the Constitution, how do you suppose that we know what they mean? It's because we have adopted a preexisting legal tradition. This tradition, however, doesn't stand alone. It is focused through the lens of the Constitution. That's the relationship between our inherited legal tradition and the Constitution. Again, Hawkeye I have only been pointing out your hypocrisy on this issue. You only subscribe to that philosophy when it suits your. Reference our discussion of the exclusionary rule. Again, when the courts rulings, and use of legal traditions suit you, then your are all for that philosophy, when it doesn't you start ranting about "orthodox understandings" and "creating law out of whole cloth."

The Real Hawkeye
June 16, 2004, 01:00 PM
Hawkeye, the jurisdiction distinctions of paragraph 2 in Section 2 does not change the fact that spartacus2002 was completely incorrect about the powers of the Judicial branch and the decision of Marbury v. Madison. Also, the cases we have been debating including Terry v. Ohio are appellate. So while your point about the difference between appellate and original jurisdiciton still doesn't change the powers of the court as defined in paragraph 1 of Section 2, nor does it limit their power in any of the cases we have discussed.Marbury v. Madison established the precedent that the Supreme Court is the final authority on the meaning of the Constitution. It does not need to spell this out. By what they did, they established the precedent. They assumed a power not granted by the Constitution, and nobody challenged them on it. That was his point

The Real Hawkeye
June 16, 2004, 01:10 PM
Again, Hawkeye I have only been pointing out your hypocrisy on this issue. You only subscribe to that philosophy when it suits your. Reference our discussion of the exclusionary rule. Again, when the courts rulings, and use of legal traditions suit you, then your are all for that philosophy, when it doesn't you start ranting about "orthodox understandings" and "creating law out of whole cloth."And again, you are mistaken. I need not "utter," as it were, another word. My words already in this thread stand as the best possible testament to my logical consistency. I would ask you to post, side by side, quotes from my posts which you believe demonstrate logical inconsistency or hypocrisy.

DMF
June 16, 2004, 05:33 PM
Hawkeye I don't like to repeat myself. Go back to my post about the exclusionary rule, and your objection to the Court creating law "out of whole cloth." You showed your hypocrisy plain as day, and I see no need to repeat that post.

The Real Hawkeye
June 16, 2004, 06:01 PM
Hawkeye I don't like to repeat myself. Go back to my post about the exclusionary rule, and your objection to the Court creating law "out of whole cloth." You showed your hypocrisy plain as day, and I see no need to repeat that post.DMF, you just proved my point. How long did you sweat over this one before you took the easy way out? I didn't ask you to repost anything. Just provide two quotes of mine, side by side, which demonstrate my logical inconsistancy and/or hypocrisy.

DMF
June 16, 2004, 06:30 PM
I already did that in that post about the exclusionary rule. You contradicted yourself in the very same post and I already pointed it out.

http://www.thehighroad.org/showthread.php?s=&postid=1058569#post1058569



Originally posted by The Real Hawkeye (June 13th, 2004 07:24 AM):

. . . The power to manufacture new law "out of whole cloth," however, divorced from the democratic process, is the very definition of tyranny. . .

. . . I am a believer in the notion that police work and convicting people of crimes ought to be very difficult, requiring government agents to abide by the letter of the Constitution. I am, therefore, a believer in the "fruit of the poisonous vine" doctrine. If government can benefit from violating rights, they are going to do it regardless of penalties. The evidence must be thrown out, along with all evidence that the discovery of that evidence led to. . . (SIC) emphasis added

Here again is the flaw in your approach to these matters. The "exclusionary rule" or "fruit of the poisonous tree" doctrine, which you love violates your so called "orthodox understanding" of the Constitution. No where in the Constitution will you find the exclusionary rule, in no part of the US Code will you find it either. It was a concept completely created by the courts. . .

See the link provided for the proof of my response to your quotes. You want government agents (which includes legislature, and the judiciary) to abide by the letter of the Constitution in this post, and you say you don't want the Court creating new law, allegedly divorced from the democratic process. However, you also say you're a fan of the exclusionary rule, which was entirely created by the Court.

After saying this, and it was pointed out, you then start talking about "focusing the lens" on the Constitution rather than abiding by the letter of the Constitution. HYPOCRISY both in that that quote, and your attempts at rebutting my response.

The Real Hawkeye
June 16, 2004, 07:04 PM
Originally posted by The Real Hawkeye (June 13th, 2004 07:24 AM):

. . . The power to manufacture new law "out of whole cloth," however, divorced from the democratic process, is the very definition of tyranny. . .

. . . I am a believer in the notion that police work and convicting people of crimes ought to be very difficult, requiring government agents to abide by the letter of the Constitution. I am, therefore, a believer in the "fruit of the poisonous vine" doctrine. If government can benefit from violating rights, they are going to do it regardless of penalties. The evidence must be thrown out, along with all evidence that the discovery of that evidence led to. . .In the first quote, I assert that I oppose the abuse of judicial power to manufacture new law out of whole cloth, and in the second, I state that I believe the courts, using their injunctive powers, should prevent government agents who violate our Constitutional rights from benefiting from said violation, as to cause illegally obtained evidence to be thrown out. The exclusionary rule is an exercise of this injunctive power. This power is not new, or manufactured out of whole cloth. It is as old as the hills, dating back many centuries before our own Constitution. It is a power always recognized as properly belonging to judges in our legal tradition. When the word "judge" is used in the Constitution, the founders were referring to the folks who hold said power to "make whole" those who have had their legal rights violated.

Please specify precisely what the nature of the contradiction is that you believe you are detecting. Otherwise, as a gentleman, you ought not go around calling people hypocrites.

DMF
June 16, 2004, 07:09 PM
I have made my case, made it well and this is redundant. I am a gentleman, and whether or not that is your opinion of me I do not care. You are a hypocrite, as this thread clearly shows, and until you present something new rather than repeating the same worn out arguments, I am done.

The Real Hawkeye
June 16, 2004, 07:15 PM
I have made my case, made it well and this is redundant. I am a gentleman, and whether or not that is your opinion of me I do not care. You are a hypocrite, as this thread clearly shows, and until you present something new rather than repeating the same worn out arguments, I am done.Whether or not someone is a gentleman is self-evident by their words and actions. It is not a simple matter of declaring it to be the case.

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