Fiedor Report on the News
A Weekly View from the Foothills of Appalachia
June 17, 2001 #232
by: Doug Fiedor
E-mail to: firstname.lastname@example.org
Copyright © 2000 by Doug Fiedor, all rights reserved
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NEW RULE FOR HOME SURVEILLANCE
The ability to see through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development. The National Law Enforcement and Corrections Technology Center, a program within the United States Department of Justice, features on its Internet Website projects that include a Radar-Based Through-the-Wall Surveillance System, Handheld Ultrasound Through the Wall Surveillance, and a Radar Flashlight that will enable law officers to detect individuals through interior building walls.(1) Some devices may emit low levels of radiation that travel through-the-wall, but others, such as more sophisticated thermal imaging devices, are entirely passive, or off-the- wall.
So reported the United States Supreme Court last week in Footnote 3: of Kyllo v. U.S. (99 -- 8508). The Supreme Court also informed government that, henceforth, all of these new devices will require a search warrant before they can be used.(2)
Justice Scalia delivered the opinion of the Court. In itself, this is interesting because Scalia usually sides with the police. The writing is easy to read and straight to the point.
Generally speaking, the Court said that if the average person can see something illegal in or around a home while driving (or flying) by, that information may be used in court. However, no equipment not available to the average person may be used by police without a search warrant.
The decision of the Court is clear:
This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a search within the meaning of the Fourth Amendment. . . .
Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioners home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U.S.C. § 841 (a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.. . .
The Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house; it did not show any people or activity within the walls of the structure; [t]he device used cannot penetrate walls or windows to reveal conversations or human activities; and [n]o intimate details of the home were observed. . . .
The Ninth Circuit Court of Appeals gets overturned by the Supreme Court a lot. Herein, the U.S. Supreme Court shows why the Ninth Circuit was overturned this time.
The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he had, there was no objectively reasonable expectation of privacy because the imager did not expose any intimate details of Kyllos life, only amorphous hot spots on the roof and exterior wall. . . .
We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a search -- at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information (Footnote 2) obtained by the thermal imager in this case was the product of a search.
In Footnote 2, Justice Scalia writes: The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.
So, at least where our homes are concerned, the Fourth Amendment still applies. According to the Court: At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. . . . The Fourth Amendments protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, by even a fraction of an inch, was too much (365 U.S., at 512), and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, _all_ details are intimate details, because the entire area is held safe from prying government eyes.
And so there comes a new rule for surveillance by all agents of government: If they cannot see evidence by eyeball, without violating the sanctity of the home and the privacy of the residents, the information may not be used to either obtain a search warrant or as evidence in court. This rule should be very simple for them to remember.
We have said that the Fourth Amendment draws a firm line at the entrance to the house, (Payton, 445 U.S., at 590). That line, we think, must be not only firm but also bright -- which requires clear specification of those methods of surveillance that require a warrant.
The Court should also extend this to our persons, papers and effects, as the Founding Fathers intended.
GUN LAWS: ONE ORIGIN
One useful fact all Americans should keep in mind is that they have no right to be protected by the police. American police are reactive, not proactive. They dont prevent crime. They catch lawbreakers after they have committed a crime.
This was by design of the Founding Fathers. Because, in order to prevent crime, police would need all sorts of obnoxious powers that would trample all over our rights of life, liberty and property.
Instead, Americans were intended to have the means of self defense. Put another way, the Constitution does not grant the federal government the authority to restrict American citizens from keeping and bearing arms. Rather, the Second Amendment clearly instructs those in government that the right of the people to keep and bear Arms shall not be infringed.
James Madison wrote in The Federalist Papers #46: Americans have the right and advantage of being armed -- unlike the citizens of other countries whose governments are afraid to trust the people with arms.
Thomas Jefferson also recognized the need for citizens to be armed: A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks. (Encyclopedia of T. Jefferson, 318 [Foley, Ed., reissued 1967])
As late as the 1960s, members of Congress agreed that the American people have an inherent right to keep and bear arms. Even the most liberal Democrats recognized that right: Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to keep and bear arms. This is not to say that firearms should not be carefully used and that definite safety rules of precaution should not be taught and enforced. But the right of the citizens to bear arms is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.
That was Senator Hubert H. Humphrey(1), later to become Vice President under L.B. Johnson.
Even in the 1980s, Senators were grudgingly admitting that a private citizen has the right to own and carry firearms. According to the Subcommittee on the Constitution of the Senate Judiciary Committee, Senator Orrin Hatch (R-UT), chairman, in the Report of the Subcommittee On The Constitution of the Committee On The Judiciary, United States Senate, 97th Congress, second session (February, 1982): The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.
So, what happened? If these Senators knew perfectly well that the American people have a Constitutionally protected right to keep and bear arms, why did they turn tail and allow all those unconstitutional gun control laws to be enacted? Or, perhaps we should ask: Why is there no punishment for those lawmakers, judges and bureaucrats who knowingly and intentionally violate the Constitution? Are they now above our Constitution?
Anyway, there is a very interesting story behind the federal gun control scheme. Over the years, some have said that the federal gun control laws smelled a lot like the old Nazi gun control laws. And, they do.
Apparently, the U.S. Gun Control Act of 1968 has quite a lot in common with the Nazi Weapons Law of 1938. It has a whole lot in common, as a matter of fact!
One popular gun rights group looked up the old Nazi law and compared it with the U.S. Gun Control Act of 1968. As they report:
Members of Jews for the Preservation of Firearms Ownership (JPFO) consider gun control to be an aggressive cancer. JPFO has a cure, a way to destroy gun control. JPFO has hard evidence that shows that the Nazi Weapons Law (March 18, 1938) is the source of the U.S. Gun Control Act of 1968 (GCA 68). Adolph Hitler signed the Nazi Weapons Law. The Gestapo (Nazi National Secret Police) enforced it. In Gun Control: Gateway to Tyranny we present the official German text of the Nazi Weapons Law and a side-by-side translation into English. Even more deadly: a side-by-side, section-by-section comparison of the GCA 68 with the Nazi Weapons Law. If you have this in your hands, no one can tell you that you're imagining things.
It gets even better, though: The clincher: JPFO knows who implanted into American law cancerous ideas from the Nazi Weapons Law.
JPFO is hopping mad about this, as we all should be. They present evidence and name the names of those in government who spearheaded this treacherous nonsense. Some people named are still on Capitol Hill.
For a great outline of the story (and names), visit the JPFO web site.(2) If you are interested in Constitutional issues and your right as an American to keep and bear arms, you will find this page very interesting.
Then comes the problem: How do we correct it?
1. Know Your Lawmakers, Guns Magazine, February 1960
HALT UNCONSTITUTIONAL REGULATIONS
Lets poke a little legal fun at the federal demands forced upon the States -- nuisance laws and regulations pertaining to things like mandating seat belts, drinking age, air quality control, wetlands, medical treatment, marijuana, education, gun laws, etc. This is easy to do, actually, because the United States Supreme Court already did most of the legal work for us.
For instance, in New York vs. U.S.(1) Congress ordered that States not conforming to their federal plan must take title to all low-level radioactive waste material generated within their state and make arrangements for disposal. The argument between governments is not important. The Supreme Courts decision, on the other hand, is very important.
The Court said that it didn't matter that members of State government initially agreed with parts of the federal plan. What matters is that the federal plan departs from the Constitutional separation of powers:
Also rejected is the sited state respondents argument that the Act cannot be ruled an unconstitutional infringement of New York sovereignty because officials of that State lent their support, and consented, to the Acts passage. A departure from the Constitutions plan for the intergovernmental allocation of authority cannot be ratified by the consent of state officials, since the Constitution protects state sovereignty for the benefit of individuals, not States or their governments, and since the officials interests may not coincide with the Constitutions allocation. Nor does New Yorks prior support estop it from asserting the Acts unconstitutionality.
Then, the Court goes on to say that Congress may not compel States to regulate. And, the Court is actually rather clear in its meaning in this opinion:
We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments regulation of interstate commerce.
And, carrying that thought on a little further, the Court said that, even if State officials agree with the will of Congress (or the regulatory agencies), when it is not a Constitutional function of the federal government it is not legal:
Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the consent of state officials. An analogy to the separation of powers among the Branches of the Federal Government clarifies this point. The Constitutions division of power among the three Branches is violated where one Branch invades the territory of another, whether or not the encroached-upon Branch approves the encroachment. . . . The constitutional authority of Congress cannot be expanded by the consent of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States.
Or, to put it more succinctly: State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.
How then may States be forced to enforce seat belt laws, speed limits, education regulations and all those federal environmental rules and regulations? The fact is, States cannot legally be forced to enforce these federal government laws.
In the New York opinion, the Supreme Court reaffirmed the Tenth Amendment for the other two branches of the federal government. But no one listened:
States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead leaves to the several States a residuary and inviolable sovereignty, (The Federalist No. 39), reserved explicitly to the States by the Tenth Amendment. . . .
Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program.
Still today, the federal government does, of course, compel States to enact and administer many regulatory programs. However, as we see, that is a direct violation of our United States Constitution by officials in both the federal and the State governments.
Then came the Lopez opinion(2), which concerned the carrying of a gun near a school zone. The federal government tried to say that it may regulate the gun because it was once in interstate commerce. The Supreme Court, however, did not agree:
To uphold the Governments contention that [the Gun-Free School Zones Act of 1990] is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
An object is not in interstate commerce when it is in the hands of the owner, within a State. And, if the object is not in interstate commerce, it may not be regulated by the federal government. Furthermore:
Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitutions enumeration of powers does not presuppose something not enumerated (Gibbons v. Ogden), and that there never will be a distinction between what is truly national and what is truly local (Jones & Laughlin Steel). This we are unwilling to do.
This Court opinion becomes very interesting when we consider all of the federal laws, rules and regulations concerning automobiles, education, medical supplies, and now even toilets. As the Court says, these are State issues, not federal.
The Printz opinion(3) concerns the federal governments mandate that county sheriffs perform background checks to screen purchasers of handguns (the Brady Bill).
Unfortunately, this is a very narrow opinion due to the way it was presented to the Court. Still, it is a very important opinion because it shows the Courts impatience with Congress continued usurpation of States rights. Herein, the Supreme Court clearly orders that the federal government may not compel State officials to enforce federal regulations. Again, the Court was very clear and concise in its opinion:
The Constitutions structure reveals a principle that controls these cases: the system of dual sovereignty. Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution's text. . . . Finally, and most conclusively in these cases, the Courts jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program.
In Printz, the Supreme Court went beyond the case a little and even mentioned federal regulatory programs that are tied to grants and federal funds. And, while the Court did not exactly forbid these schemes by program name, it did clearly state that they do not conform to Constitutional tradition:
Even assuming they represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative [proof -- ed.] than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice.
And there it is, folks. Just from a small part of three Supreme Court opinions we have squelched nearly half of the federal regulatory programs.
From New York we learned that the federal government may not compel States to enact and regulate federal programs that are not within those enumerated powers given to the federal government by the Constitution. And, even if consent for the federal program is ratified by State officials, it is still unconstitutional because it would act to increase the powers of the federal government and diminish those of the States.
Then from Lopez we learned that the federal government may not regulate objects when they are no longer in interstate commerce. That type of police power belongs strictly to the States.
And in Printz we learned that the federal government may not compel State officials to enforce a federal regulatory program. Furthermore, even if the State is enticed into a federal program with money from federal grants or funds, it is still a violation of the Constitution -- by both State and federal authorities.
This information is important to State legislators throughout the country. For, to violate these United States Supreme Court opinions is equivalent to a direct violation of the United States Constitution -- and hence, their oath of office.
The above is the law of the land at this time. All we, as citizens, need to do is to figure out some way to get that law enforced. Unfortunately, there are no penalties for public officials who violate the supreme law of the land. We need to work on that problem.
ONE MAN, MAKING A DIFFERENCE
Some think that one person cannot make a difference. Well, here comes a middle aged Cincinnati man to prove how wrong that is.
Don was born and raised in Cincinnati. He has worked as a bus driver in the city for 33 years. But, Dons background is not the real story here. Its Dons upbeat and friendly attitude people notice. Well . . . that, and the way Don presents himself politically.
Few residents even know Dons last name. Thats not important, either. Everyone knows Don by his nickname: Sensible Don. Mention the name Sensible Don anywhere in the metropolitan area and the politically astute people and/or talk radio listeners will know exactly to whom you are referring.
Unlike politicians in Cincinnati, Sensible Don says what he means and means what he says. Don was tagged with the moniker Sensible Don simply because he is not afraid to relate a style of pure common sense not usually heard in public discourse in Cincinnati. Better yet, he does so frequently, on various area radio stations.
The black population listens to Sensible Don because he is black. Nearly half of the population in the black community must quietly wish they had the intestinal fortitude to state their real feelings publicly, as Sensible Don regularly does. But, for various reasons, they fear the repercussions.
Yet people cant help but notice that the more the area liberals and obstructionists call Sensible Don names, the more he seems to speak out.
The white community likes Sensible Don simply because he makes sense. He tells it like it is, no matter whose toes may be momentarily stepped on.
WLW and WKRC radio like Sensible Don to call in because he is very, very popular with listeners. I have actually seen people in neighboring States stop what they were doing to listen when Sensible Don comes on the air. Truly, the man has a large following that transcends the confines of things like race, religion and political parties.
As the old saying goes: If common sense were common, everyone would have some. Unfortunately, common sense is a short commodity in Cincinnati politics. That, in itself, makes Sensible Don a very bright light in and around the Queen City.
Today, there are a growing number of people in Cincinnati who wish Don was promoted -- like maybe to the position of the next Cincinnati mayor. However, political office does not seem to be in Dons personal plans.
For a glimpse of how one sensible man is making a real difference in his community, visit the new web site posted for Sensible Don.(1) Some of how he handles the ever-present nay-sayers is evident in the forum section there. Some of us might learn a sensible lesson on handling the socialist obstructers from Sensible Don. Too bad we cant all also hear him when hes on the radio.
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