I've just been looking over your series of exchanges with airedale on this thread and wanted to add my own thoughts, albeit three weeks late. I appreciate what you're saying about "put the law books down for a second and think", but I would suggest going back and re-reading the fourth Amendment in the following way...
| The Actual Fourth Amendment | 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. |
| Badray's Fourth Amendment | The right of the people to be secure in their persons, houses, papers, and effects, against warrantless 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. |
I did that to emphasize the fact that the Fourth Amendment does not guarantee your right to a warrant, it only guarantees your right to reasonableness. Note that the only reference to a warrant in the Fourth Amendment is only for purpose of describing its form, not its requirement.
So where did this fiction that reasonableness-equals-warrant come from? It came from the fact that since 99.9% of the cases do in fact require a warrant, everyone just presumes that it must be a 100% requirement. It's not, not in law, not in history, and not in reason nor logic.
Just something to think about...
That said, the more I read it, the more convinced I am that (my version) was the intent of the Founders. I am not an attorney or scholar, but I think that I understand their intent.
I ask you now to thoughtfully consider -- and if you are an attorney, to put down the law books -- as I explain.
First off, the Constitution's Bill of Rights guarantees nothing. They serve as a reminder what the government must not do.
Second, to put this in context, remember that the Founders did not use words as we do today. Meanings have changed and we cannot read the words as we know them to mean today to understand what they meant as they were written back then.
For instance, "well regulated" did not mean rules and regulation as interpreted or understood today. It meant that someone or something was trained or in good working order.
Now take 'reasonable'. If there was a reason (good cause to believe or evidence) to do something, it was reasonable.
Since unreasonable (those without reason -- fishing expeditions and to harass) searches are never allowed, what defines the difference? The warrant does.
The warrant is what makes the search reasonable . It provides the reason and it's done under oath to emphasize the seriousness with which it's done. It details the who and what that is to be searched and/or seized, and the probable cause of why the person and place is to be searched.
This wasn't something that they took lightly or wanted to be done on a whim. They had been subjected to searches any time the king's men felt like it. They weren't about to authorize the new government to do the same thing, therefore, no reason, no warrant, as in "...no warrant shall issue..."
Our understanding of reasonable today is too subjective and would never have been acceptable to them. Their standards were much higher than ours. We need to raise our sights.
If you are an attorney, you probably have more ready access to case law than I do. My guess is that challenges to the 4th Amendment standard of reasonable are relatively recent ones and are virtually non existent for the first 100 or so years of our nation's history. Not that there weren't abuses, but the closer to the time of our founding, the better they understood the intended meaning.
It's no different with the 2nd Amendment. It took 100 years or longer for the understanding to change and for the meaning to be lost. Well, 100 years and some lawyers.