Do You Live In The Constitution-Free Zone Of The US?

from the 2/3rds-of-americans-do dept

Tue, Feb 12th 2013 12:47pm — Mike Masnick

Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border. The latest bit of news was that an internal review found that there was minimal benefits to one's civil liberties in not searching their laptops, so it was okay (think about that sentence for a bit).

The 100 mile "buffer zone" part of that story gets most of the attention, but it isn't a new thing. They've been claiming that for a while. It's just that this is yet another attempt by them to give themselves additional support for those kinds of searches. In our comments, someone pointed us to a useful (and horrifying) map that the ACLU put together highlighting just how much of our country is within 100 miles of border/coastline, creating the Constitution-Free Zone Map -- which happens to cover about 2/3 of all American citizens.

Click through for the ACLU's interactive version. This isn't a new map, and, no one is claiming that these regions don't have any Constitutional protections, but it does effectively make the point of just how incredibly ridiculous it is for them to make these claims when it comes to laptop searches, which were already questionable enough at the border, let alone 100 miles into the country.

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Filed Under: 4th amendment, constitution, privacy, searches
Companies: aclu

216 Comments

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Arsik Vek (profile), 12 Feb 2013 @ 12:44pm

Hmm, if I'm reading this properly, does that mean we can search all the congresscritter's laptops? DC is well within that limit.

Unforunately, that means so am I.
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Vic, 12 Feb 2013 @ 12:50pm

Do you live ...
Yes, I do... Unfortunately for me.
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Dark Helmet (profile), 12 Feb 2013 @ 12:52pm

Re: Do you live ...
As is the entire city of Chicago, interestingly enough. Apparently there should be much more concern about Canadians swimming Lake Michigan than there is. Personally, I'd rather militarize the Wisconsin border to keep those folks out....
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Anonymous Coward, 12 Feb 2013 @ 12:55pm

Mike--

They can't just search any laptop in that 100-mile range. Instead of pumping out mindless FUD all day long that you're too dishonest to defend in the comments, why don't you write one single article where you thereafter defend even one or two of the silly points you make. Why do you keep publishing idiotic nonsense like this? I have never seen anyone care so little about truth. Seriously. You pretend to be a "evidence-based" person. Yet you seem to have next to no evidence about border search law. You don't care about evidence. You ONLY care about spreading FUD.
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Robert (profile), 12 Feb 2013 @ 12:56pm

Re:
Not if you're supported financially by the security firms who are waiting for laptop/HDD/mobile device file scanners to become mandatory after they "find" "terrorists" transporting harddrives containing information pertinent to "national security."

Everyone else, congress/senate/ordinary citizen/visitors are fair game.

Check out the ACLU's Stop and Frisk App and the story that goes alone with it.
http://www.popsci.com/gadgets/article/2013-02/can-app-stop-new-yorks-stop-and-frisk
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Jay (profile), 12 Feb 2013 @ 12:56pm

Well, on the plus side, this "constitution-free zone" certainly explains why DC's gone so crazy in recent years: apparently, the constitution does not exist there.
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Capitalist Lion Tamer (profile), 12 Feb 2013 @ 12:57pm

Not me. I live safely inland, in the area known as "flyover country." However, it has its own "Constitution-Free Zone." You'll know you're in it when you hear a member of law enforcement say, "You're not from around here, are ya' boy?"

(Note: Despite the above quote, women are NOT exempt from Constitution-free treatment. In most cases, "are ya' boy" is replaced with "so we'll likely have to do a strip search to get to the bottom of this broken tail light issue.")
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Anonymous Coward, 12 Feb 2013 @ 12:57pm

How many mobile phones and laptops will be seized after the ne3xt big demo in Washington?
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Anonymous Coward, 12 Feb 2013 @ 1:00pm

International Airports?
Correct me if I am wrong, but I thought the language was broader then 'border', something about international airports being borders too? Or does that only apply to the land of the airport, and does not include the 100 mile fu...ule, rule, I meant rule. Also, didn't they at some point claim any train station/tracks that had an out-of-nation track connection fall under their jurisdiction, as well as any bus depot with out-of-nation destinations? Or again, does that only apply to the physical building, and not the special 100 mile rule?
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Anonymous Coward, 12 Feb 2013 @ 1:00pm

I do believe the northern border is not based on the lakes, but rather crosses through their bodies - see https://en.wikipedia.org/wiki/File:Unitedstatesmap.png

Which is a shame, because otherwise the concept in the ACLU map is strong. It really undermines the point when there's a glaring data inaccuracy like this.
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Anonymous Coward, 12 Feb 2013 @ 1:00pm

Oh shoot I had no idea I was in a border zone in the middle of Ohio. Guess I'm going to need my own gun to join the citizens border patrol though... taking off work early...
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Anonymous Coward, 12 Feb 2013 @ 1:01pm

Re:
http://www.techdirt.com/articles/20120818/01171420087/funniestmost-insightful-comments-week-techdirt .shtml#c1210
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Anonymous Coward, 12 Feb 2013 @ 1:01pm

Re:
If you actually want to convince anyone, perhaps you could post the rules you think they operate under? You complain about evidence, but make an assertion without providing any.
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Oblate (profile), 12 Feb 2013 @ 1:02pm

Is that all?
Does this include all navigable waterways? Notice that they included the borders of Lake Michigan, which is entirely within the US. This would also include the Mississippi river. Does this mean that the DHS wants to paint a yellow stripe down the middle of the country?
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Anonymous Coward, 12 Feb 2013 @ 1:02pm

Re: International Airports?
Would this not also apply to some Indian reservations that are not part of the United States?
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Anonymous Coward, 12 Feb 2013 @ 1:04pm

Re: Re: International Airports?
You know, I think you are right. I do believe they are treated roughly as a disliked sovereign nation (or multiple) by the government, so yes, that should throw out some more pockets of orange.
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Anonymous Coward, 12 Feb 2013 @ 1:05pm

Re: Is that all?
Does this mean that the DHS wants to paint a yellow stripe down the middle of the country?

I believe the plan is for a double yellow...
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Anonymous Coward, 12 Feb 2013 @ 1:07pm

Tilt Error
The map is incorrect.

Atlanta and Denver have international airports. Anything within 100 miles of either of these cities is also within the zone.
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Rikuo (profile), 12 Feb 2013 @ 1:09pm

Re:
No. I remember one time hearing that politicians can bypass all these security checks, because it delays them, and delaying politicians is illegal, because then they might not be present to vote on stuff. I might have got a few details wrong, and I can't quote anything, but I believe it was in relation to the fact that very few, if any, US politicians speak out against the TSA.
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Capitalist Lion Tamer (profile), 12 Feb 2013 @ 1:13pm

Re: Is that all?
"The man was a legend, towering head and shoulders above his fellow HAM radio enthusiasts, built like a freight car, but with arms and legs, and possessing the only unsearched laptop east of the Mississippi."

-- "A Child's Treasury of Nonexistent Folklore," by C.L. Tamer, 2013.
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weneedhelp (profile), 12 Feb 2013 @ 1:14pm

Re:
Yes they can. They set up checkpoints acting like they are searching for illegals crossing the borders. You dont youtube much huh? Or google for that matter.PLS see the comment above.
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Anonymous Coward, 12 Feb 2013 @ 1:14pm

Re: Re:
One comment. Delaying a politician is illegal because politicians write the laws.
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John Doe, 12 Feb 2013 @ 1:14pm

Whew, that was a close one
Wow, that was close, but thankfully I live in an area still under the constitution. Not sure how long that will last though.
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Anonymous Coward, 12 Feb 2013 @ 1:15pm

Re: Re:
Yep. There's Mike being a coward and making excuses for why he can't back up his own posts. Total fake. Total coward. Only cares about spreading hate and FUD.
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Anonymous Coward, 12 Feb 2013 @ 1:18pm

Re: International Airports?
Yep, international airports are the functional equivalent of a border, so the border search exception applies there as well.
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Anonymous Coward, 12 Feb 2013 @ 1:20pm

Re: Re: Re:
I see you have as much reading comprehension as you have credibility.
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Anonymous Coward, 12 Feb 2013 @ 1:21pm

Re: Re: Do you live ...
This one knows too much. He dies first.
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E. Zachary Knight (profile), 12 Feb 2013 @ 1:25pm

Re: Re:
Article 1 Section 6 of the US Constitution:

"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."
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Anonymous Coward, 12 Feb 2013 @ 1:25pm

Re: Re:
If you actually want to convince anyone, perhaps you could post the rules you think they operate under? You complain about evidence, but make an assertion without providing any.

The search still has to qualify for the so-called border search exception. Not all searches within that 100 miles are border searches, so regular Fourth Amendment law would apply. There's a series of Supreme Court cases that explicitly discuss this exception (including the magic 100 mile number that Mike pretends isn't the law).
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DH's Love Child (profile), 12 Feb 2013 @ 1:26pm

Re: Tilt Error
"Atlanta and Denver have international airports. Anything within 100 miles of either of these cities is also within the zone."

If that's the case, essentially the entire geography of the country would qualify as I'm pretty sure there is an international airport within 100 miles of almost everywhere.
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Anonymous Coward, 12 Feb 2013 @ 1:27pm

Re: Re:
I base my legal knowledge on having read all the Supreme Court cases that concern border searches. Give Mike a link to a video on YouTube. I'm sure he'd prefer that to the actual law.
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Rikuo (profile), 12 Feb 2013 @ 1:27pm

Re: Re: Re:
THAT's it. Thanks!
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Anonymous Coward, 12 Feb 2013 @ 1:28pm

Illegal to stop illegals
I'll never be stopped, I'm an illegal living in SoCA. They only want to stop you citizens...HA!
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Anonymous Coward, 12 Feb 2013 @ 1:29pm

Re: Re: Re: Re:
Yet I'm the one here ready to discuss the issues on the merits, and Mike has nothing but excuses, excuses, excuses, excuses. I get it though. He writes this blog for the idiots. He's too insecure to be challenged.
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Anonymous Coward, 12 Feb 2013 @ 1:30pm

Re: Re: Re:
Can you cite the most relevant Supreme Court cases related to border searches? Your opinion is fine, no consensus needed.
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Anonymous Coward, 12 Feb 2013 @ 1:31pm

Re: Re: Re: Re: Re:
What merits? Challenged on what?
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Rikuo (profile), 12 Feb 2013 @ 1:31pm

Re: Re: Re:
You do know Mike isn't the source of that 100 mile number? You might want to start with the ACL fucking U, ya know, the people who created that map.

Ah fuck, I'm not gonna bother. You're just here to spread the hate.
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Rikuo (profile), 12 Feb 2013 @ 1:33pm

Re: Re: Tilt Error
So...I take it then its okay for me to soak the Constitution in gasoline and throw a lit match on it, given how worthless it is now?
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Anonymous Coward, 12 Feb 2013 @ 1:33pm

Well that sucks for me. Basically EVERY major city in Texas falls under this nonsense. With the exceptions being Fort Worth/Dallas and Austin. And Austin is just barely out of the area.

I literally live within 10 miles of the border and as someone pointed out yesterday, there's a checkpoint on the major high between Brownsville and Houston. So between a rock and a hard place I fall. (And that's not counting the other "minor" checkpoint on the back roads to Laredo. So I'm between a rock and two hard places.

Also, AJ, just sign in already. Sheesh man. We all know it's you. There's only one idiot who post the same almost word for word rant against Mike in EVERY single article on a daily basis. It went from cute to annoying to god I hope this guy suffers an aneurysm while sitting in front of his computer real quick.
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Anonymous Coward, 12 Feb 2013 @ 1:38pm

Re: Re: Re: Re: Re:
"If you can't explain it simply, you don't understand it well enough."
~ Albert Einstein
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Blatant Coward (profile), 12 Feb 2013 @ 1:46pm

Re: Re: Re: Re: Re: Re:
"Complain all you like, sometimes you just can't buff stupid."

-Zunshine Healz
Rad/Rad Defender
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Anonymous Coward, 12 Feb 2013 @ 1:47pm

Re: Re: Re: Do you live ...
Two by two hands of blue.
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Phillip (profile), 12 Feb 2013 @ 1:50pm

Re:
Depends how DHS would see it though.
Generally things come into play at the land, otherwise the entire coastal part is wrong since international waters start about 12 miles out (http://en.wikipedia.org/wiki/Territorial_waters)
as a result everything should only be affected 88 miles inland instead of the 100 they are showing, if this is the case.
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Anonymous Coward, 12 Feb 2013 @ 1:55pm

Re:
Come on Average_Joe. Again your comment is just a big fallacy with some pretty explicit ad hominem. Instead of trying to bait Mike with nothing, how about you provide sometihng to disprove what he writes. The hypocricy of making a post without any reasoning and full of FUD against a named person you claim is doing exactly that is pretty thick...
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Anonymous Coward, 12 Feb 2013 @ 1:55pm

Re: Re: Re:
Translation:

I base my knowledge on texts and never got out to see what is really happening right under my nose.
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Anonymous Coward, 12 Feb 2013 @ 1:56pm

Re: Re: Re: Re: Do you live ...
A Firefly reference?! Here?! [nerdgasms]
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Anonymous Coward, 12 Feb 2013 @ 1:56pm

Re: Re: Re: Re:
Can you cite the most relevant Supreme Court cases related to border searches? Your opinion is fine, no consensus needed.

Here's a few:

http://scholar.google.com/scholar_case?q=413+U.S.+266+&hl=en&as_sdt=2,19&case=69 33260753627774699&scilh=0

http://scholar.google.com/scholar_case?q=473+U.S.+531&hl=en& ;as_sdt=2,19&case=279694717208509367&scilh=0

http://scholar.google.com/scholar_case?q=428 +U.S.+543+&hl=en&as_sdt=2,19&case=12168013009786458670&scilh=0

http://scholar.goo gle.com/scholar_case?q=422+U.S.+873+&hl=en&as_sdt=2,19&case=17010248136028194244&sci lh=0

http://scholar.google.com/scholar_case?q=422+U.S.+891+&hl=en&as_sdt=2,19&case=93 0526622971426401&scilh=0

http://scholar.google.com/scholar_case?q=462+U.S.+579+&hl=en& ;as_sdt=2,19&case=13366850492031728795&scilh=0
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Rikuo (profile), 12 Feb 2013 @ 1:58pm

Re: Re: Re: Re:
I too can't believe he actually wrote that. He admits he bases his knowledge on what is said by a group of judges, rather than on how policy is actually done in the real word? I wonder what AJ's opinion is of extra-judicial drone strikes? I'm pretty sure that with his "logic", he'll say they don't happen, because they're illegal and the President doesn't have the authority to authorise them.
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Mr. Applegate, 12 Feb 2013 @ 2:00pm

Re: Re: Re:
Go ahead and cite them all for us here (Simple URLs will be fine). since you have "read them all" that shouldn't be a problem.

Then we will all be equally well informed.

We will wait here.

TLDR: Put up or Shut Up
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Anonymous Coward, 12 Feb 2013 @ 2:04pm

Re: Re: Re: Re:
I'm not him, but, here's something from the 9th Circuit:

UNITED STATES OF AMERICA v. I.E.V.

'Our Circuit �has previously recognized only two circumstances when a car and its passengers are properly subject to �extended border searches� away from the border.� United States v. Perez, 644 F.2d 1299, 1302 (9th Cir. 1981). The first circumstance is where the �officers can determine �with reasonable certainty� that any contraband which might be found in the vehicle was aboard the vehicle when it crossed the border.� Id. (quoting Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966)). The second circumstance where an �extended border search is valid� is when �customs agents are �reasonably certain� that parcels have been smuggled across the border and placed in a vehicle, whether or not the vehicle itself has actually crossed the border.� Id. (quoting United States v. Weil, 432 F.2d 1320, 1323 (9th Cir. 1970)). �[R]easonable certainty is a stricter standard than probable cause.� Id. (internal quotation marks omitted) (citing United States v. Kessler, 497 F.2d 277, 279 (9th Cir. 1974)). There is no dispute that neither factual situation occurred in this case.'
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Mr. Applegate, 12 Feb 2013 @ 2:05pm

Re:
Are you sure one is enough?

Probably will need several and they should probably be 'assault weapons'.
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Anonymous Coward, 12 Feb 2013 @ 2:09pm

This map pretty much says the constitution doesn't apply in the original 13 colonies!
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Anonymous Coward, 12 Feb 2013 @ 2:13pm

The US border patrol is full of freetards!
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silverscarcat (profile), 12 Feb 2013 @ 2:17pm

Re: Re: Re:
treason, eh?

...

Does making laws that violate the constitution and the amendments count as treason?
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Anonymous Coward, 12 Feb 2013 @ 2:17pm

the Constitution has all but been removed. the bits that haven't are in the offering and will be ignored as and when needed to. the USA has changed from being the most famous nation for it's beliefs of freedom and privacy into a nation that is almost on par with the likes of N.Korea, simply because of the surveillance, the removal of privacy and the erosion of freedom. it took hundreds of years to build but only a few decades to destroy.
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Anonymous Coward, 12 Feb 2013 @ 2:24pm

Re: Re: Re: Re:
trea�son
noun \ˈtrē-zən\
Definition of TREASON
1
: the betrayal of a trust : treachery
2
: the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign's family

Sounds like making unconstitutional laws that injure the rights of the public to which they have sworn their allegiance would constitute such a betrayal of trust, so yeah... That shoe fits.
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Anonymous Coward, 12 Feb 2013 @ 2:25pm

Re: Re: Re: Re:
I believe the source of the 100 mile number is the CFR.
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Anonymous Coward, 12 Feb 2013 @ 2:26pm

Re: Re: Re: Re: Re:
Yeah, it's crazy. Instead of just believing the ridiculous FUD that there's a 100-mile wide "Constitution-Free Zone" around the U.S., I actually read and understand the actual law. Crazy!
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Psyga Sanichigo (profile), 12 Feb 2013 @ 2:26pm

Re: Re:
So it's the good ol' "If the president does it, that means it's not illegal."

Good ol' politics.
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Anonymous Coward, 12 Feb 2013 @ 2:27pm

Re: Re:
Do you want me to prove that there is no "Constitution-Free Zone" where the Constitution doesn't apply? LOL!
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Anonymous Coward, 12 Feb 2013 @ 2:29pm

Re: Re: Re: Re:
I linked to some just above. Your move, smart guy.
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Anonymous Coward, 12 Feb 2013 @ 2:30pm

Re: Re: Re: Re: Re:
I'm saddened to read this in United States v. Martinez-Fuerte:

"There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied. Dispensing with reasonable suspicion as a prerequisite to stopping and inspecting motorists because the inconvenience of such a requirement would make it impossible to identify a given car as a possible carrier of aliens is no more justifiable than dispensing with probable cause as prerequisite to the search of an individual because the inconvenience of such a requirement would make it impossible to identify a given person in a high-crime area as a possible carrier of concealed weapons."

Why am I saddened? Because it's in the DISSENT.
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Anonymous Coward, 12 Feb 2013 @ 2:32pm

Re: Re: Re:
Ok, explain then what constitutes a BORDER search. Perhaps... maybe... it might have something to do with actually crossing a BORDER and be actually need to be located AT A BORDER for such a crossing to occur and thus why it is actually called a BORDER search. Or do you think they called it that just because they thought it sounded so nice?
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Alex Nerdstrum, 12 Feb 2013 @ 2:34pm

They can search my laptop when they pry it from my well-maintained, callus-free hands.
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Anonymous Coward, 12 Feb 2013 @ 2:37pm

Re: Re: Re: Re:
And as I stated in the previous article, although a laptop wasn't searched, I was previously stopped at one such checkpoint (where a request to search my laptop could have just as easily been requested) 75 miles inside my own state despite the fact that I had never left the state. So I can tell you from PERSONAL EXPERIENCE that the damn 100 mile crap is definitely not FUD.
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what a jackass, 12 Feb 2013 @ 2:38pm

Re:
Im pretty sure the ACLU a bunch of lawyers, checked all this out before they posted it. I would tend to believe lawyers rather than wikipedia as much info at wikipedia has been being edited as of late. The edits seem to be completely changing what things mean. Wikipedia was spot on for many years,but these days seems to get edited to cover whatever postion the government takes
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Anonymous Coward, 12 Feb 2013 @ 2:49pm

Maybe...
Maybe all these border patrol officers running these checkpoints are just lost. Maybe someone who gets stopped sometime just needs to hand them a map and explain to them where they are and how to get back to the border where they belong. (Bonus points if a video of that ends up on YouTube.)
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Anonymous Coward, 12 Feb 2013 @ 2:49pm

Re: Re: Re: Re: Re:
Relevant footnote in Almeida-Sanchez v. United States:

The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR � 287.1 would pass constitutional muster.
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John Fenderson (profile), 12 Feb 2013 @ 2:49pm

Re: Re: Re: Re: Re:
But the Constitution is not the dictionary. The Constitutional definition of treason is:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
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John Fenderson (profile), 12 Feb 2013 @ 2:52pm

Re: Re: Re:
All of the official court decisions and such don't mean a thing. It's what is actually being done that counts.
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John Fenderson (profile), 12 Feb 2013 @ 2:53pm

Re: Re: Re:
If you can do so without changing what the post means by "Constitution free zone", then yes please.
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Jay (profile), 12 Feb 2013 @ 2:56pm

Re: Re: Re: Re: Re: Re:
So you admit that you understand judicial precedents but don't understand actual laws passing in Congress.

Wow...
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McCrea (profile), 12 Feb 2013 @ 2:56pm

Apparently it's okay to be anti-constitutional in special cases. This case is so special it affects 2/3 of Americans.
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Anonymous Coward, 12 Feb 2013 @ 2:57pm

Re: Re: Re: Re: Re: Re:
Member of congress are passing laws, and authorising diplomatic activity to support businesses who have :-
1) Moved production to foreign countries.
2) Account for most of their income via foreign branches, to avoid taxation.

Does this count as treason?
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Anonymous Coward, 12 Feb 2013 @ 3:00pm

Re: Re: Re: Re: Re: Re:
AJ, reading comprehension isn't your strong suit. So you reading and actually understanding something like the law is a stretch at best.
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Anonymous Coward, 12 Feb 2013 @ 3:00pm

Re: Re: Re: Re: Re: Re:
Another footnote:

Title 8 U. S. C. � 1357 (a) provides in pertinent part:

"Any officer or employee of the [Immigration and Naturalization] Service authorized under regulations prescribed by the Attorney General shall have power without warrant�
. . . . .
"(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States . . . ."

The Court of Appeals also relied on 8 CFR � 287.1, which in relevant part provides:

"(a) (2) Reasonable distance. The term `reasonable distance,' as used in section 287 (a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director, or, so far as the power to board and search aircraft is concerned, any distance fixed pursuant to paragraph (b) of this section."

So does DHS actually claim they can search laptops 100 miles from the border? The statute here says they can search "for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States". Clearly, a laptop cannot contain an alien, so it could not be searched under this law.
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Gary, 12 Feb 2013 @ 3:11pm

Map is Wrong
The map is wrong. 100% of Lake Michigan is in the US. Chicago is not 100 miles from any border.
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Anonymous Coward, 12 Feb 2013 @ 3:12pm

Re: Re: Re: Re: Re: Re: Re:
And just to be clear, here is the law on searching things:

(c) Search without warrant
Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.

This means, perhaps, they can search the laptop of "any person seeking admission to the United States" without a warrant. A person who is already here is not a "person seeking entry" no matter HOW close to the border they are. So this law does not apply.

My question is: Did DHS EVER actually say that they had the right to search laptops 100 miles from the border? Or did people just string several laws together and make bad assumptions?
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Anonymous Coward, 12 Feb 2013 @ 3:16pm

Re: Re: Re: Re: Re: Re: Re:
AJ, reading comprehension isn't your strong suit. So you reading and actually understanding something like the law is a stretch at best.

Cute dig. What have I read that I do not understand?
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ShellMG, 12 Feb 2013 @ 3:29pm

Re: Re: Do you live ...
I don't get the Chicago coverage, either. We in the Mitten State are screwed, but the Windy City is well over 100 miles from an international border. Is there a separate stipulation regarding waterways?
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Anonymous Coward, 12 Feb 2013 @ 3:32pm

Re: Re: Re: Re:
If you can do so without changing what the post means by "Constitution free zone", then yes please.

And what exactly does it mean?
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Anonymous Coward, 12 Feb 2013 @ 3:38pm

Re: Re: Re: Re: Re: Re: Re:
So does DHS actually claim they can search laptops 100 miles from the border?

You're thinking about this far more than Mike did. The document that got this latest round of malcontents stirred up is here: http://www.dhs.gov/sites/default/files/publications/crcl-border-search-impact-assessment_01-29-13_1. pdf

Relevant directives include CBP directive: http://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf and ICE directive: http://www.dhs.gov/xlibrary/assets/ice_border_search_electronic_devices.pdf

Ninth Circuit opinion that's on point: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/03/30/09-10139.pdf
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Anonymous Coward, 12 Feb 2013 @ 3:46pm

Re: Re: Re:
I want you to provide some objective proof of what you write in the first post. Had you posted the supreme court case-law you later proviced, you would at least have something worth discussing...
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Beech, 12 Feb 2013 @ 3:50pm

Re: Re: Re: Re: Re:
Then discuss on merits. Here are the "merits" you have put forth so far,

"They can't just search any laptop in that 100-mile range."
An interesting contention. Let's see what you have to back it up,

" mindless FUD "
" you're too dishonest"
"care so little about truth."
"You ONLY care about spreading FUD."
"being a coward "
" Total fake. Total coward. Only cares about spreading hate and FUD."
" He writes this blog for the idiots. He's too insecure to be challenged."

So yes. You have done a great job defending your point of view with evidence and relevant links, and TOTALLY not any ad homs at all. The above quotes show that you, truly, are all about discussing things based on merits and not just silly name calling.

Is this guy serious?
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Beech, 12 Feb 2013 @ 3:52pm

Re: Re: Re:
Yeah, but how do they KNOW someone 99 miles from Canada (as the crow flies) didn't JUST cross the border illegally?!!? They need to be searched just in case! What if they have terroristy things that can be used to terrorize someone?!
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Beech, 12 Feb 2013 @ 3:59pm

Re: Map is Wrong
Yes, but a sneaky Canadian trying to illegally emigrate to the good ol' USA for ....some reason?...could paddle his canoe from Lake Superior all the way down Lake Michigan and land near Chicago. You can't be too careful when those darn Canucks are involved!
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Mr. Applegate, 12 Feb 2013 @ 4:10pm

Re: Re: Re: Re: Re:
Well on first blush (I haven't read them yet) all those decisions are from the 70s and the 80s. None of them are after the rather radical changes to laws that occurred post 9/11. None of them address laptops etc.

So I would offer some more recent information. I link to the article, because the link to the decision is broken, but I will look for it when I have some time.

From 2008 "Border Agents Can Search Laptops Without Cause, Appeals Court Rules BY RYAN SINGEL04.22.083:21 PM"
http://www.wired.com/threatlevel/2008/04/border-agents-c/

I would also point to the following:
"Border rules revised on search, seizure of electronics, digital files"
http://www.cnn.com/2009/US/08/27/borders.computers/

Again failed links are preventing me from quickly locating the actual DHS rules or the opinion from 2008.

So you are offering decisions that are 25-40 years old, when there are a lot of new laws on the books since 9/11. DHS is granted a lot of authority to 'make law' so that they can 'move quickly' to thwart 'terrorism'.

Let's look for some law since 9/11 and preferably in the last 3 - 5 years.
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Anonymous Coward, 12 Feb 2013 @ 4:15pm

Re: Re: Re: Re: Re: Re:
Well on first blush (I haven't read them yet) all those decisions are from the 70s and the 80s. None of them are after the rather radical changes to laws that occurred post 9/11. None of them address laptops etc.

Still good law.

More recent decision on point from Ninth Circuit: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/03/30/09-10139.pdf

The notion that the feds can seize and search any computer they want in that 100-mile zone is so stupid that it hurts. Perfect fodder for the TD brain trust, no doubt. But stupid.
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Jay (profile), 12 Feb 2013 @ 4:19pm

Re: Re: Re: Re: Re: Re: Re: Re:
Copyright and the Constitution are the biggest things. You seen intent on your belief over anything that the rest of society actually agrees with and that's a huge problem.
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Rikuo (profile), 12 Feb 2013 @ 4:28pm

Re: Re: Re: Re: Re: Re: Re:
"The notion that the feds can seize and search any computer they want in that 100-mile zone is so stupid that it hurts."

What exactly are you even arguing here? Yes, it is stupid that the feds think they can seize and search any computer they want. We all agree on that. What precisely are you saying (pertinant to this article please, no rants about Mike) that runs counter to what this article is about?
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Anonymous Coward, 12 Feb 2013 @ 4:31pm

Re: Re: Re: Re: Re: Re: Re: Re:
Where did DHS ever say that they had the authority to seize any laptop within 100 miles of the border?

Everyone here agrees that this would be unconstitutional. Did DHS ever say otherwise? If so, can you provide a link?
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Jeff R, 12 Feb 2013 @ 4:31pm

Re: Re: Re: Do you live ...
It's not international border, it's point of international entry... which includes not just all of the great lakes borders.. but all airports with customs service.

Which makes it much more than just the areas on the ACLU's map.
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Anonymous Coward, 12 Feb 2013 @ 4:33pm

Borders / International Airports / Ports
In some regards international airports and other ports are considered borders. I would suggest some research into how they interpret this. For the map may need to be modified even more.
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Jeff R, 12 Feb 2013 @ 4:38pm

Re: Map is Wrong
It's not "border" it's "point of entry"
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Anonymous Coward, 12 Feb 2013 @ 4:43pm

Re: Re: Re: Re: Do you live ...
"It's not international border, it's point of international entry"

Says who?

"The term `reasonable distance,' as used in section 287 (a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the district director"

It clearly says EXTERNAL BOUNDARY. Unless you're thinking of some other law.
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Anonymous Coward, 12 Feb 2013 @ 4:48pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Where did DHS ever say that they had the authority to seize any laptop within 100 miles of the border?

They don't have that authority, nor have they said they did. It's the FUD-masters like Mike that's turning this into a "Constitution-Free Zone" where DHS can just do whatever it wants. They can't. All they said was the fact that they have the authority to conduct border searches and seizures away from the border under certain conditions.
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weneedhelp - not signed in, 12 Feb 2013 @ 4:52pm

Re: Re: Re: Re:
Asshole much?
Border Patrol -- 100 miles from border -- strikes fear in the community
https://www.youtube.com/watch?v=N4ZmSUfYYOY

Telemundo 52 documented the U.S. Border Patrol's recent activity in Corona, California -- a city more than one hundred miles from the U.S./Mexico border.

Border Patrol (100 miles from the border)
https://www.youtube.com/watch?v=NPOuj-WzAoA

BORDER BORDER BORDER. MILK MILK MILK.
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Kevin, 12 Feb 2013 @ 4:55pm

Re:
That's mikes thing, isn't it awesome how you got reported to the point that I had to click something to see what you wrote?

This sites been going downhill for ages, and mike doesn't write anything but FUD articles taken way out of context. Although, you should have posted some sort of evidence (link?) to back up your statement; otherwise I have little choice but to fear this 100 mile nonsense.
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Anonymous Coward, 12 Feb 2013 @ 4:59pm

Re: Re: Re: Re: Re:
"within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle... for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States"

They can search for illegals in that 100 mile zone. They CANNOT take your laptop for no reason. Unless you have a REALLY big case on the thing that an illegal might be hiding in.

It's now the job of your side of the argument to show otherwise, if you want to convince me.
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Anonymous Coward, 12 Feb 2013 @ 5:00pm

Re: Re: Re: Re: Re:
Telemundo 52 documented the U.S. Border Patrol's recent activity in Corona, California -- a city more than one hundred miles from the U.S./Mexico border.

The 100 miles thing isn't some constitutional limit. They do "border searches" at the St. Louis airport.
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Anonymous, 12 Feb 2013 @ 5:07pm

If you live ANYWHERE in the US, the answer is yes.
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Anonymous Coward, 12 Feb 2013 @ 5:11pm

Re: Re: Re:
If you meant Senators and Representatives, then yeah that's what it says.
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Anonymous Coward, 12 Feb 2013 @ 5:21pm

Re: Re: Re: Re: Re: Re:
Ahhh, miss?
Yeah, you're going to have to come over here real quick so that we can search your "border".
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Anonymous Coward, 12 Feb 2013 @ 5:29pm

Re: Re: Re: Re: Re: Re:
It's now the job of your side of the argument to show otherwise, if you want to convince me.

What is it exactly that you want me to demonstrate? I'm not following you.
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Anonymous Coward, 12 Feb 2013 @ 5:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
And therefore there are no such searches being conducted, because - you know - no one ever violates laws 'n stuff.
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weneedhelp - not signed in, 12 Feb 2013 @ 5:30pm

Re: Re: Re:
Border Patrol -- 100 miles from border -- strikes fear in the community
https://www.youtube.com/watch?v=N4ZmSUfYYOY

Telemundo 52 documented the U.S. Border Patrol's recent activity in Corona, California -- a city more than one hundred miles from the U.S./Mexico border.

Border Patrol (100 miles from the border)
https://www.youtube.com/watch?v=NPOuj-WzAoA

The laws and what is actually done on the streets are two different things.

DHS Checkpoint Blog Entry 6: Quasi-Detention
https://www.youtube.com/watch?v=yHqpuVetLeo
This is the way to handle an illegal checkpoint.
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Anonymous Coward, 12 Feb 2013 @ 5:31pm

Re: Re:
"mike doesn't write anything but FUD articles taken way out of context"

Yeah, I'm sure you are absolutely correct.
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Anonymous Coward, 12 Feb 2013 @ 5:33pm

Re:
They used it to wipe their asses, so it is probably somewhere in the Potomac
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Anonymous Coward, 12 Feb 2013 @ 5:34pm

Re: Re: Re: Re: Re: Re: Re:
I want someone to demonstrate that DHS or some government agency is even CLAIMING to be able to do these searches anywhere within 100 miles of the border. I think someone here took two different regulations and mashed them together into something that doesn't actually exist.
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Anonymous Coward, 12 Feb 2013 @ 5:36pm

Re: Re: Re: Re: Re: Re: Re: Re:
The exact same thing you always do no understand. That there's more going on than just the court opinions. That real life happens in the spaces between the explicit rulings and the unexamined interpretations of the law made by various agencies. That court opinions are but shadows on the wall compared to what's actually happening on the ground. That they're vague outlines of half impressions of what specifically was in front of the cave. That you're the man in Plato's Cave insisting that the shadows are reality.
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Dementia (profile), 12 Feb 2013 @ 5:52pm

Re: Re: Do you live ...
Now, now Dark Helmet, just cause your Bears suck is no reason to go getting all militaristic.
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Anonymous Coward, 12 Feb 2013 @ 5:54pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
You seem to be missing that part of the problem is that no one really knows for certain what all of the various agencies, whot have seen their discretionary authority massively expand post 9/11, have interpreted the limits of their discretion to be. So we're forced to rely on inference from many different sources because there is no direct answer, yay or nay, from the DHS on how much power they really think they have (and they'd be stupid to give one).

So on the one hand we've got rulings that say boarder patrol checkpoints 100 miles from the border are a-ok and on the other hand we've got rulings that say laptop searches at the border without suspicion are fine. What does that mean? Is there some reason laptop border searches would have different proximity rules compared to 'searches for illegals?' And how can you unequivocally state that "clearly, a laptop cannot contain an alien, so it could not be searched under this law" absent any guidance given that a laptop search could very easily be argued to be pursuant "to prevent the illegal entry of aliens into the United States." Nothing in that clause suggest that such searches are limited to searching for actual aliens, just for things that, when found, would help prevent the entry of aliens to the United States.

What's an average citizen to make of all these grey area absent a clear ruling or a precisely worded statue? I guess they could take your track and just have faith that border patrol agents will exercise their discretion to the most limited extent possible in spite of all the examples to the contrary and weak catch-all excuses like "well if the border agent performed a search he must have had cause."
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Anonymous Coward, 12 Feb 2013 @ 5:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Also the law is always super-duper clear and is never subject to interpretation anywhere but in a court room by a judge and there's certainly no secret interpretations of law...
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Anonymous Coward, 12 Feb 2013 @ 5:59pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Nothing in that clause suggest that such searches are limited to searching for actual aliens, just for things that, when found, would help prevent the entry of aliens to the United States."

No. It says aliens. Not things that will help them search for aliens. Aliens.

http://www.law.cornell.edu/uscode/text/8/1357

"within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle"

(the "reasonable distance" being 100 miles, as per http://www.law.cornell.edu/cfr/text/8/287.1)
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Anonymous Coward, 12 Feb 2013 @ 6:06pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The entire clause is not one sentence.
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Anonymous Coward, 12 Feb 2013 @ 6:11pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"You seem to be missing that part of the problem is that no one really knows for certain"

Apparently, not knowing doesn't stop the ACLU from making maps and claiming it's a Constitution-free zone.

"What's an average citizen to make of all these grey area"

Apparently, they make a map of it.

OK, but seriously... You can argue that the rule that allows them to search laptops at the border without a warrant is bad. You can argue that the rule that allows them to search for illegals 100 miles from the border without a warrant is bad. But it is counterproductive to claim that this means they claim they can search laptops 100 miles from the border. The law doesn't say this, they never said this (again, if I'm wrong on this, correct me) and it takes away from the actual arguments you can make about stuff they are ACTUALLY doing. It's not like they've been so restrained that you have to make stuff up to criticize them.
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Anonymous Coward, 12 Feb 2013 @ 6:15pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"The entire clause is not one sentence."

Which is why I provided that handy link, so you could read it in context. It was about half of section 287(a)(3) (which is the only section the 100 miles rule applies to), and the other half was about patrolling private land within 25 miles of the border.
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Bergman (profile), 12 Feb 2013 @ 6:16pm

Re: Re: Re:
Kinda like saying that if someone does it, it must not be a crime...because nobody breaks the law. Therefore robbery, murder and rape are all legal.
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Anonymous Coward, 12 Feb 2013 @ 6:22pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Apparently, not knowing doesn't stop the ACLU from making maps and claiming it's a Constitution-free zone.

The map by the ACLU is based on the clear language of the statue you've quoted multiple times while arguing hear about the specific application of laptop searches. That there is no clear picture of the limits of their power on laptop searches doesn't mean there is no clear picture on all of their powers. The clearly have the power to conduct warrantless, suspicionless searches within 100 miles of the border for 'aliens.' A fact you've pointed out multiple times but apparently it never clicked that this was a suspension of the 4th amendment. Go figure.

The law doesn't say this.

You think it doesn't based on your interpretation of the law. Yours is not the interpretation that matters. Given the facts at hand 'Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?' is a perfectly reasonable query. That you think you have a definitive answer to this query notwithstanding.
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Anonymous Coward, 12 Feb 2013 @ 6:28pm

then every embassy in the US would also have a 100 mile zone, as every embassy is it's own country.

but masnick we would like you to be honest for a change and post the actual law you are referring to. otherwise you are full of shit.. oh wait.. sorry.
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Anonymous Coward, 12 Feb 2013 @ 6:43pm

Re: Re: Re: Re: Re: Re: Re: Re:
Words.
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Anonymous Coward, 12 Feb 2013 @ 6:48pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"You think it doesn't based on your interpretation of the law."

Well, yes. But the law says what it says. When it says aliens, it does not mean laptops. If you find an interpretation of the law by any member of government that says otherwise, let me know.

"The clearly have the power to conduct warrantless, suspicionless searches within 100 miles of the border for 'aliens.'"

Not exactly.

Almeida-Sanchez v. United States.

"The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR � 287.1 would pass constitutional muster."

(This was the dissent, but note that the Court overturned the search in this case - even the members of the Court who would have made that search legal explicitly said that not all such searches are constitutional.)
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Anonymous Coward, 12 Feb 2013 @ 6:53pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"'Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?' is a perfectly reasonable query. That you think you have a definitive answer to this query notwithstanding."

But look at the very first sentence in this article.

"Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border."

It isn't asking "Does this mean the DHS is saying they have the power to search laptops up to 100 miles from the border?", it's flat out stating that DHS is claiming these powers. But I see nowhere any actual claim of that by DHS.
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Watchit (profile), 12 Feb 2013 @ 7:24pm

Guess what! That's my entire state... ah the joys of living on a peninsula...
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ebilrawkscientist (profile), 12 Feb 2013 @ 7:24pm

Muah ha ha ha ha, Look Honey, They Shrunk Their Own Country!
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Anonymous Coward, 12 Feb 2013 @ 7:25pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
No. It says aliens. Not things that will help them search for aliens. Aliens.

http://www.law.cornell.edu/uscode/text/8/1357

"within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle"

(the "reasonable distance" being 100 miles, as per http://www.law.cornell.edu/cfr/text/8/287.1)

I get what you're saying. It does say that the 100 mile thing is to search for aliens. Since the computer seizure is a property search for contraband, that 100 mile thing doesn't appear to apply. My guess would be that the 100 mile thing is where they can set up a checkpoint to find aliens. Once a checkpoint is set up, it's a "border search" and the Fourth Amendment rules that apply to such searches are in force. Or there could be other statutes that apply that you're just not looking at. I dunno the answer to that one. I'd have to research it. Nice work.
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Anonymous Coward, 12 Feb 2013 @ 7:54pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Not exactly.

Almeida-Sanchez v. United States.

"The United States does not contend, see Tr. of Oral Arg. 29, and I do not suggest that any search of a vehicle for aliens within 100 miles of the border pursuant to 8 CFR � 287.1 would pass constitutional muster."

(This was the dissent, but note that the Court overturned the search in this case - even the members of the Court who would have made that search legal explicitly said that not all such searches are constitutional.)

That's a great case to look at since the Supreme court there found that a search that was 20 miles from the Mexican border wasn't a "border search."
Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For *273 example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.47 But the search of the petitioner's automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border,5 was of a wholly different sort. **2540 In the absence of probable cause or consent, that search violated the petitioner's Fourth Amendment right to be free of �unreasonable searches and seizures.�
Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).

What evidence-ignoring FUD-packers like Mike are missing is that just because the search happens near the border, it's not necessarily a "border search" where the different Fourth Amendment rules apply. Almost all searches in this "Constitution-Free Zone" would be governed by the regular probable cause standards since they wouldn't be "border searches."
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Mike Masnick (profile), 12 Feb 2013 @ 11:13pm

Re: Re: Re: Re: Re: Re: Re:
The notion that the feds can seize and search any computer they want in that 100-mile zone is so stupid that it hurts.

I never said that they said that, nor do I believe it to be true. The point of the map, which I thought was clearly stated, was to highlight how ridiculous their specific contentions are that they have some ability to search laptops within a 100 mile radius of the border.

I specifically stated in the post that no one actually believed those were "Constitution free zones." The point of the map was to make a point about the specific DHS contention.

You either know that or you are the one spreading FUD.
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Anonymous Coward, 12 Feb 2013 @ 11:34pm

Re: Re: Re:
If it is a constitution free zone then federal law should not apply as it gets authority from the constitution, right?
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Boost, 13 Feb 2013 @ 6:32am

Re: Re: Re:
Yeah, I just re-read the Constitution and...the 4th amendment doesn't say anything about 100 miles from anything. So...yeah...reading, it's for the win.
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Anonymous Coward, 13 Feb 2013 @ 6:38am

Re: Re: Re: Re: Re: Re: Re: Re:
I never said that they said that, nor do I believe it to be true. The point of the map, which I thought was clearly stated, was to highlight how ridiculous their specific contentions are that they have some ability to search laptops within a 100 mile radius of the border.

But they absolutely CAN search laptops if certain conditions are met. The fact of the matter is that laptops can be searched anywhere in the United States, whether near the border or not. The issue here is whether the searches are legal. When it's a "border search," which is a term of art that has very specific meaning, then no suspicion or warrant is needed. When it's not a "border search," then regular Fourth Amendment rules apply. The mistake you're making is in thinking that they are saying that any search that occurs within 100 miles of the border is a "border search." It's not, nor did they say that. As the case law I quoted above demostrates, searches near the border are not necessarily "border searches." In fact, the vast majority of searches that take place in that 100 mile zone would not be "border searches" and would thus be governed by the usual probable cause/warrant standard. You don't point out any of this in your article because you're just a FUD-pumper.

I specifically stated in the post that no one actually believed those were "Constitution free zones." The point of the map was to make a point about the specific DHS contention. You either know that or you are the one spreading FUD.

You're the one that wrote an article with the FUD-filled title asking whether someone lives in a "Constitution-Free Zone." If, as you admit, there is no such thing, then you must concede that asking the question itself is pure FUD since it implies that such a thing exists. The fact is, what's a reasonable search under the Fourth Amendment changes with the circumstances. A search of your luggage at the border without warrant or suspicion is perfectly reasonable, but a body cavity search without suspicion is not. Away from the border, a suspicionless search is not reasonable. That doesn't mean that there's no Fourth Amendment protection at the border. It just means that the Fourth Amendment test is one of reasonableness, and what's reasonable changes with the facts.

I'd be happy to explain why pretty much everything you write day in and day out on TD is pure FUD, but I know you'll run away as soon as you start to look bad because you're a dishonest sissy who can't take criticism.
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Anonymous Coward, 13 Feb 2013 @ 7:41am

Re: Re: Re: Re:
Yeah, I just re-read the Constitution and...the 4th amendment doesn't say anything about 100 miles from anything. So...yeah...reading, it's for the win.

The Supreme Court's interpretation of the Constitution is the supreme law of the land. As the Constitution says, we are free from "unreasonable searches and seizures." The issue becomes one of reasonableness: Is a given search reasonable or not? Whether the search is reasonable turns on the facts. According to the Court, when the search is done at a border, no suspicion or warrant is needed for the search to be reasonable. It's not that the Fourth Amendment doesn't apply at the border, it's that what's reasonable changes because it's at the border.
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Anonymous Coward, 13 Feb 2013 @ 7:58am

Re: Re: Re: Re: Re: Re:
Words mean what they mean. Are you saying that unless the words used in laws have a definition spelled out in the constitution that it is meaningless? Maybe that is part of the problem and why simple phrases in the Bill of Rights like "Congress shall make no law" and "shall not be infringed" don't seem to mean anything to law makers or judges.
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Anonymous Coward, 13 Feb 2013 @ 8:10am

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I already told you. I was stopped (along with everyone else traveling down the highway at a checkpoint by US Border Patrol that was located 75 miles from the nearest border. You don't have to prove that they are claiming they can do it when you can show examples of them actually doing this.
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Anonymous Coward, 13 Feb 2013 @ 8:26am

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"I'd be happy to explain why pretty much everything you write day in and day out on TD is pure FUD, but I know you'll run away as soon as you start to look bad because you're a dishonest sissy who can't take criticism."

Translation: I'm sad because I can't slay the imaginary dragon plaguing the world.

It's okay AJ, there are more important things in this world than ego.
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Anonymous Coward, 13 Feb 2013 @ 8:29am

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I think you meant to reply to AJ. Either that or you missed the sarcasm in my comment. My point is border searches belong at the border, hence the name "border search".
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Anonymous Coward, 13 Feb 2013 @ 8:31am

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That's the problem. 100 miles isn't "a reasonable distance" for the simple reason that most of the people being searched there never crossed the border at all.
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Anonymous Coward, 13 Feb 2013 @ 8:47am

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"was to highlight how ridiculous their specific contentions are that they have some ability to search laptops within a 100 mile radius of the border."

But please, please tell me: WHERE did they make this specific contention? Because the law says they can only search for aliens within that 100 mile range, not laptops.

They may have "some ability" to search a laptop 100 miles from the border, but so does the local police. Wouldn't they at least need either probable cause of a crime (bringing it to about the level of any other enforcement agency), or be reasonably certain (a higher standard than probable cause) that the laptop was directly taken there from outside the US? If they ever claimed otherwise, please show me where.
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Anonymous Coward, 13 Feb 2013 @ 8:48am

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That's the problem. 100 miles isn't "a reasonable distance" for the simple reason that most of the people being searched there never crossed the border at all.

And chances are that most searches within that 100 mile zone are not "border searches." You might want to read the Almeida-Sanchez and the Brignoni-Ponce cases from the Supreme Court. The Court agrees that not all searches in that 100 mile zone are reasonable. You can be searched within 100 miles of a border, yet not have it be a "border search."
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Anonymous Coward, 13 Feb 2013 @ 9:03am

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Still the reality of this is that the spirit of the 4th amendment is that US Citizens are not to be stopped without probable cause and searched without a warrant period when going about their day to day lives inside their own country. Entering the country is something completely different which is why border searches (all kinds) belong at the border and other points of entry and no where else.
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Mr. Applegate, 13 Feb 2013 @ 9:06am

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Given the changes made after 9/11 I am not nearly as certain as you that it is "Sill good law". DHS is given rather long leash and is allowed to create it's own rules because our government officials are to lazy to properly write laws.

This is seen everywhere like the Librarian of Congress deciding every three years if it is legal to unlock a smartphone.

Allowing the EPA to establish the rules about pollution is another example of giving a governmental body (other than congress) the power to "make law".

Can we agree that it is well accepted practice that US Customs (a division of DHS) can search laptops at the border?

I think that answer is yes.

Can we agree that US Customs (a division of DHS) is searching people in locations other than at the border without cause?

Perhaps you don't think that is happening.

I offer:
http://americanvisionnews.com/1058/homeland-security-begins-random-armed-checkpoints
https: //www.checkpointusa.org/DHS/homelandSecurity.htm

Just do a search for "DHS Security Checkpoints" for some interesting reading.

So legal or not DHS is doing searches other than "At the Border" and against American citizens. It is not a huge leap to expect that they might try to search your laptop since that is an 'authority' they have 'at the border'. and DHS now claims that anything within 100 miles of the border, is "the border". They have already gone way beyond what actual legal authority they really have.

There are a lot of 'illegal' things that go on in this country. That doesn't mean they don't happen.

Perhaps that is the area of disagreement, you seem to be of the opinion the DHS would never 'cross the line'. In fact they cross the line daily, and people rarely push back, which gives them reason to push just a bit more.

I certainly am not saying it is legal, I will say it happens. I have been illegally stopped, searched, and they did take my smartphone (though it was returned and I was released with no citation issued after 10 minutes).
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Ninja (profile), 13 Feb 2013 @ 9:14am

Re: Re: Is that all?
"The girl was a legend, miles ahead her fellow businesswomen, as if God Himself had designed those stunning curves, and possessing the only unsearched cavity in the whole TSA-infested country."
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Anonymous Coward, 13 Feb 2013 @ 9:19am

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Still the reality of this is that the spirit of the 4th amendment is that US Citizens are not to be stopped without probable cause and searched without a warrant period when going about their day to day lives inside their own country. Entering the country is something completely different which is why border searches (all kinds) belong at the border and other points of entry and no where else.

I think you're misunderstanding the Fourth Amendment issues at checkpoints. The Court says this:
While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists' right to �free passage without interruption,� *558 Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which� �(a)ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.� � United States v. Brignoni-Ponce, supra, 422 U.S., at 880, 95 S.Ct., at 2579.

Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search. This objective intrusion the stop itself, the questioning, and the visual inspection also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop. In Ortiz, we noted:

�(T)he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.� 422 U.S., at 894-895, 95 S.Ct., at 2587.

In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must take into account the overall degree of interference with legitimate traffic. 422 U.S., at 882-883, 95 S.Ct., at 2580-2581. We concluded there that random roving-patrol stops could not be tolerated because they �would subject the residents of . . . (border) areas to *559 potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. . . . (They) could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road . . ..� Ibid. There also was a grave danger that such unreviewable discretion would be abused by some officers in the field. Ibid.3

Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops. Moreover, a claim that a particular **3084 exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review.13
United States v. Martinez-Fuerte, 428 U.S. 543, 557-59 (1976)
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Anonymous Coward, 13 Feb 2013 @ 9:24am

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No, but if the word HAS a definition spelled out in the Constitution (or in law), then you use that definition.

The whole point was, they DIDN'T want people charged with treason for just making laws other people didn't like, or making an unpopular speech on the House floor.
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Anonymous Coward, 13 Feb 2013 @ 9:36am

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No, but if the word HAS a definition spelled out in the Constitution (or in law), then you use that definition.

Correct me if I'm wrong, but I believe that treason is the ONLY crime that's defined in the Constitution.
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Anonymous Coward, 13 Feb 2013 @ 9:38am

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I didn't say that the decisions made by the courts didn't twist the meaning to say that it was ok. I said that the decisions that allow them violate the spirit of the 4th amendment.

Take for instance the 2nd amendment. What do you think the words "shall not be infringed" mean. It's really a simple little phrase that anyone with an elementary reading level is capable of comprehending. However, we have plenty of legislators and judges that continue to make and justify laws that violate this on it's face.
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John Fenderson (profile), 13 Feb 2013 @ 9:41am

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No, it does not. Treason is only engaging in war against the US or directly and materially supporting those who are engaging in war against the US.
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John Fenderson (profile), 13 Feb 2013 @ 9:46am

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And part of the problem is that it's not precisely clear what some of the language in the Constitution really means. The perpetual battle over the second amendment, for example, is only possible because there are two reasonable ways of interpreting the plain language, and those ways happen to be at odds with each other.
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John Fenderson (profile), 13 Feb 2013 @ 9:47am

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It means those regions where a specific Constitutional right (to be free of arbitrary searches) is largely inapplicable.
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Anonymous Coward, 13 Feb 2013 @ 9:56am

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I didn't say that the decisions made by the courts didn't twist the meaning to say that it was ok. I said that the decisions that allow them violate the spirit of the 4th amendment.

I don't think it violates the spirit. The test described in the Fourth Amendment is reasonableness. What's reasonable at the border (or its functional equivalent) is different than what's reasonable elsewhere. I also think there's some confusion here about whether the DHS actually has claimed that it can perform a "border search" anywhere in that zone. I don't think they did claim that, nor would it be true if they did. They can certainly perform searches in that zone, but those searches would necessarily be "border searches" that can be conducted without suspicion/cause/warrant.

Take for instance the 2nd amendment. What do you think the words "shall not be infringed" mean. It's really a simple little phrase that anyone with an elementary reading level is capable of comprehending. However, we have plenty of legislators and judges that continue to make and justify laws that violate this on it's face.

I have never studied or thought about the Second Amendment, so I don't have an intelligent answer to give you without researching the language a bit. I could compare it to the First Amendment that says free speech shall not be abridged. Whether something abridges free speech or not leaves a lot of wiggle room since "abridge" can mean lots of things.
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Anonymous Coward, 13 Feb 2013 @ 9:59am

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This is in effect what lawyers do. Play semantical games with the words of the law in order to twist them to mean whatever they want them to mean. Judges are almost always lawyers first. Same with legislators. So this is what we get. It's just like Clinton's weak response to being questioned about Monica Lewinsky.

"Well it depends on the meaning of the word 'is'";

Twist and turn it until it means what you want. That's what you are doing. The intention of the 4th amendment is clear regardless of what any of the other laws or judicial decisions are.

Border Patrol officers belong at the border and other points of entry. Period. That is where their mandate ends. We have plenty of other law enforcement agencies to handle everything else.
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Anonymous Coward, 13 Feb 2013 @ 10:00am

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It means those regions where a specific Constitutional right (to be free of arbitrary searches) is largely inapplicable.

And that's FUD. A search without suspicion/cause/warrant can only happen if it's a "border search." Not all searches in that zone are "border searches." In fact, unless it's at the border or its equivalent, then other rules apply. See above citation about checkpoints.
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Anonymous Coward, 13 Feb 2013 @ 10:02am

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sorry, should say: but those searches WOULDN'T necessarily be "border searches" that can be conducted without suspicion/cause/warrant.
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Anonymous Coward, 13 Feb 2013 @ 10:09am

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This is in effect what lawyers do. Play semantical games with the words of the law in order to twist them to mean whatever they want them to mean. Judges are almost always lawyers first. Same with legislators. So this is what we get. It's just like Clinton's weak response to being questioned about Monica Lewinsky.

You say that like it's a bad thing. ;)

Border Patrol officers belong at the border and other points of entry. Period. That is where their mandate ends. We have plenty of other law enforcement agencies to handle everything else.

Their mandate explicitly doesn't end at the border. In fact, I believe they have the power to make a search and seizure anywhere in the United States.
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Anonymous Coward, 13 Feb 2013 @ 10:13am

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And checkpoints period violate the spirit 4th amendment. People are not supposed to be stopped by law enforcement unless they have probable cause to suspect that the person has committed or is committing a crime. Our country was founded on the principles of being a free society of citizens who are innocent until proven guilty. Asking a person who has done nothing other than traveling about the country to even produce identification proving that they are indeed a legal citizen is in an of itself a violation of this principle. If there is no probable cause, why should a citizen have to prove that he is not an here illegally when traveling within the country? You are not supposed to have to prove your innocence.
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Anonymous Coward, 13 Feb 2013 @ 10:19am

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When he said it I criticized him for giving a weak answer. What he SHOULD have said was something along this line:

"Even if I HAD done what you are accusing me of, last I checked adultery wasn't against the law, and my personal life is MY personal life, so when you have a question that concerns the business of running the country, come back to me. Until then BUTT THE FUCK OUT of my personal life."

I would have had a lot more respect for him if he would have had the balls to give that sort of response.
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Anonymous Coward, 13 Feb 2013 @ 10:21am

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And as I said before, they are called BORDER patrol for a reason. They belong at the border. That is where their purpose is.
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Anonymous Coward, 13 Feb 2013 @ 10:29am

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"And checkpoints period violate the spirit 4th amendment. "

I agree with you, but drunk driving checkpoints have been found valid by the courts. May as well extend that map to include the entire US.
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Anonymous Coward, 13 Feb 2013 @ 10:29am

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Stopping me and having a drug dog sniff my car just because I happen to be driving down a particular highway constitutes and unreasonable search.
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Anonymous Coward, 13 Feb 2013 @ 10:31am

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Like I said. It's twisting the words of the laws to make it mean what they want it to mean despite violating the spirit of the 4th amendment. If you have reason to believe that I am driving drunk, fine pull me over. You have probable cause. You stop me just because I am driving down a particular road. No that is not probable cause.
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Anonymous Coward, 13 Feb 2013 @ 10:55am

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And non-border searches relating to other possible crimes are the mandate of the other law enforcement agencies within the country. Border Patrol officers need to be doing THEIR jobs instead of trying to do a job that belongs to someone else.
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Anonymous Coward, 13 Feb 2013 @ 10:58am

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And checkpoints period violate the spirit 4th amendment. People are not supposed to be stopped by law enforcement unless they have probable cause to suspect that the person has committed or is committing a crime.

That's a valid point of view, but I disagree. I think that checkpoints, such as for DUI on New Year's Eve or for aliens 50 miles from the Mexican border, are perfectly reasonable. The test is reasonableness, and sometimes checkpoints are reasonable even without suspicion.

Our country was founded on the principles of being a free society of citizens who are innocent until proven guilty. Asking a person who has done nothing other than traveling about the country to even produce identification proving that they are indeed a legal citizen is in an of itself a violation of this principle. If there is no probable cause, why should a citizen have to prove that he is not an here illegally when traveling within the country? You are not supposed to have to prove your innocence.

Passing through a checkpoint doesn't change the presumption that you're innocent. The reasonableness of the checkpoint stems from the government's interest in enforcing the laws.
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Anonymous Coward, 13 Feb 2013 @ 11:29am

Well, at least what happens in Vegas still stays in Vegas.
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Anonymous Coward, 13 Feb 2013 @ 11:54am

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Ok then is it perfectly reasonable to you to refuse to show your ID to one of these officers on the grounds that you do not have to prove that you are a citizen?

I completely understand the rationale behind it. My argument is that it is not reasonable and it violates the spirit of the 4th amendment.
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Anonymous Coward, 13 Feb 2013 @ 12:18pm

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And DUI checkpoints don't stem from the governments interest in enforcing laws so much as their interest in generating revenue. It makes it more efficient for them to write tickets that can will turn into revenue (whether those tickets are warranted or not). Public safety is the excuse used to sell the violation of their rights to the public. The whole purpose of requiring probable cause to get a warrant to search is to make it so that law enforcement are not able to go around harassing innocent citizens for no reason. You have to have a reason to suspect them before you bother them and you have to show that you have probable cause to a judge and prove to him that it is reasonable in order to get permission before you do a search. That is the whole point of the 4th amendment.
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Anonymous Coward, 13 Feb 2013 @ 12:30pm

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And DUI checkpoints don't stem from the governments interest in enforcing laws so much as their interest in generating revenue.

I'm sure that's a part of it, but I don't think that's the only reason. I've had two friends die because of drunk drivers. I think that law enforcement legitimately want to prevent such things, and I'm all for them setting up whatever checkpoints they want within reason.
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Anonymous Coward, 13 Feb 2013 @ 12:48pm

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I'm not saying that DUI isn't a problem that needs to be taken lightly. People who drive drunk need to be taken off the streets, not at the expense of the Constitutional rights of the law abiding citizens.

Also a false accusation of DUI can effectively ruin someone's life as well. The cost of fighting one (as well as just taking the plea to get it over with) is WAY too high. There is no accountability for the officers and prosecutors handling these and WAY too much incentive for them to make the arrest and prosecute the case anyway. I've had friends that have been through this.

And what is with these mandatory blood tests on holiday weekends? You don't just through out your legal rights just because it happens to be a holiday? You still have the right to have an attorney present and any attempt to forcefully take blood for a blood test is still a violation of those rights.
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Anonymous Coward, 13 Feb 2013 @ 1:00pm

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Back in the 80's when MADD first started their very public campaign to urge people to designate a driver when going out for a night of drinking they initially had a measure of success with it and the DWI rates dropped significantly as a result. However, since a drop in the number of DWI's being written also meant a decrease in revenue for the city of Houston, in order to compensate for this, police officers began following cars full of people when they left a bar, finding an excuse to pull them over and then wrote everyone in the car that was intoxicated Public Intoxication tickets.

What happened then was many of the people who initially had embraced the concept of being safe by giving up their ability to drive themselves found themselves facing hefty fines anyway, and reasoned that if they were going to be ticketed anyway they might as well drive themselves. And the rates went right back up. Now tell me that is the police acting in the interest of the safety of the public.
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Anonymous Coward, 13 Feb 2013 @ 1:33pm

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I'm not saying that DUI isn't a problem that needs to be taken lightly. People who drive drunk need to be taken off the streets, not at the expense of the Constitutional rights of the law abiding citizens.

Also a false accusation of DUI can effectively ruin someone's life as well. The cost of fighting one (as well as just taking the plea to get it over with) is WAY too high. There is no accountability for the officers and prosecutors handling these and WAY too much incentive for them to make the arrest and prosecute the case anyway. I've had friends that have been through this.

And what is with these mandatory blood tests on holiday weekends? You don't just through out your legal rights just because it happens to be a holiday? You still have the right to have an attorney present and any attempt to forcefully take blood for a blood test is still a violation of those rights.

I want law enforcement to take drunk drivers off the street without violating their rights. I think that a reasonable checkpoint does just this. You imply that all checkpoints are unreasonable. I disagree. I say the more the better. I want every drunk driving asshole to have to look a law enforcement officer in the eye before they're allowed to drive on inch more.
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Anonymous Coward, 13 Feb 2013 @ 1:49pm

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I want law enforcement to take drunk drivers off the street without violating their rights. But they ARE violating their rights. You have the right to refuse a breath test. They can get a warrant to get a blood test which they basically set up a rubber stamp process for these on these weekends to give lip service to the law. And you also have the right to have an attorney present during your interrogation. So before they try to take your blood, how many times do you think they will wait for your attorney?

I don't like drunk driving any more than you do. I think they all deserve what they get. The difference with me is that I want them to have DUE PROCESS first. Not throw out the rights just because it's a target rich environment for the city to make it's yearly budget quotas.

And you don't seem to care that people who aren't guilty of anything happen to get caught up in all this and that there is no accountability for making a false accusation where that costs thousands of dollars and lots of time and energy to defend. You don't care that innocent people are collateral damage in the process.
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Anonymous Coward, 13 Feb 2013 @ 2:23pm

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There is really only one way to interpret "shall not be infringed". It's just that judges and law makers seem to like to simply ignore that part of it.
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Anonymous Coward, 13 Feb 2013 @ 3:28pm

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Leave that to Will Smith and Tommy Lee Jones.
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LookingOverMyShoulder (profile), 13 Feb 2013 @ 6:45pm

Re:
Well after they have slapped you up the side of the head a few times with those batons they have prying it from your well manicured hands won't be a problem.
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LookingOverMyShoulder (profile), 13 Feb 2013 @ 7:09pm

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In the above document:
ICE and CBP exercise longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent. Two public Directives issued in 2009 (CBP Directive No. 3340-049 �Border Search of Electronic Devices Containing Information� and ICE Directive No. 7-6.1 �Border Searches of Electronic Devices�) impose requirements governing use of this authority in searching, reviewing, retaining, and sharing information contained in electronic devices.

I believe the operative phrase is "warrantless searches of merchandise at the border and its functional equivalent."

Functional equivalent I'd say is their 100 mile zone and airport check points.

also in the next section:
Fourth Amendment
The overall authority to conduct border searches without suspicion or warrant is clear and long-standing, and courts have not treated searches of electronic devices any differently than searches of other objects. We conclude that CBP�s and ICE�s current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits. However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012.

Here this is the next step they take thinking they are acting in a manor that doesn't not help our civil rights. If you can parse out that crap you are better at English than I am.

We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.
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Anonymous Coward, 14 Feb 2013 @ 4:50am

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I believe the operative phrase is "warrantless searches of merchandise at the border and its functional equivalent."

Functional equivalent I'd say is their 100 mile zone and airport check points.

"Functional equivalent" is NOT that entire 100 mile zone. "Functional equivalent" means things like airports. That's made clear in the Supreme Court cases I cited above. FUD-packing fact-haters like Mike want to scare people into thinking that DHS can do suspicionless/warrantless searches anywhere in that 100 mile zone. That is not what DHS said, and it's not the law. It's complete FUD.
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John Fenderson (profile), 14 Feb 2013 @ 9:02am

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It's not really that simple, though. What do you do when exercising one right that "shall not be infringed" results in infringing another right that "shall not be infringed". It is impossible for any of the guaranteed rights to be absolute.
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John Fenderson (profile), 14 Feb 2013 @ 9:06am

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How is it FUD? The border patrol has proclaimed the right to search anybody at the border or its crossing. Courts have upheld this. The "border" is anywhere within 100 miles of the actual border or an international airport.

Where is this wrong?
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Anonymous Coward, 14 Feb 2013 @ 9:36am

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I don't think those words appear anywhere else in the Constitution. And I don't see where the right to keep and bear arms in and of itself conflicts with any other rights.
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John Fenderson (profile), 14 Feb 2013 @ 10:01am

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The issue with the second amendment is not the "shall not be infringed" part. The issue is that the amendment can be reasonably interpreted in two ways: either everyone has the individual right to bear arms, or the states have the right to have armed militias, not necessarily individual people.

Both of these interpretations can be supported, and it's far from clear from the text what the founders really meant. This is the problem, and is why this argument will never, ever end unless we get a new amendment to clear it up.
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Anonymous Coward, 14 Feb 2013 @ 10:09am

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The meaning of the word militia at the time of the drafting of the Bill of Rights was the entire body of the citizenry that was capable of keeping and bearing arms, ie. the general public. The word didn't come to be associated with organized militias that we think of today like the National Guards until much later. So SCOTUS actually got that one right in their decision on Heller.
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Anonymous Coward, 14 Feb 2013 @ 10:12am

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And like I said before... the legislators and judges seem to want to ignore the "shall not be infringed" part and pretend like it is not even there. SCOTUS determined that it's an individual right, and that right according to the plain language of the Constitution "shall not be infringed". What is left to argue about?
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John Fenderson (profile), 14 Feb 2013 @ 10:22am

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So SCOTUS actually got that one right in their decision on Heller.

In your opinion. This is one of the supportable arguments, as I said. The other argument is equally supportable (what does "well-organized" mean? It certainly seems to indicate something different than just "anyone who can hold a gun")
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John Fenderson (profile), 14 Feb 2013 @ 10:23am

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And where is it being infringed?

There's quite a lot left to argue about, obviously. :)
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LookingOverMyShoulder (profile), 14 Feb 2013 @ 10:54am

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In my opinion and I think in the opinion of the SCOUS right now the 2nd amendment hinges on 2 words, militia and people.

In the body of the constitution it defines a militia as an armed body of troops. Anywhere else it uses the word people in the other amendments it is talking about the entire body of citizens and the meaning is that the citizens might need those arms to protect themselves from government run amok along with from thieves and other dangers.

If you read the Federalist papers it's quite obvious that protection from government was one of the reasons.
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Anonymous Coward, 14 Feb 2013 @ 11:01am

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It's actually a "well regulated militia" which is to mean a "well PREPARED population" that is capable of defending itself.
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Anonymous Coward, 14 Feb 2013 @ 11:06am

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See my prior comments below about "what lawyers do" with regards to arguing about what the word "infringed" means which is my initial point to begin with. Clinton tried to argue over the meaning of the word "is" and we all know what that means.
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Anonymous Coward, 14 Feb 2013 @ 11:11am

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But to ascertain the meaning of the statue you have to look at what the words MEANT AT THE TIME it was written, not what they mean today. Back then the word militia meant the entire population. Not an organized group of trained soldiers. Those didn't exist in the form that we have today.
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Anonymous Coward, 14 Feb 2013 @ 11:40am

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Would you consider the Hughes Amendment to FOPA infringing on the second amendment? I would.
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Anonymous Coward, 14 Feb 2013 @ 11:47am

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And besides, the first part of the second amendment is just an attempt explain WHY it is there, not a place a limitation on it.

"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."

The first part only explains it's purpose. If you remove that part altogether it doesn't add or take away from the right that it is intended to guarantee. So the whole argument about the meaning of the word militia is a side irrelevant one anyway.
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LookingOverMyShoulder (profile), 14 Feb 2013 @ 1:34pm

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I do feel like the average citizen should be able to purchase any weapon commonly used by any domestic law enforcement group/unit. Since most of those SWAT teams do have some weapons that are selectable between semi-automatic and fully automatic then that would mean I do believe that act is an infringement. Personally in a real fire fight to me all a fully automatic weapon would be good for is to make the other side keep their heads down at too high a price in ammo. I'd much rather depend on aimed fire.
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LookingOverMyShoulder (profile), 14 Feb 2013 @ 1:43pm

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The constitution was going to bring into existence a standing army. this made a lot of the people including patriots very uncomfortable since they had just finished a war of rebellion against a legal standing army. In fact Thomas Jefferson was one of those against having a standing army. James Madison was for having one if I recollect what I read of the federalist papers. The second amendment was to answer those fears. Today what do things look like? Do all of those invasive practices at airports and the cops showing up in riot gear an a peaceful demonstration seeking redress from the government make you feel safer and more secure in your person?
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John Fenderson (profile), 14 Feb 2013 @ 1:57pm

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Yes, yes, all of which is beside the point. The point being that there is more than one reasonable way to interpret this amendment. You're presenting one reasonable interpretation. It's not the only one, though. That's the problem.
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LookingOverMyShoulder (profile), 14 Feb 2013 @ 2:23pm

I do have a rather unique view .. If it were up to me I'd do away with anything at airports other than screening for explosives .. and I'd spend some time doing that to cargo not just passengers. It's my opinion that 9/11 happened because too many people listened to the government too much. The government said not to worry if you got hijacked just do whatever they say and we will negotiate you out of it. Well that works when all the want is a ride somewhere. But as we found out sometimes that's not all they want. It's my belief that there will never be another plane flown into a building. As long as they can be kept out of the cockpit, they will be buried in bodies both living, dead and wounded. It will not happen in a plane I'm on.
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Anonymous Coward, 14 Feb 2013 @ 5:01pm

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You're just an ignorant liberal shill who's so full of shit the whites of your eyes are probably brown.

"... the right of the people to keep and bear arms shall not be infringed."

There is only one interpretation of that phrase, and it is that keeping (owning) or bearing (carrying) arms (weapons) shall not be infringed (limited or revoked).

Note it does not say anything about any TYPES of arms, amounts, or anything else. You CAN read, right?
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Anonymous Coward, 15 Feb 2013 @ 7:39am

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While I agree 100% with your argument as it is exactly the point I was trying to make. Adding insults does not make it any stronger. It only makes you look like a troll. Although I disagree with John's perspective, he was expressing it with civility and thus deserves respect within the discussion as I was giving him. I suggest reserving those sorts of comments for the actual trolls that have proven that they do not deserve such respect.
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Anonymous Coward, 15 Feb 2013 @ 7:46am

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My position is that the argument that was made about the meaning of militia is a red herring. Removing that from the statue does not change the meaning. The only reason it is there is to provide some insight into WHY the statute was included in the first place. If you remove that part how else could you interpret it based on the meanings of the language as it was used during the time it was drafted?
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Anonymous Coward, 15 Feb 2013 @ 7:48am

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I agree 100%. I don't believe in wasting perfectly good ammunition. I've said for a long time that I believe in "effective gun control" which basically means hitting what you aim at.
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Anonymous Coward, 15 Feb 2013 @ 8:07am

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Again, I agree 100%.
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Anonymous Coward, 15 Feb 2013 @ 10:03am

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Furthermore, the British forces had just been repelled by a group of what basically consisted of armed citizens, so the statement that an armed citizenry was necessary for the maintenance of a free state meant that they had to be ready to defend themselves against threats from both a potentially tyrannical central government AND external forces bent on conquest.
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Anonymous Coward, 15 Feb 2013 @ 10:08am

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He also wasn't taking the other side of the argument. He was saying that both arguments are reasonable. I disagree. I think the other argument requires twisting the very plain language of the statue in order to be made.
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LookingOverMyShoulder (profile), 15 Feb 2013 @ 12:01pm

I must say this has been a very interesting discussion. Insightful questions and some well considered and stated beliefs. Not good enough to convince me mine is wrong, however.
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Anonymous Coward, 16 Feb 2013 @ 3:02pm

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"The people" means individual people. It would make no sense to specifically pass a amendment to say that the government had the right to bear arms - they already HAVE an army.

You think it means the states? Look at the tenth amendment. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." This clearly shows that "the United States", "the states", and "the people", as used in the Bill of Rights, are all different things. If the Second Amendment was supposed to refer to states, they would have said states. But they said "the people", so it refers to the people.
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Sheogorath (profile), 18 Feb 2013 @ 10:41pm

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I'm going to take that, rip it up and repackage it, then use it in a story. That is brilliant. (Yes, you'll get credited.)
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Sheogorath (profile), 18 Feb 2013 @ 10:47pm

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I'm going to take that, rip it up and repackage it, then use it in a story. That is brilliant. (Yes, you'll get credited.)
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Bruce Grossheim, 26 May 2013 @ 8:42am

Re:do you live
Yes they should militerize the Wisconsin border. To keep those life forms in....
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Jose_X, 11 Sep 2013 @ 10:49am

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> There is only one interpretation of that phrase

If there is only one, then I think the best interpretation is not yours but is something else closer to what the Supreme Court has decided in general.

Let's consider a parallel statement:

"The right of the people to eat food shall not be infringed."

I think most people would consider the above, absent further context, to mean A below rather than B.

A: "The right of the people to eat *some* food *in some way and in some quantity* shall not be infringed."

B: "The right of the people to eat *any* food *however they want and in whatever quantity they want* shall not be infringed."

I think you picked the less likely meaning, and I am fairly sure you are incorrect in insisting that only one meaning is possible and that it would be your meaning.

Here is another variation.

If I say that I can carry weights. Most people would not think I am saying that I can carry any weight imaginable but instead that there are some weights out there that I can carry.

Absent a modifier, the most natural meaning of a phrase is frequently not an extreme case but a gray area ("some") case. That is how we use English daily. If you modify, you are being extra specific. If you don't, you are leaving things more up in the air or are using a short-cut to mean something whose meaning is discerned from further context.

You will notice that contracts and regulations tend to be very wordy and precise, laws less so, and a Constitution the least precise of all or at least to allow the most room for maneuverability. That is not a requirement but a practicality. So while a Constitutional right might be to "bear arms" a law might mention that felons, civilians, the mentally disabled, young people, etc, have limitations.

This is what we find in society. Your absolutist interpretation is for frustrated commenting online.
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Jose_X, 11 Sep 2013 @ 11:01am

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>> And besides, the first part of the second amendment is just an attempt explain WHY it is there, not a place a limitation on it.

The first part adds context and context tends to matter.

Consider an alternative:

"Guaranteeing one's ability to hunt currently being a popular desire, the right of the people to keep and bear arms shall not be infringed."

or

"For the purposes of hunting, the right of the people to keep and bear arms shall not be infringed."

These imply different shades of gray.
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Jose_X, 11 Sep 2013 @ 11:08am

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>> Note it does not say anything about any TYPES of arms, amounts, or anything else.

Note it does n-o-t say,

"the right of the people to keep and bear *any* arms *without limitations* shall not be infringed?"

You simply assumed that in the absence of any modifiers that the default was one extreme case.
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Jana Murray, 12 Dec 2013 @ 9:11am

Hatteras Island, Southern Outer Banks
We are dealing with DHS through the guise of DOT, now that we are cut off from the Northern Outer Banks beaches. We had no warning, people are having to wait no less than an hour to ride on a 2.5 hour ferry ride. While they wait, an officer randomly checks IDs. We are anxiously hoping that the Southern Environmental Law Center is not going to be able to completely hijack this area, with the intent to block access to this thriving vacation community. http://wunc.org/post/dot-secretary-and-selc-director-debate-bonner-bridge#comment-1160151291
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Rick, 15 Jan 2014 @ 5:40pm

Contitution free zone
This judge should be prosecuted for treason and swing at the end of a rope
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anti-tod, 13 May 2014 @ 6:56am

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still techinically counts... though its more of a legal death by a thousand cuts than an actual war
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anti-tod, 13 May 2014 @ 7:02am

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felons are a funny phenomina(?),If you were a felon back then they busted out the rope and a couple tinders of wood or a tree if the had to... you didn't have the same criminals causing havoc because they were dead as door nails.
the constitution is based on a "you can do this and they can't stop you" reasoning (They being the government) If I want to "lift" 2 tons than I can because it's not the government stopping me but gravity.
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anti-tod, 13 May 2014 @ 7:08am

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time-period where you could purchase a galleon and all the cannons for if you had the money and personal cannons ON LAND... yeah the "extreme" modifier isn't the default at aaalll. Remember that they used the principles of a militia (ages 18-45/50) it was a case of BYOG (Bring You Own Gun) whether that was a cannon or rifle and you assisted in the defense of the nation
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anti-tod, 13 May 2014 @ 7:12am

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I'm more scared of a 50 something granddad with an old bolt gun than the mall ninja running around nowadays...
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Anonymous Coward, 21 Jun 2016 @ 10:38am

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Nope, they are treating it as 100 miles from an external port of entry, not where the physical border lies. That is why the stripe follows Lake Michigan, even though it is, going by the actual international border, entirely within United States waters. However, it can be considered a Port of Entry because it is on the external edge of the United States.
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Bill P, 26 Aug 2017 @ 12:01pm

Constitutional free zone
A "Constitutional free zone" means that there is no law, since the Constitution is the foundation of our laws and legal system there would be no laws, hence no authority to enforce any said laws.

The Constitution is not an optional component of our Government or of the laws and authority of the Government. With this current mentality we might as well go back to the absolute Monarchy Government we broke from England to get away from.
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