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Constitutional right to privacy a figment of imagination
Houston Chronicle ^ | January 15, 2005 | JUDGE HAROLD R. DEMOSS JR.

Posted on 01/15/2006 8:59:46 AM PST by Dog Gone

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To: narby
So when the Second gives the citizens the right to keep and bear arms, it is an absolute right of all citizens of the various states, and has been since it was ratified.

No, this is just plain wrong. Prior to the adoption of the XIV Amendment the entire Bill of Rights applied only to the federal government. After the adoption of the XIV Amendment the SCOTUS gradually started the Nationalization of the Bill of Rights and gradually applied more and more of its provisions against the states. Compare Bute v. Illinois, 333 U.S. 640 (1948) (Due process and the BoR does not require states to provide counsel or to determine whether the defendant wants counsel. State courts are not bound by the procedures that federal courts are bound to follow.) with Gideon v. Wainwright, 372 U.S. 335 (1963) (The "right to counsel" is fully applicable against the states). Wolf v. Colorado, 338 U.S. 25 (1949) (the states don't have to follow the exclusionary rule) with Mapp v. Ohio, 367 U.S. 643 (1961). However the SCOTUS NEVER incorporated some provisions of the Bill of Rights, among them the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries (Burch v. Louisiana) and the Second Amendment.

121 posted on 01/15/2006 2:57:33 PM PST by Tarkin (Janice Rogers Brown for President!)
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To: don asmussen
"Good grief robby, read the 2nd."

Why? What does the second amendment to the U.S. Constitution have to do with the City of Chicago's gun laws? Tell me specifically how it applies.

Then tell me why Chicago's gun laws, and New York's, and LA's have NEVER even been challenged as a violation of the second amendment. NEVER.

122 posted on 01/15/2006 3:00:16 PM PST by robertpaulsen
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To: Tarkin
I'm not exactly sure what generates the fear of courts entering into the 'privacy rights' issue as it applies to legislative actions.  The courts do this all the time when it comes to first and second amendment rights.  Why should the other rights clauses be sacrisanct to lefislative bodies?

There have been a number of comments on this thread that relate to there being reasonable exceptions to rights to privacy, the general welfare and crime being two.

I do believe the Fourth Ammendment establishes privacy rights.  If it does not, then all manner of abuses are free to flow in where rights recede.

1. Situation one finds a local Police Chief under pressure from a local power player, to uncover information what would help his business.  If the Fourth Ammendment does not guarantee privacy, then there's nothing to stop the Police Chief from directing his officers to enter a business at will, search for and document private information.  This is clearly wrong.  It is clearly forbidden by the Fourth Ammendment.  The owner of the business in question, must be assured his papers are private and not the subject of abuse.

2. A couple likes to take risque photos in their bedroom.  They develop a small collection of private materials.  They also have private banking and other papers.  When they leave on vacation, they have every right to expect their private documents not to be riffled by neighbors or authorities.  If any of this information were to be discovered as having been pilfered or having shown up on the internet, the couple would have every right under the constitution to demand criminal prosecution.

3. The leftist Mayor in a small sized town makes it his goal to remove all weapons from the citizens in his jurisdiction.  Leaving aside the Second Ammendment rights for a moment, the Mayor cannot demand his police chief have his men go door to door in order to go inside and do a physical inspection.  If a citizen is deemed to have a weapon, the police may obtain a warrant and enter for reasonable cause.  If challenged, they will have to explain what reasonable cause justified the warrant.  And if their case is weak, those associated with this action are open to prosecution.

In certian circumstances, it is agreed that these rights may be infringed at times due to special circumstances.  It is not expected that under the normal course of daily activity, citizens should have to be subject to abuse of these rights to privace.  I do consider them privacy rights.  They clearly are.

Citizens of the United States do have a right to privacy.  We are not subject to our government, except as laws are violated, or a clear and present danger to the community exists.

Let's remember something.  In our nation we grant power to the government.  The government does not grant power to us.  Government answers to the people.  We must not lose sight of that fact, or we are no better than any other nation.
123 posted on 01/15/2006 3:00:23 PM PST by DoughtyOne (01/11/06: Ted Kennedy becomes the designated driver and moral spokesperson for the Democrat party.)
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To: IronJack
The Ninth Amendment principle, that enumerated rights in the Constitution do not disparage other rights retainged by the people

The Ninth Amendment was meant as a constriant on federal power - not as a justification for expanding such. If the Ninth and the Tenth are treated as a tandem, as they should be, abortion should have remained a matter for the states. Only by taking an activist view of the Ninth, as happened with Griswold, can such a view be used to supercede both state laws and the Tenth.

124 posted on 01/15/2006 3:03:23 PM PST by dirtboy (My new years resolution is to quit using taglines...)
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To: Richard-SIA
"Let me put it this way, We have the right to do any thing we please that is not specifically illegal!"

Wow! So we have the right to do any thing we please unless the government says we can't.

Some rights.

125 posted on 01/15/2006 3:04:44 PM PST by robertpaulsen
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To: dpa5923
"So my right is infringed."

Think of it as "reasonably restricted".

126 posted on 01/15/2006 3:07:49 PM PST by robertpaulsen
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To: robertpaulsen; Everybody
paulsen misinforms:

States (actually the citizens of the states) decide which of these natural rights they will protect and to what extent.

Simply not true. Both Article VI & the 14th specifically address this issue, making clear that States are bound to support the US Constitution and the individuals rights protected therein.

In Chicago, you have a right to defend yourself, but not with a gun.
-- how is it possible that some states allow concealed carry and some don't?
How is it possible that some cities actually ban the ownership of handguns?

By igoring the clear words of the Constitution, combined with the failure of our President, Congress, and Courts to insist that they cease such prohibitions. --- The 'majority will' is operating to infringe on our RKBA's, urged on by 'democratic' folks like you.

What happened to Equal Protection and Due Process?
(Answer: The second amendment doesn't apply to the states, only the federal government. Gasp!)

Yes robby [gasp], we here at FR are no longer shocked at your refusal to support the Constitutions 2nd Amendment as the Law of the Land.

Make you proud?

127 posted on 01/15/2006 3:08:14 PM PST by don asmussen
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To: narby
The second was not limited in scope as the first was to laws that Congress passes. The second was a right given to the people, and the 14th explicity extended all rights given by the BOR to the citizens of states.

This is just wrong!

BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

As you can see it was universally understood prior in the early days of the Republic that the BoR applied only to the fedgov.

As to the "incorporation". Well, even during the heyday of the Warren court it never went as far as to claim that the entire BoR was incorporated and applies to the states. Surely you don't want to be in the same league with "Wild Bill" Douglas ;-).

128 posted on 01/15/2006 3:08:31 PM PST by Tarkin (Janice Rogers Brown for President!)
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To: narby
The second was not limited in scope as the first was to laws that Congress passes. The second was a right given to the people, and the 14th explicity extended all rights given by the BOR to the citizens of states.

This is just wrong!

BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

As you can see it was universally understood in the early days of the Republic that the BoR applied only to the fedgov.

As to the "incorporation". Well, even during the heyday of the Warren court it never went as far as to claim that the entire BoR was incorporated and applies to the states. Surely you don't want to be in the same league with "Wild Bill" Douglas ;-).

129 posted on 01/15/2006 3:08:46 PM PST by Tarkin (Janice Rogers Brown for President!)
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To: robertpaulsen

You're of course right. Most people here do not realise that the 2nd Amendment only applies to the federal government. Unless of course the SCOTUS does something about it.


130 posted on 01/15/2006 3:11:59 PM PST by Tarkin (Janice Rogers Brown for President!)
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To: billbears

I prefer to follow an interpretation which is consistent with orignial intent - namely that the BOR applies to the states. Whatever interpretation Fairman came up with, it doesn't square with the what the authors and approvers of the 14th Amendment said in the course of their debates. The article I referenced is only summary of the comments and the issues raised. Whole books have been written about the Constitution and I can hardly offer the whole story in a posting here at Freerepublic.


131 posted on 01/15/2006 3:13:18 PM PST by RKV ( He who has the guns, makes the rules.)
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To: narby
"Because the SC has ignored the obvious interpretation of the constitution for several decades now. Many government entities have passed obviously unconstitutional law and gotten away with it."

Unchallenged? Or challenged and ruled constitutional, though you disagree with the court's conclusion?

You're pretty flippant with simply calling things "unconstitutional" when you can't explain them any other way. My Occam's Razor explanation that the second amendment simply doesn't apply to the states aparently triggers your cognitive dissonance.

132 posted on 01/15/2006 3:15:50 PM PST by robertpaulsen
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To: robertpaulsen

Same-same and I agree.


133 posted on 01/15/2006 3:17:55 PM PST by dpa5923 (Small minds talk about people, normal minds talk about events, great minds talk about ideas.)
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To: dpa5923
"A right need not be listed in some document in order to exist."

Correct. But, in order for you to exercise that right, the protection of that right better be listed somewhere.

134 posted on 01/15/2006 3:20:11 PM PST by robertpaulsen
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To: Dog Gone
Jefferson: "The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them."

There is a peculiar irony to the Left's claim that a woman (a mother, by the clear implication of their objective) possesses a so-called constitutional "right to privacy" which trumps the clearly constitutional protection of life and liberty of the child in her womb.

135 posted on 01/15/2006 3:20:20 PM PST by loveliberty2
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To: Dog Gone
Most people are under the mistaken impression that all of the Bill of Rights have been extended to the states. It's not true.

True, in fact only some parts of the BoR have been extended to the states.

F.ex.

Freedom of speech - Giltow v. New York (1925)

Right to counsel in capital cases - Powell v. Alabama (1932)

Establisment of religon - Everson v. Board of Education (1947)

The exclusionary rule - Mapp v. Ohio (1961)

Right to counsel in all cases - Gideon v. Wainwright (1963)

Trial by jury - Duncan v. Lousiana (1968)

Some parts of the BoR (like the 2nd Amendment) were never extended to the states and some parts of the BoR (like the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries - the Supreme Court held that juries had to be composed of twelve persons and that verdicts had to be unanimous,because it was customary in England) were explicitly limited to the federal government (Burch v. Louisiana in 1979).

136 posted on 01/15/2006 3:24:42 PM PST by Tarkin (Janice Rogers Brown for President!)
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To: dirtboy
Griswold did nothing to create any additional federal powers. It ruled that since the right to privacy was not an enumerated right under the Constitution, it was reserved to The People, and that, as such, no state had the right to restrict it. It NEGATED a state "right," but did not create any new federal power.

The right to privacy became, in effect, a federally protected constitutional right by virtue of the Ninth Amendment and emanations proceeding from several others. The Court does not address any Tenth Amendment concerns in Griswold, and I don't know that any were ever raised.

137 posted on 01/15/2006 3:25:33 PM PST by IronJack
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To: narby
So do I have a privacy right that makes it OK to use cocaine?

Actually, you do. However, manufacturing it, importing it, possessing it, appearing in public while under its influence, or engaging in commerce in it remain constitutionally prohibited.

138 posted on 01/15/2006 3:26:20 PM PST by FreedomCalls (It's the "Statue of Liberty," not the "Statue of Security.")
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To: narby
So do I have a privacy right that makes it OK to use cocaine?

Actually, you do. However, manufacturing it, importing it, possessing it, appearing in public while under its influence, or engaging in commerce in it remain constitutionally prohibited.

139 posted on 01/15/2006 3:26:21 PM PST by FreedomCalls (It's the "Statue of Liberty," not the "Statue of Security.")
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To: robertpaulsen

That is not the argument. The writer of this article claimed the right to privacy was a myth because it was not listed in the US Constitution. He is wrong.

This is not a discussion about the exercise of rights, which is always difficult at best.


140 posted on 01/15/2006 3:29:19 PM PST by dpa5923 (Small minds talk about people, normal minds talk about events, great minds talk about ideas.)
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