Just because guns are involved doesn't automatically make it a 2nd Amendment issue. The issue was over the government
taking the firearms from the houses with or without permission. (citing the two examples previously given) The act of the government taking the firearms is an issue of the 4th Amendment.
Now, the police didn't have a warrant but did they have probable cause?
Did that probable cause stem out of the fact that they were being shot at and were trying to protect themselves and those who could potentially be looted?
4th Amendment wrote:
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.
(emphasis mine)
Caselaw wrote:
The purpose of the probable-cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed is thereby wholly aborted.
Source:
http://caselaw.lp.findlaw.com/data/cons … 04/05.htmlReference to footnote 142 is found in the case of Berger v. New York
So, the police had probable cause that guns were being used to shoot at police officers and rescue helicopters. Therefore to protect themselves and the lives of others, they seized the guns of all citizens.
Caselaw wrote:
Additional issues arise in determining the validity of consent to search when consent is given not by the suspect but by a third party. In the earlier cases, third party consent was deemed sufficient if that party ''possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.'' 85 Now, however, actual common authority over the premises is no longer required; it is enough if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search. 86
(emphasis is mine)
source:
http://caselaw.lp.findlaw.com/data/cons … /04.html#1(^^^^ under "Consent Searches")
Footnote 85: United States v. Matlock, 415 U.S. 164, 171 (1974)
Footnote 86: Illinois v. Rodriguez, 497 U.S. 177 (1990)
IRONCHEF wrote:
You don't have ANY right whatsoever to remove firearms from abandoned or momentarily empty homes.
Okay, let me refer you to this same site I have been using. Seems pretty reliable.
Caselaw wrote:
police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause.
Now, could not the government make the argument that these "abandoned homes" equated to "vacant lots"?
Applicable Caselaw: 389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973) (citing Hester approvingly). 466 U.S. 170 (1984)
Fox News wrote:
Police have said they took only guns that had been stolen or found in abandoned homes.
The good faith portion of the exclusionary rule of the 4th amendment will probably apply here.
Moving on....
The case by the NRA and the Second Amendment Foundation is civil. Thus we move to the Exclusionary Rule of the 4th Amendment.
Caselaw wrote:
Police officers have available to them the usual common-law defenses, most important of which is the claim of good faith. 165
Source:
http://caselaw.lp.findlaw.com/data/cons … 04/06.htmlFootnote 165: This is the rule in actions under 42 U.S.C. Sec. 1983, Pierson v. Ray, 386 U.S. 547 (1967)
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I wanted to get into the effects of the 2nd Amendment on this situation but I honestly don't have the time. Maybe later today.
It looks like the NRA wants to play the 2nd Amendment card but the government is going to play the 4th Amendment card. There is more on the Case Law website but as I said, I don't have time.
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Not that I agree with what the government did at all. Just making another argument. I would like to see how this unfolds because the government gets away with enough illegal searches and seizures, I would like to see the proceedings of the case and the end result.