US 2nd Amendment Under Assault, Freedom Firearms Guns Defense

grarpamp grarpamp at
Sun Apr 11 21:15:51 PDT 2021

Will Supremes Unleash Biden Red Flag Gun Raids?
A gun seizure case before the Supreme Court could open the flood-gates
to warrantless searches...

Will Supremes Unleash Biden Red Flag Gun Raids?

Authored by James Bovard via

A gun seizure case before the Supreme Court could open the flood-gates
to warrantless searches...

President Joe Biden launched his first attack on the Second Amendment
this week, making clear his intent to radically curtail Americans’
legal rights to own firearms. The White House boasted that Biden was
nominating a “fierce” advocate of gun control, David Chipman, to be
chief of the Alcohol Tobacco and Firearms (ATF) agency. Chipman, a
former ATF agent, is so dedicated to banning assault weapons that he
brazenly lied last year about the 1993 federal assault at Waco,
claiming that the Branch Davidians shot down two National Guard
helicopters that were assaulting their home. Chipman, a Phillips
Exeter Academy graduate who carries a concealed weapon himself, was an
ATF case agent at the 1994 trial of the Branch Davidian survivors so
he had no excuse for tossing out this anti-gun fairy tale.

Perhaps the biggest peril that Biden unveiled is his push for a
national “red flag” law that would entitle the police to preemptively
confiscate the guns of anyone who is accused of being a threat to
himself or others. Red flag laws have been notorious for trampling due
process and spurring unjustified police raids that have resulted in
killing innocent gun owners. It is naïve to expect fair play on gun
owners’ rights when the politicians driving such policy are openly
seeking pretexts to disarm as many Americans as possible. Biden’s push
for a red flag law could become far more perilous to constitutional
rights if the Supreme Court upholds a potentially landmark gun seizure
case that could gut the Fourth Amendment’s prohibition against
warrantless searches. The Court heard arguments in this case last
month and a decision is expected by June.

In 2015, after an elderly couple had a heated argument, Edward
Caniglia placed an unloaded revolver on the table and taunted his
wife: “Why don’t you just shoot me and get me out of my misery?” His
wife, Kim, was spooked and left to stay overnight in a hotel. When he
didn’t answer a phone call the next morning, she called the police and
asked them to check on him.

Police arrived and browbeat Edward Caniglia into getting get a
psychiatric examination at a hospital. He agreed to do so only after
police promised not to seize his handguns. The shrinks certified him
as sane (at least by prevailing Rhode Island standards) and he
returned home to learn the police had confiscated his guns. Both he
and his wife requested the guns be returned. Police refused to do so
until Caniglia, who had no history of violence or abusing firearms,
filed a lawsuit. Caniglia also sued the city of Cranston and police
officers for violating his constitutional rights.

At first glance, his case rested upon solid precedent. The Supreme
Court ruled in 1980, “It is a basic principle of Fourth Amendment law
that searches and seizures inside a home without a warrant are
presumptively unreasonable.”  In 1948, the Supreme Court declared that
the sanctity of private homes is “too precious to entrust to the
discretion of those whose job is the detection of crime and the arrest
of criminals.” But the police and their supporters relied on a vast
expansion of a 1973 Supreme Court decision that justified a
warrantless “inventory search” of a rent-a-car to seek a police
officer’s revolver in the trunk as part of the “community caretaking”
exemption to the Fourth Amendment. A federal judge and a federal
appeals court, ruling in favor of Rhode Island police, effectively
concluded that a private home was “close enough for government work”
to a rent-a-car to justify warrantless searches.

But what about that clarion call 1967 Supreme Court decision that
declared, “Wherever a man may be, he is entitled to know that he will
remain free from unreasonable searches and seizures.”  Not a problem,
according to the first amicus brief that the Biden administration
filed with the Supreme Court. According to the Biden administration,
the only question in the Rhode Island case was whether the actions of
police officers in the case were “objectively reasonable.”
Constitutional rights were effectively moot because the Cranston cops
were simply dealing with “an impending safety threat through a
warrantless seizure of a potentially mentally unstable person and an
entry into his residence for the limited purpose of removing
firearms.” For the Biden legal team, “confiscating” became “removing”
as smoothly as one of Falstaff’s minions turned “stealing” into

On the same side of the fight, Marc DeSisto, the lawyer representing
the Cranston police officers, declared, “The Fourth Amendment has only
one test and that is that searches and seizures shall not be
unreasonable.” DeSisto was not required to take a literacy test and
perhaps was unaware of the Fourth Amendment passage about Americans’
rights to “be secure… 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.”
DeSisto and the Biden administration presume that warrants are
unnecessary, if not irrelevant, any time government officials assert
that it is “reasonable” to enter someone’s house without a warrant “to
ensure public health and safety.”  And who defines “reasonableness”?
The same government officials who violate the Constitution. As Justice
Stephen Breyer commented, “If you take a caretaker exception and read
that into the word ‘reasonable,’ there’s no stopping. We don’t know
how far we’ll go.”

Lawyer Shay Dvoretzky, who represented Caniglia before the Court, warned,

    “Nearly every criminal violation has public safety implications,
so dispensing with the warrant requirement whenever police can point
to a health or safety motive would eviscerate the Fourth Amendment.
Virtually any criminal situation can also be described in health or
safety terms. For any situation involving drugs and alcohol, police
could just say they were going into the home in order to make sure
that the suspect was okay.”

As Justice Neil Gorsuch asked, “What does the government do that
doesn’t involve health or safety?” Institute for Justice attorney
Joshua Windham wrote, “A rule that allows police to burst into your
home without a warrant whenever they feel they are acting as
‘community caretakers’ is a threat to everyone’s security.” A brief
filed jointly by the American Civil Liberties Union, Cato Institute,
and American Conservative Union Foundation warned that upholding the
Rhode Island search could “give police free rein to enter the home
without probable cause or a warrant” and would be “unwise,
unmanageable, and unnecessary, and it opens the door to abusive police

The Biden administration’s animosity to the Second Amendment has
raised the stakes for the Rhode Island case. The Second Amendment Law
Center, the California Rifle and Pistol Association, and Gun Owners of
California warned the Supreme Court that

    “the Fourth Amendment has no ‘gun’ exception… Expansion of the
‘community caretaking’ exception into the home will be used by police
in jurisdictions with onerous or constitutionally-questionable firearm
restrictions to turn every call to a house into a search for guns
under the pretext of ‘helping’ those present.”

Anyone who doubts whether warrantless “community caretaking” could
open an authoritarian Pandora’s box should read the transcript of the
Supreme Court hearing. Lawyer DeSisto asserted that the caretaking
doctrine would also authorize police raids to enforce mandatory COVID
mask requirements if “they can see a lot of people gathered together
that are not wearing masks.” Gov. Cuomo is again the bellwether here.
In November, Cuomo denounced New York county sheriffs for acting like
a “dictator” because they refused to forcibly enter private homes to
enforce Cuomo’s mask mandate. Since the start of the Pandemic, Biden
has whooped up masks as if they were a silver bullet to slap COVID-19
(regardless that tens of  millions of Americans have been infected
with the virus since mask compliance reached over 80 percent in public
places). Biden has already mandated wearing masks in National Parks
and on federal property. How much further could he go if there is
another surge of Covid cases?

Justice Sandra Sotomayor commented during the hearing, “When we permit
police to search and seize without some standard, we run the risk of
situations like this [Rhode Island case] repeating themselves.” But
many antigun activists view the case as a model, not as a glitch in
the legal system. Some court watchers expect a victory for the Biden
position; Reuters headlined its report on the hearing, “With the
elderly in mind, U.S. Supreme Court wary of limiting police in home
entries.” Defenders of the Rhode Island gun seizure insist that
government officials need discretion to forcibly protect people
against themselves. But consider the experience of New Yorkers under
the Secure Ammunition and Firearms Enforcement (SAFE) Act, which Gov.
Andrew Cuomo railroaded into law immediately after a 2012 school
shooting in Connecticut. Cuomo declared: “People who have mental
health issues should not have guns. They could hurt themselves, they
could hurt other people.” But tens of millions of Americans visit
therapists each year, and “mental health issues” is vague enough for
endless political mischief.

More than 85,000 New Yorkers lost their Second Amendment rights as a
result of a “mental health” exclusion clause in the SAFE Act. As
columnist Jacob Sullum observed, the “law effectively gives ‘mental
health professionals’ the power to disarm people, and they do not even
need a judge’s approval.” New York University law professor James
Jacobs observed that, “based on as little as a single short emergency
room interview,” an individual “need not even be notified that his or
her name has been added to a database of persons whose firearms
license must be revoked and whose firearms must be surrendered.”
Medical professionals and others were already legally obliged to
notify police if a patient “made a credible threat” of violence but
the provision in the 2013 act was far more expansive.

If the Supreme Court approves “wellness check” warrantless gun raids,
the Biden administration could invoke the American Psychiatric
Associations Diagnostic Statistic Manual (DSM) category 313.81,
Oppositional Defiant Disorder, to justify targeting outspoken
opponents of the government. After the clash at the Capitol, Biden
wasted no time denouncing the January 6 protestors as “domestic
terrorists.” Press accounts of the arrests of the protestors
breathlessly recounted how many firearms were found in their
homes—regardless that those individuals did not tote their AR-15s,
shotguns, and Glocks with them when they “unlawfully entered” that
“Temple of Democracy,” the U.S. Capitol. Any such crackdown would have
legions of cheerleaders in the mainstream media.

The Biden administration’s support for warrantless “community
caretaking” police raids must be viewed in light of previous perverse
legal innovations that unleashed tyranny. Going back to the 18th
century, British and American judges recognized that “a man’s home is
his castle.” But the drug war obliterated that notion with legal
doctrines that should have been laughed out of court. Instead, the
combined peril of narcotics and flush toilets nullified limits on
police power. In a 1995 brief to the Supreme Court, Clinton’s Justice
Department stressed that “various indoor plumbing facilities… did not
exist” in early America when the “knock-and-announce” rule for
searches of homes was adopted. In a 1997 brief to the Supreme Court,
the Clinton administration declared that “it is ordinarily reasonable
for police officers to dispense with a pre-entry knock and
announcement.” The subsequent Supreme Court decision included a few
quibbles but effectively sanctified no-knock raids whenever police
claimed a “reasonable suspicion” that evidence might be destroyed. The
New York Times noted in 2017 that no-knock warrants were routinely
granted permitting “the most extreme force in pursuit of the smallest
amounts of drugs, since a few grams are more quickly flushed than a
few bales.” The Clinton “flush the Fourth” doctrine spurred an
explosion of deadly no-knock raids across the nation. A New York Times
investigation found that “at least 81 civilians and 13 law enforcement
officers died in raids from 2010 through 2016. Scores of others were
maimed or wounded.”

“Government as a damn rascal” was the unwritten premise of the Bill of
Rights. The Founding Fathers saw enough depredations by British agents
that they recognized the folly of vesting officialdom with absolute
power. The Bill of Rights is full of prohibitions (“shall make no
law”) precisely because the Founders did not trust politicians to be
judge, jury, and executioners on their own “reasonableness.” Nothing
that Biden or his appointees have said or done so far justifies
exempting them from Thomas Jefferson’s 1799 admonition to “bind those
we are obliged to trust with power…from mischief by the chains of the

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