I wonder if this ruling could also force the courts to start addressing unconstitutional civil forfeiture
...
Oh, wait, did I say "police seizes"?
I meant of course "government replenishes guarantees and underwrites".
When it comes to interpreting the constitution, conservatives likewise tend to be focused on the point of view at enactment. But it’s even more of a fiction to say that the states had a single point of view, and in any case, the text of the constitution often isn’t precise in the way contemporary statutes are. So the conservatives are guided more strongly by the historical evidence about what the sovereign states would have “understood” themselves to be giving up, in replacing the Articles of Confederation with a central federal government.
Given that, they interpret the Fourth Amendment by reference to the historical evidence of what phenomena it was responding to. And as a historical matter, the aim of the amendment was to require warrants, not to narrow the scope of what could be searched or seized. So where there’s probable cause that a crime has been committed, a warrant may issue, and it can be directed at the property that “committed” the crime, since that was a known practice in English law at the time.
I find it ironic that they view the Constitution as "at the time the law was enacted" and continue to rule on literalism that way, even though those same people explicitly specified that laws and the Constitution should be reviewed, revised, and otherwise be interpreted as appropriate for that time, not the time of writing.
There's never really an explanation as to why "we have to treat these things like infallible perfect works" when they're not, and even their authors told us they're not.
They are not, though. The constitution can be changed and has been changed many times in the past. I assume they think (or justify their decisions by saying that at least) that it’s not their job to pass legislation or enact constitutional amendments without any input from the states/congress which seems like a reasonable viewpoint.
They don't treat the law as perfect, they just believe they don't have the leeway to reinterpret the law as they want in contradiction of the text. The law doesn't work if justices can read between the lines to get what they want.
SCOTUS certainly hasn't interpreted it "as written", but has been happy to "evolve" it.
That's a good question. And the answer is yes.
At the time it was written, that phrase would roughly mean well-organized, well-armed, well-disciplined. Not regulated in the way we use the term today, to refer to something governed by regulations.
"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."
Maybe you'd be happier if it said:
"The right of the people to keep and bear Arms while they are members of a well-regulated militia shall not be infringed."
I am sympathetic to both sides of the jurispredential pragmatism/literalism question, but don't get your eggs twisted about what the 2nd amendment says, as only the most alien of consciousnesses could find ambiguity in its terse declaration.
So maybe we need the well regulated Militia, because that seems absent, though the Constitution says it is necessary.
There’s absolutely no objective basis for this statement whatsoever.
The Supreme Court is a political body and always has been. The current rhetorical fiction that it’s some other thing is really a relic of the post-war era that became cemented because it has been a helpful fiction for both sides at various points.
The sooner we retire the nonsense idea that the court is doing anything other than make politically calculated decisions the better off we will all be.
Supreme Court justices make decisions the same way every other political actor in our system does. Because they want to, because they can get away with it, and because their constituencies and supporters demand and incentivize it.
Reason has a good analysis. This recent case was about preliminary hearings in civil asset forfeiture cases in which it was ruled 6-3 that preliminary hearings weren’t required in such cases, but if you read into Gorsuch’s concurring opinion, it looks a lot like he believes civil asset forfeiture is over applied and shouldn’t be used outside of exigent circumstances like those covered under admiralty, customs and revenue law where a ship might leave American jurisdiction before a proper hearing could be held on the asset.
So… with the right case brought before them, the current SCOTUS bench might be ready to gut civil asset forfeiture like a trout.
[1] The 27th Amendment took a different path compared to the other 16 amendments ratified since the Bill of Rights. It was originally proposed as part of the first 12 amendments but took 202 years to be ratified. This was largely due to the efforts of a University of Texas student in the 1980s, who, motivated by a C grade on a paper, embarked on a mission to see it finally adopted.
So while this might be a very old bug in the Rule of Law, it got much worse during the 20th Century.
I remember that same day a dad came in. The State had his new $60K SUV they were trying to sell. His son had swiped the keys, taken it, got caught drunk-driving. The DAs were like "well, tough shit, it's the law" and that judge said "Did this man know his son took the car? Does he have valid insurance? Give this man his damned car back. And I want you to pay all his towing and storage fees too." "His towing fee too?" "Yes" "We don't even know how to refund that, the city has that money." "Well, you have an hour to find out. See you in an hour." LOL
If you are ever caught up in a civil forfeiture, make sure to stay on top of the paperwork. Most people lose their stuff by not doing the very simple paperwork. If you get to the first court hearing the State often gives up if it's not much value.
I thought to myself why would one business be able to seize anothers property?
How does a private company deserve Eminent Domain powers?
Is a Funeral Home not a Public Good too?
Why would we allow emminent domain for a monolopy company.
https://www.13newsnow.com/article/news/local/mycity/virginia...
They were offering the Funeral Home $20K for 'air rights'. No poles. Seems cheap if you feel you will need to shutdown the business.
https://landownerattorneys.com/can-private-companies-use-emi...
As Justice Sandra Day O’Connor wrote “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
After all of this, the land didn't get built into a corporate campus:
>...For nearly 20 years since the ruling, the entire Fort Trumbull neighborhood remained a vacant lot after being bulldozed by the city; a neighborhood once teeming with families who resided there for generations was home only to weeds and feral cats. The economic development the city promised the U.S. Supreme Court would materialize—if only the government could get its hands on the land—never materialized, even after spending more than $80 million in taxpayer money.
https://en.wikipedia.org/wiki/Kelo_v._City_of_New_London https://ij.org/case/kelo/
One of the mechanics at play is suing the property itself, which can’t defend itself for rather obvious reasons. That side steps any property rights with jurisdiction in rem: https://en.m.wikipedia.org/wiki/United_States_v._%24124,700_...
IANAL but it’s as stupid as it sounds and it’s been controversial (i.e. United States v. Approximately 64,695 Pounds of Shark Fins)
(6th Amendment)