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Court: Suspicionless Searches of Travelers’ Phones and Laptops Unconstitutional (aclu.org)
2063 points by coloneltcb 23 days ago | hide | past | web | favorite | 580 comments

I’m not sure to whom the reasonable suspicion has to be announced? It makes it hard for me, a lay person, to understand the practical ramifications of this decision.

Would the suspicion have to be announced to me, when I’m asked to unlock my phone, or would it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone? If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?

The latter is only meaningful if the case goes to court, which feels like a stretch. There are many forms of punishment that can be meted out without having to go to court. Vexatious detention, confiscation of property, etc.

The former seems silly — surely I can’t impede law enforcement because they haven’t justified their authority to me?

The point of the law is that even if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court. This is a crucial protection for citizens. The point of the ruling isn't that it prevents the search, it prevents the result of that search from being used against you. If law enforcement wishes to establish the guilt of a suspect in court, it has to use only evidence it obtained through legal means.


That's certainly a crucial protection but if law enforcement conducts an embarrassing or destructive search (such as when police recently blew up a man's home), they can still essentially end you.

But yes, it's good that you can't be simultaneously nailed in court with illegally collected evidence.

* https://www.npr.org/2019/10/30/774788611/police-owe-nothing-...

And in such a case, you can sue for harassment. The police can't routinely violate your rights just for the heck of it, they need to show a good-faith belief that what they're doing is legal and could produce evidence useful in court.

> And in such a case, you can sue for harassment.

> they need to show a good-faith belief...

That's not how being a plaintiff works, which is what is frustrating about this type of situation.

They do some action which is legally questionable. You have to show standing and potentially damages to be able to bring the suit, then you have to prove that what they did was not a good faith belief that their actions were legal. The onus is on the person without the power with (typically) minimal resources.

From the article:

> But the problem with that argument, the appeals court ruled, is that courts have long held that police cannot be on the hook for property damage caused in the process of trying to make an arrest.

That was a rather different problem than directly harassing the unlawfully searched person.

In that case it was incompetence, gross negligence, and so on. Naturally it's hard to prove in court that the court's enforcement arm is at fault.

And at first the guy tried to sue for damages but that was thrown out - because it's so well established - but still that's the point that should be hammered.

Police can be held responsible if the arrest itself was illegal, an attempt to harass instead of execute the law in good faith.

Unfortunately there is still parallel construction: https://en.wikipedia.org/wiki/Parallel_construction

Honest question: can illegally obtained evidence be used to get a search warrant?

No, if a warrant is obtained using illegal evidence, then you poison the warrant and all the evidence arising from it.

Parallel construction happens way less frequently than people think it does, since it requires that there be an actual parallel path to the evidence that would have been available at the time the evidence was improperly obtained. It's basically only upheld when evidence was collected improperly through one means (i.e., a confession without Miranda disclosure), but could have been collected properly through other means available at the time of the improper collection (i.e., if the contents of the confession would have been revealed by a standard CSI search).

> Parallel construction happens way less frequently than people think it does

This seems like a rather vague claim

I used to be a public defender before I went into corporate and tax practice. Out of roughly 100,000 cases that went through the local PD office while I was there, fewer than 10 involved parallel construction.

Including the two neighboring counties, out of nearly 750,000 criminal cases during that time, only about 3 or 4 dozen involved parallel construction, and most of those were gang cases in which the parallel construction involved one of the gang members turning on his homies.

It's big news in local legal circles when the prosecution tries to use parallel construction to get evidence into the record because it happens so rarely.

It does happen more frequently at the federal level, but they also have significantly more resources to conduct investigations along parallel paths.

Those are the cases where the parallel construction was caught, right? What about all the cases where parallel construction was used and successfully kept secret?

I don’t think you have to be mirandized to give a confession, no?

Not a lawyer nor intimately familiar with the subject, so until someone more knowledgeable chimes in and at risk of making a fool of myself:

I believe it depends on context. If you're in police custody and being questioned, you need to be read your Miranda rights. If the police show up to your door and you suddenly blurt out a confession, I don't think it matters.

That's mostly correct, but it gets even more contextual: if you confess right when you greet the police, your confession is admissible.

However, once the police start asking questions, they have to show they had not created a "custodial" situation in which the suspect was not free to leave (or in this case, to close the door and tell the police to fuck off). In most states, the burden is on the defendant to show that a custodial situation was created; in some states, that is presumed and the police have to show that a custodial situation was not created.

You do have to be Mirandized if the prosecution expects to use that confession--or any evidence derived from that confession (under the fruit of the poisonous tree doctrine)-in court.

For the record--I am former public defender. And I successfully used the failure to properly Mirandize a client successfully many times to block the prosecution from introducing evidence.

I think you would to use that in court - https://en.wikipedia.org/wiki/Miranda_v._Arizona - IANAL.

Yes. If the magistrate fails to notice the illegal-ness of the evidence and gives the warrant, it is valid nonetheless.

If the illegal-ness later comes to light would a court consider evidence from the 'valid' warrant tainted? Always, sometimes?


In the specific case you're talking about, always.

IANAL, but my understanding is that evidence obtained from an invalidated warrant is disallowed, unless the court finds that it was inevitable that the state would have discovered the evidence.

Nope. If the government fooled the magistrate, it is disallowed. However if the magistrate has failed to decode the law correctly and issued an unlawful or unconstitutional warrant, the evidence obtained by the warrant can be used in court.

> if law enforcement finds evidence of guilt via illegal search, they cannot use that evidence in court.

This is not strictly correct. If law enforcement violates your rights via an illegal search, they cannot use that evidence against you. However, they may be able to use the evidence against others.

For example, suppose the police illegally search your house and find drugs and a list of customers. You may be able to exclude that evidence from being used against you but your customers may not be so lucky because it was not their 4th Amendment rights that were violated by the illegal search.

Interesting, so there is an incentive to do an illegal search especially for drugs where you might find a higher up.

Besides "parallel construction", there is a third-party doctrine: https://en.wikipedia.org/wiki/Third-party_doctrine

Unless they claim to be acting in "Good faith", that is, didn't think at the time that the search was improper and it wasn't clearly settled law.


You can win a Supreme Court case about a search being illegal, and still have that evidence be used to nail you on the original charge.

That’s not entirely true - I think the official term is creative reconstruction -and basically once they have evidence then they go back and document all of the things that, with perfect hindsight, would have caused reasonable suspicion so that obtaining the evidence then becomes justified. So John Doe has been caught transporting narcotics, and with perfect hindsight we know that John drives a much more expensive car then his his income allows, so that raised suspicion and justified searching the vehicle where the narcotics were found. That’s how it seems to work more or less.

You’re thinking of Parallel Construction


That’s it! Thank you

> surely I can’t impede law enforcement because they haven’t justified their authority to me

Unless you've broken the law (and certain special cases), they have no authority over you. Because of the nature of their jobs, which requires them to sometimes take away a person's freedom or life, they must be held to a much higher level of accountability than your average person.

You cite fear of harassment as a reason for not standing up to police, and to me that says something is deeply wrong with our current system.

>Unless you've broken the law (and certain special cases), they have no authority over you.

This is not true at the border. They can seize your property, and delay you for what the law would say is temporary, but is long enough to be a major inconvenience.

The search of a phone is like a search of any other thing in US law. Generally, searches require a warrant which implicitly requires probable cause, but there are some well-defined exceptions to the warrant requirement, and the probable cause requirement. One of these exceptions is the border search exception. US Courts have previously said this exception is reasonable for various reasons, and is an exception to both the warrant and probable cause requirements. The court in this case says it is an exception only for routine searches, and called the digital searches non-routine which don't fall entirely within the existing exception. Rather the court says non-routine searches don't require a warrant but do require a reasonable suspicion, a standard still below probable cause. A reasonable suspicion requires only the officer to have a suspicion they can state a reason for. For example, a phone's lock screen with CP would satisfy reasonable suspicion.

> Would the suspicion have to be announced to me, when I’m asked to unlock my phone[?]

No. Officers don't have to disclose to you their reasons. It's helpful, but not constitutionally required.

>[W]ould it have to be presented to a court, when they are asked to prosecute me based on the contents of my phone?

Not necessarily. In a criminal prosecution violations of the Fourth Amendment can be excluded by the court. The theory underlying the exclusion is that without the exclusion there would be nothing to stop cops from violating your Fourth Amendment rights. A criminal defendant must challenge the use of the evidence found, and the officer must give their reason when the judge is trying to determine whether to allow the testimony.

In the US, you can also sue the officers when they violate your rights and win money damages. That's what this case is. The officer as part of their defense must give their reasons to defend they didn't violate any constitutional rights.

>If they find illegal content on my phone, wouldn’t the prosecutor just tell the court “she matched a profile for the sort of person that carries illegal documents”?

Probably. Some courts may additionally require the officer to give a basis of why you fit that profile, or why someone who fits that profile reasonably is likely to carry illegal things. Typically just saying it matches a profile is sufficient.

A lock screen is a reason for 'reasonable suspicion'? I'm not saying you're wrong, but it seems unreasonable. If I have a lock on my briefcase it isn't reasonable to suggest it's full of contraband.

“lock screen with CP”

What's 'CP'? Is that supposed to be PC (Probable Cause)? I still don't get it.

They probably mean CP - child porn

Who talks about child pornography enough to need an abbreviation?

The internet? People like to abbreviate things.

Hopefully this stands (or gets challenged and reaffirmed in a higher court). This is a tiny step in the right direction when it comes to the border search exception, which has been upheld in the supreme court [1, 2]. Also commonly known as the 100-mile constitution free zone [3].

[1] Almeida Sanchez vs United States

[2] https://en.wikipedia.org/wiki/Border_search_exception

[3] https://www.aclu.org/other/constitution-100-mile-border-zone

So a govt agency does something illegal. To be honest, im not thrilled. They seem to be acting against the laws they claim to uphold all the time.

Do they get punished? Are they put under extra monitoring now?

This is not a democracy people, this is not "trias politica". Police brutality rampant, this merely being one more case. These court rulings seem rather useless, when the same govt keeps illegal torture prisons (Guatanamo) open, where people's lives are ruined without due process.

I didn't study law, but as far as I understand, illegal is not the right word here. They (govt) do things for which there is no legal precedence all the time. The court could also have found no problem with these searches. Now that they did take issue with it if the searches would continue then yes, that would be illegal.

"Evidence collected in breach of your constitutional rights" is probably a better way of describing the situation.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Sounds like the Court got it right.

I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended.


> I suspect you may know this, but there exist many locations and circumstances wherein various rights are suspended.

It sounds like this recent ruling may have rendered that page out of date.

From your link:

> According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle.

From the OP:

> In a major victory for privacy rights, a federal court in Boston today ruled that the government’s suspicionless searches of international travelers’ smartphones and laptops at airports and other U.S. ports of entry violate the Fourth Amendment. The ruling came in a lawsuit, Alasaad v. McAleenan, filed by the American Civil Liberties Union, Electronic Frontier Foundation, and ACLU of Massachusetts, on behalf of 11 travelers whose smartphones and laptops were searched without individualized suspicion at U.S. ports of entry.

"It sounds like this recent ruling may have rendered that page out of date."

Not exactly. Here, the only change is related to digital devices being searched. Everything else that happens at the border regarding searches is unchanged. So the limitation of the 4th amendment is still largely unaltered. But the protections have now been extended to digital devices only at border searches.

The article doesn't go into it (maybe the actual USSC does?) but I assume the logic here is that the reasoning behind the 4th amendment border search exception in the first place is to monitor what's coming across the border in terms of physical contraband (drugs, guns, animals, foods, etc.). There aren't really any concerns with digital devices. They are legal and anything done with them that might be illegal isn't related to the device crossing the border. And much of what can be done with them can also be done with any cheap device purchased in the states or using a cloud service (in the modern era). So randomly searching the devices doesn't really do much of anything related to border protection.

Ok so why do they do it? They're many examples. This one isn't even especially good because this employee was protecting his employer's privacy rather than his own.


It looks like the page has been updated:

> Part of a Broader Problem: The spread of border-related powers inland is inseparable from the broader expansion of government intrusion in the lives of ordinary Americans. For example, CBP claims the authority to conduct suspicionless searches of travelers' electronic devices—such as laptops and cell phones—at ports of entry, including international arrivals at airports. These searches are particularly invasive as a result of the wealth of personal information stored on such devices. At least one circuit court has held that federal officers must have at least "reasonable suspicion" prior to conducting such searches and recent Supreme Court precedent seems to support that view.

Although the court ruled that such searches require reasonable suspicion the court also denied any form of injunctive relieve forbidding CBP or ICE from conducting such searches in cases where there is no reasonable suspicion. Until such an injunction is given expect CBP and ICE agents to continue to perform searches based upon current agency policy.

And yet the fourth amendment says what it says. I'm prepared to agree to disagree with the Supreme Court on the subject, but the bill of rights is, to me, clear.

The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant. What counts as "reasonable" is very much not clear unless you look beyond the text.

There's no evidence, for instance, that the fourth amendment was meant to prevent customs checks at the border. Inside the US, customs checks would be unreasonable searches, but at the border they have always been legal.

Phone searches are nasty, invasive, and not like a customs check at all. That's why we have courts to distinguish them.

> The fourth amendment just says searches have to be reasonable, not that they have to be done pursuant to a warrant.

The only reason it doesn't say that is that it's inherent in the term "warrant". A warrant is exactly the legal authority to use force on behalf of the government contrary to the rights which the law would normally guarantee, which is a prerequisite for performing any search or seizing any property (absent the owner's consent, of course). Any law purporting to authorize searches is a warrant, though not necessarily a constitutional one. There is no such thing as a legal search or seizure without a warrant. There are only unauthorized, and thus illegal, searches and seizures, and unconstitutional warrants.

If "reasonableness" were enough on its own—in other words, if obtaining a warrant were not a necessary part of the process of conducting a search—there would never have been any reason to place further restrictions on the issuance of warrants, and the entire second half of the 4th Amendment would be void.

I used "warrant" in the same sense that Wikipedia uses it in the context of searches. I could have been more specific and said "judicial warrant" or "court order."


Is a customs check reasonable without probable cause?

I understand the pragmatic argument, but not the implicit presumption that an upstanding citizen would come home with contraband.

This court decision linked ends up concluding that CBP doesn't need a warrant, but they do need reasonable suspicion- a much lower standard- before performing a search. More than no suspicion, which is what CBP etc were claiming.

I wonder how much effect this will actually have. Will they count rejection of voluntary search as suspicion of wrongdoing?

"reasonable suspicion" is a term of art, not a new thing that was just invented by the court. There is already an abundance of case law that explains what can count as reasonable suspicion and what can't. Refusing a voluntary search is not enough for reasonable suspicion.

Here's an explanation of reasonable suspicion in comic form (part of a larger chapter on 4th amendment law): https://lawcomic.net/guide/?p=1833

It's a trial court opinion, so quite possibly not much, depending on what precedent gets set on appeal.

I cant think of a single amendment that isn't qualified in some way. But kudos if you or someone takes an issue like this to the supreme court.

It's important to remember that Courts trade in Opinions not Facts. Their rulings have the force of law, but they aren't always correct, and indeed are often overturned. It's appropriate to have disagreement.

Saying "rights are suspended" is a very nice way of putting it. Sounds more legit that way than what I call it, "the government breaking it's own laws".

To be fair, these searches were prior to entering the United States.

In the United States, such an act would clearly be against the 4th Amendment. It was less clear here.

But the searches are being done by agents of the government, the constitution limits what the government can do

What do you mean? The searches happened at US ports of entry on US soil and were conducted by agents of the US government. In many cases the victims were US citizens. It was already a clear 4th amendment violation; the court has merely affirmed that.

I understood that someone was denied entry to the U.S. based on a search; i.e. they couldn't enter the U.S.

This decision only covers electronic devices. All other items can still be searched without suspicion or warrant at the border, see here: https://en.wikipedia.org/wiki/Border_search_exception

> unreasonable

> suspicionless

Now do guns next!

But are travelers (foreigners) part of "the people"?

If you're on US soil you're subject to US law, including all provisions of the Constitution. And the Constitution makes a distinction between 'citizens' and 'people' (i.e., everybody, including noncitizens)

Aside from all the arguments brought up so far, there's that word "unreasonable" which the courts have historically interpreted with an "expectation of privacy" standard. You have a high expectation of privacy when you're in your house, somewhat less when you're in a car, and much less when you're entering an airport or crossing a border.

In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws. If customs couldn't do this, then importation laws would have no teeth, which is clearly not the intention of the constitution, which gives Congress the explicit power to enact and enforce them.

CBP argues that their smartphone and laptop searches were just an extension of that old custom, the court disagreed, ruling that a smartphone or laptop is fundamentally different from a ship's log or traveler's trunk, such that a higher expectation of privacy exists.

You rightfully argue that lowering protection boundaries was necessary to uphold the law. The same logic can be applied in reverse though - there is no practical need to smuggle data into the country on a physical device nowadays, so why search devices?

I'm sure that was part of the ACLU's winning argument.

Your examples of searching cargo aren't comparable though. The closest analog version to phone or computer searches would probably be searching an individual's private papers, personal journal, and list of contacts.

The incomparability is the point.

Are you sure? The GP post seemed to be using the comparison to explain why these types of searches are in fact in line with historic border & import practices because those historic practices could include a search of cargo, luggage, etc. It certainly appeared that post was attempting a direct comparison.

No, I was explaining that it is not an open and shut case on a bare reading of the 4th,and I was explaining CBP's theory of law for the case.

It's like everybody who's replying to you didn't read your last paragraph

No, I read that, but the author presented a viewpoint from the historic example of luggage, cargo, etc. searches and then simply stated the courts disagreed. Expanding on that to talk about why those things are in fact different and not comparable is a salient point, and not something that a reader of the GP comment would necessarily come away with otherwise.

Because the reasons are fairly obvious to everyone here. Smartphones are basically an extension of our brains. They are our eyes, ears, mouths, and memories. Searching a smartphone (and usually copying its contents) is an invasion of privacy far beyond flipping though a ship log or traveler's diary, so that precedent isn't good enough to establish reasonableness.

Well, maybe what I wrote was redundant then.

Not really the same thing. The same thing would be customs taking your phone apart with a screwdriver to search it’s physical contents.

In the old days it was also routine for people to own eachother so I’m not sure how much that really means.

Yeah, and there was a constitutional amendment that changed that. There is no constitutional amendment that removes the word "unreasonable" from the 4th. CBP's argument is that these searches are reasonable, given the reduced expectation of privacy.

Eh, I don't like these types of searches, but your argument from slavery doesn't really hold either. If it did, then any law that coexisted with slavery could be rendered equally invalid: "It was routine to imprison people for robbing banks... Yes, but it was also routine for people to own each other, so..." and so on.

Classic whataboutism.

"In the old days" is just Argument from Tradition. We also used to treat infectious disease as demonic possession. Next argument, please.

Looking at how a law has been implemented in the past is a basic legal principle. The reason for it is to provide context as to the intent and proper way to interpret a law, in order to ensure continuity and consistency in it's application. The idea is that, all other factors being equal, continuity and consistency are desirable.

Though it is also a basic legal principal to determine if the circumstances that gave rise to a law are still in effect, and if not the law may be rendered moot. So much so that laws that haven't been enforced for an extended period of time can be challenged & overturned on exactly that basis if someone suddenly finds themselves on the wrong side of such a law. I'm just making that distinction though; In this particular case, there is still a continued interest in controlling what enters & leaves the country. The specific issue with this court case revolves around whether personal electronics are truly comparable to items that have traditionally been subject to searches. The court says no, they are not comparable, which seems to make sense: Such devices are less like cargo or luggage and more like personal papers, journal, etc.

> In the old days, it was routine for customs officers to search ships coming in to harbor, including the effects of their passengers, to enforce importation laws

Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws. It's not comparable. It's probably still today reasonable to search ships in the harbor and passengers for physical substances (like banned animals or fruits/vegetables), but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.

Evidence of the four horsemen[1]. Child porn, terrorism, drugs, and the all-encompassing "organized crime" — which can include money laundering, which in turn can mean having enough money the government wants to steal it.

[1] https://en.wikipedia.org/wiki/Four_Horsemen_of_the_Infocalyp...

> but it's not obvious to me how searching electronic devices achieves any reasonable objective related to customs law.


> Yes, but electronic devices can't digitally contain physical substances that might be subject to customs laws

Child porn is prohibited to be imported in any form, including digital. Customs isn’t about just physical objects.

Of course not, but there is a degree of proportionality here. In theory a person's personal diary, letters, chequebook etc could contain evidence of crimes. However it's generally not been considered appropriate to read through them during a customs search.

The rights granted under the constitution were provided explicitly under the knowing assumption that they could be used to conceal actual crimes or criminal intent. That's the point of them needing protection from the authorities. The mere possibility of committing a crime isn't enough grounds to invade a person's privacy to that degree. You need actual reason to suspect it in an individual case to go that far.

I'm not sure about the legal justification, but I don't think that is true in practice. For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.

> For example a tourist or someone on an expired visa (edit: or an unexpired but non-immigrant visa) doesn't have the same 2A rights as a US citizen or permanent resident.

AFAICT, that’s the practical effect of a holding of an single intermediate appellate court this year on an issue that while important on its own was kind of a side issue in a campaign finance case, and the rationale seems a bit wobbly; and it's logic actually assumes as a starting point hat non-immigrant visa holders having the same 2A rights as everyone else.

While it is for the moment binding precedent within the 9th Circuit, I wouldn't draw any broad generalizations from it, or, even, assume it will hold up on the future.

I think that ruling flies in the face of the Constitution, there's no exception that I can find in "the right of the people" that says non-citizens don't qualify.

There are a variety of federal laws that codify that as well, and I think they're all unconstitutional also.

Have the higher courts have addressed that? The tourist example I'm expecting they _should_ since they are not breaking any law.

Hm. Page 27: https://fas.org/sgp/crs/misc/R44618.pdf

I'm ignoring FFL's because it's not directly relevant.

There was a recent court case about this (Rehaif v. U.S) where the Supreme Court made a decision about the law making it a felony to knowingly possess a gun in the US while here illegally. The prosecutor said "knowingly" just refers to the gun possession, but Rehaif's lawyer said it should refer to knowingly possessing the gun and knowing that you weren't in the country legally (Rehaif claimed that he hadn't read an email saying his student visa was revoked before he rented a gun at a shooting range). The Supreme Court said that "knowingly" referred to both the possession and the legality of one's presence. Presumably that means they're OK with a law that discriminates against some non-citizens on US soil.

Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license). Even if he hadn't lost his visa he'd still be breaking a different law. It's illegal for people visiting with tourist visas to go to shooting ranges, but for tourists visiting from countries that don't require visas it's OK.

> Another thing that I just learned it is actually still illegal to borrow a gun at a shooting range if you have a non-immigrant visa (unless you have a hunting license).

Huh; do you have a citation for this? I used to bring scientists from other countries to the shooting range for the cultural experience, and almost brought a pal from Europe hunting a year or two ago (on my license). Never realized I might have been putting them in legal jeopardy.

The actual law is here Title 18, Section 922, g(5)(B): https://www.law.cornell.edu/uscode/text/18/922 I would guess that it's not enforced very often.

If your friend was visiting from a European country that didn't require a visa to visit the US (most of them) you'd be in the clear.

Some discussion for non-immigrant visas about halfway down this article: https://reason.com/2019/01/12/illegal-aliens-guns-and-strict...

Looks like it was recently (thankfully) reversed and remanded: https://ballotpedia.org/Rehaif_v._United_States

Weird quirk with the huntling license, so that second example is a state law?

No, it's federal law that includes among it's explicit exemptions possession of a valid state hunting license. The law has not been much litigated, though the Ninth Circuit upheld it earlier this year in a case that was mostly a campaign finance crimes case but also involved gun possession by the foreign, non-immigrant defendant.

I don't think that is true in practice

It is true in practice.

One example: the children of illegal immigrants are legally entitled to public education, even though they aren't citizens.

This gets a couple things wrong:

1) People who aren’t citizens are still entitled to public education. Many green card holders go to US public schools, for instance

2) Anyone born on US soil is a US citizen regardless of their parents immigration status

Clearly parent is not talking about children born in USA, so your second point is not relevant. Your first point is just a restatement of parent.

The grant-parent said "children of _illegal_ immigrants" and the parent is talking about "children of _Green card holders_". Green card holders are those who have immigrated legally.

The question of the thread is to what extent non-citizens have particular rights. Parents cite two distinct yet substantially similar groups of non-citizens (one presumes that children don't have much agency with respect to the circumstances of their immigration). Both examples argue in the same direction on the question of the thread, so why does this distinction matter?

Is the first point a constitutional issue? I don't recall the constitution guaranteeing anyone a public education.

It doesn't require public education, but it restricts discrimination if it is provided by the state, as all states do. So, yes, it is a Constitutional issue.

Which part of rhe Constitution forbids discrimination based on citizenship status?

No part of the Constitution entirely forbids discrimination on any basis, but the part that is held to limit state discrimination on that basis is—as limits state discrimination on every basis—the equal protection clause of the 14th Amendment.

The equal protection clause applies to citizenship status. The key case on citizenship discrimination and public education is Plyler v. Doe, 457 U.S. 202 (1982) available at https://www.uscourts.gov/educational-resources/educational-a...

Even foreign diplomats' kids?

Only because the Supreme Court decided in 5-to-4 decision that the states don't have a "substantial state interest" that would allow them to deny it. See Plyler v. Doe.

Which is to say, the constitutional rights of non-citizens are hardly as obvious as they are for citizens.

This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law. You don't want to create a patchwork of different rules in different states based on presence granted and retracted at the sole discretion of the federal government. Once you're on US soil, you're largely treated the same as anyone else on US soil (or at least through the same framework), and that makes sense. If you should be removed, that's up to the Feds. To the extent you're not, you should be treated consistently.

You are of course correct that the rules do not apply evenly for immigrants and nonimmigrants, especially since nonimmigrants convicted of a crime are largely seen out as soon as their sentence is served. The same isn't true of immigrants.


This follows logically, in my opinion, from the idea that the federal government is solely responsible for matters of immigration law.

This argument makes sense, but I think it proves too much: states already have plenty of laws that restrict certain rights or privileges to citizens only. Your argument, as I understand it, is that since immigration status is a matter of federal law, states cannot deny a right (to K-12 education) on the basis of immigration status -- but it is commonly accepted that they can and do deny such a right in other circumstances, e.g. to serve as a police officer, for example, which I'm quite sure state laws deny to illegal immigrants.

are largely seen out as soon as their sentence is served

What do you mean by "seen out", exactly?

> What do you mean by "seen out", exactly?

Committing a crime of moral turpitude as a non-immigrant (and even some green card holders) makes you eligible for deportation. [1]

[1] https://www.alllaw.com/articles/nolo/us-immigration/legal-re...

Some years ago (as I remember this) it was allowed to deport any non-citizen who had committed a crime that could lead to a year or more incarceration - is that no longer the case?

It's probably more stringent now heh.

e.g. to serve as a police officer

You can't legally work in any job as an illegal immigrant - it's a Federal law: https://www.law.cornell.edu/uscode/text/8/1324a

It's true in practice in a lot of places. In some places, persons without ironclad immigration status can be hassled out of enjoying public services with spitefully racist levels of bureaucratic process. It is similar to how same-sex marriages were denied after being declared legal by county clerks that refused to issue the documents that record their marriage publicly. The kids aren't denied public education, per se, but they certainly cannot get the same education experience as citizens and legal residents get. No electives. No extracurriculars. No field trips. No cafeteria payment accounts. All those things require the proper forms, and proof of residency, you see.

As a bonus (malus?), the very same malicious process can be used against kids of homeless parents.

I disagree that it is true in practice, because the government can get away with claiming that not treating everyone on US soil equally is OK in the interest of public safety.


The well regulated militia is subject to regulation.

And every citizen and immigrant who intends to become a citizen man (and women in the Guard) at least 17 years of age and under 45 is a member of the Militia of the United States[1].

[1] https://www.law.cornell.edu/uscode/text/10/246

But for the purpose of militia in this context and therefore that of the 2nd amendment, the power of Congress over the militia is deemed "unlimited" [0]. As such, regulating it's use of arms would be well within it's remit.

[0] https://law.justia.com/constitution/us/article-1/58-the-mili...

... as long as such regulation does not infringe the right of the people to keep or bear arms for all the purposes envisioned by the constitutional framers.

Wikipedia has an excellent reference on this. See the "Experience in America prior to the U.S. Constitution" section: https://en.m.wikipedia.org/wiki/Second_Amendment_to_the_Unit...

The purposes of the framers appears to be a well regulated militia, and that militia subject to "unlimited" control by congress. I agree this would mean congress could not dismantle or subvert the purpose of the militia, but having tight controls over the weaponry at their disposal when not in a state of current or imminent battle would not seem to so undermine it. After all, even the professional military have much, much more tightly controlled access to & tracking of firearms than is imposed in civil society. It is hard to credit an argument that would say militia could not reasonably & constitutionally mirror those same controls.

See the Wikipedia article - it mentions several further purposes both separate from and contained in the notion of a militia.

In colonial era English language, well regulated refers to something being properly functioning, ie in working order. It has nothing to do with regulations.

That’s absurd. Regulate has had a pretty clear meaning from its Latin origins. (Regula: to rule)

Regulate is a form that appeared in Middle English that means “to control by rules”.

I’m all for guns and appreciating the inscrutable nature of the 2nd amendment. But words mean things.

If you look at the founders’ documents and writings on the subject, “well regulated” isn’t about “regulations,” but about the “proper functioning thereof, as the parent said. There is plenty written about the right to bear arms from that time period by those that wrote the constitution. Words do mean things and those meanings can’t be interpreted without historical context. The purpose of the 2nd Amendment is to protect against a tyrannical government — it’s illogical that the regulation by a potential tyrannical government was intended by the Constitution; it’s the fox regulating the henhouse.

How does a paramilitary organization "properly function" without regulations?

There's obviously a middle ground where regulation is allowed. There's no world where artillery, or arming the insane isn't acceptable in a civilized society. Conversely, the overreach of prohibition of arms in places like DC or NYC is not in alignment with the ideals of nation.

To me, the notion of armed civil insurrection against a modern state apparatus is absurd, and has been since the late 19th century. Civil disobedience and disruptive protest, including protest that undermines control of the armed forces, is the only check on the state's ability to wield force. Even a 3rd rate army is able to control civil unrest.

More specifically, "regulated" means something like "trained."

Q: How were colonial era soldiers trained?

A: Soldiers were trained to follow rules (aka regulations) and obey. Line up shoulder to shoulder and fire 3-5 volleys a minute in a prescribed manner. A rabble would get 1-2 off and die.

Yes, that's organizational discipline, not legislative decree.

I think we can all agree that a teenager with an AR-15 is not a "well regulated militia".

I was trained, by the Army, on the M16 as a teenager. We send teenagers to war zones right now.

There’s a very real possibility that a teenager with an AR15 is literally part of a well-regulated military group protecting the county.

Regulations are the means by which you make something be regulated. The relationship between these words hasn't changed.


The phrase "well-regulated" is an idiom that means something like "working as expected, calibrated correctly, normal, regular". You can't interpret an idiom literally based solely on the words that it's made from - idioms have their own independent meaning.

The following source gives examples from the Oxford English Dictionary of how the idiom was used from 1709 through 1894, demonstrating how the idiom 'well-regulated' has meaning beyond 'regulations' i.e. laws.


> 1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

> 1714: "The practice of all well-regulated courts of justice in the world."

> 1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

> 1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

> 1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

> 1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The sense of the term above is something like 'normal', 'well-ordered', 'regular'. Indeed the word 'regular' also shares the same origin as the word 'regulations', yet its common meanings are unrelated to the concept of regulations.

Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training", and elaborated (quoting another scholar, Thomas Cooley):

> The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”


The phrase "a well-regulated militia" in this context consequently means a militia that's learned, proficient, and effective in firearm use. In any case, what we're discussing is the preface of the amendment, which announces a purpose for the amendment and does not limit it. As the court wrote:

> The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

> Parsing the 2nd Amendment, the US Supreme Court wrote that "the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training":

The military calls rules that impose proper discipline and training "regulations". Such as Army Regulation 670-1, which states “While in uniform, personnel will not place their hands in their pockets, except momentarily to place or retrieve objects.”

The word "regulation" is perfectly compatible with the "well-regulated" idiom.

If it really is the case that the law is written in the form of an idiom then maybe we shouldn't be taking it as gospel and let it grant people right to individually own a weapon capable of murdering numerous people. I mean, if we really are going to say that the second amendment grants such rights then it's not too much to ask that it be explicit. The fact that it's not explicit is a good basis to interpret the phrase loosely and assume that the founding fathers did not envision the gun madness of today.

I agree with you - laws should be written in as plain, simple, and timeless language as possible. Idioms are something that I'd try to avoid if I was writing laws today. However, in this instance, the operative clause of the amendment is clear:

    the right of the people to keep and bear Arms shall not be infringed.
We can also understand the meaning of the amendment by examining the intentions, motivations, and beliefs of the people who wrote it -- what they were trying to achieve by doing so. There is extensive legislative history on this subject, which makes it clear that the founders believed that individual firearm ownership was an important and necessary preexisting right. The Supreme Court ruling that I've referenced goes into this history:

> By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence,”. Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

> And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”

> There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, (...) [citations omitted]


In the 1700s, the word "regulated" meant "in good working order." It did not have the association with law that we have now. You can look into the history, but if you don't care to, consider that "regulations" (as we've described them over the past few centuries) are a form of law found in modern bureaucracies.

That clause simply provides one important reason why "the right of the people to keep and bear Arms shall not be infringed". It's not a limitation or restriction on that right. For more an extensive deep-dive on the meaning of this amendment, see District of Columbia v. Heller, 554 U.S. 570 (2008): https://supreme.justia.com/cases/federal/us/554/570/#tab-opi...

> ... the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. ...

> Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia — if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny ...

> Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: (...)

> “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. (...) The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”

I'd appreciate a summary of this 23 minute long audio recording ;)

It's a summary of the court's opinion and reasoning (and dissenting opinion) in the https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller supreme court case, as to the constitutionality of DC's handgun restrictions at the time, in light of the second amendment. Worth a listen if you've any interest in how we regulate gun ownership, IMO.

If you use javascriptlets like:

This actually works in chrome, to speed up the audio playback, if you're short on time.

I added the title, but I wouldnt do it justice, Scalia gives a fantastic overview of what the militia is in the first few minutes.

You can skip the recording and read the ruling itself. It is fairly short and there is nothing in it that is difficult to understand.

When was this?

I assume shortly after the supreme court vote on this case - June 26th, 2008. Perhaps the same day.

Except travelers are not "on us soil" until granted entry by customs. Customs could just deny entry if foreign travelers won't voluntarily consent to search.

If you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all

The last time I so much as questioned an american customs agent about something they asked me to do, I was interrogated for 2 hours about my life, job, friends, family, phone searched, car flipped through, etc.

They even had 2 canine units circle my car and jump in and out of it at least 10 times each.

Talk about a heavy handed approach.

Some people get off on power, and this job is as close to having power over people as some can get.

As long as you know you're not actually carrying contraband or is a terrorist, just smile, comply when reasonable, and then say politely that you'd like to see their manager to file a complaint.

Weirdly enough this isn’t much of an issue in most other parts of the world.

Really? Because Canadian customs officers are known to be a bunch of tough guys too.

I travel across the US Canada land border from time to time (in the mountain west). My experience has been that Canadian officials are universally civil and respectful while US officials are universally not.

As a frequent traveler between the US and Canada, I’ve only ever got grief (including accusations of smuggling) from Canadian officials. Going to the Us side it’s usually a simple “have a nice day”.

And I have Canadian citizenship.

Same here. https://borderprivacy.ca/

Signed and donated. It happens to me every, single, fucking, time, losing 1 hour every trip back home.

In my experience on both sides, pleasantness is directly correlated to the number of cars in line.

Can confirm. Have crossed between New York/Ontario many times over the years.

It depends on the entry point. If I go through US customs in the Toronto airport, it's on Canadian soil. If someone there is having an issue with the process, they can withdraw their entry request and leave. That's perfectly fine and they shouldn't be punished for it. You don't have that option if you use a land crossing as you're physically inside the US.

> If someone there is having an issue with the process, they can withdraw their entry request and leave.

Since August 15, US border agents in Canada are now able to prevent you from withdrawing if they detain you. (Bill C-23)

Why would you be in US customs in a Canadian airport? I didn't know that exits.

Many US airports, especially away from the coasts, don't have any immigration/customs facilities, instead flights from Canada to the US go thru US customs in Canada (make sure you get to that flight early) since it's cheaper to put US facilities in a relatively smaller number of Canadian Airports

Not sure if parent is talking about https://en.wikipedia.org/wiki/United_States_border_precleara... or not, but yes, that's a thing.

I recommend caution when asking the agents at Shannon if the Republic of Ireland still has sovereignty from the United States of America. In my experience, it hits a nerve.

Why would you ask that?

The Bahamas also has US customs there. You do the immigration part before boarding your plane. And you land on the US on a domestic terminal and don’t go over customs.

But good luck explaining that to them.

I agree, I think this is more an argument to be made in court

But customers officers can't force you to comply can they? So whether or not they have any authority is irrelevant. Of course if you choose not comply you have to turn around.

It's already pretty well established as law. There's not really any room to argue.

Sure... but I don't know where US citizens will go if they do not have residence in another country. Not everyone getting searched reside outside the US.

In that case you as a citizen are allowed to enter, but whatever they're searching (phone, computer, etc) may be detained and you'll be given a receipt and (often) an opportunity to claim it at a later date.

That's not true. the Consitution makes a distinction between 'person' and 'citizen', but is painfully ambiguous about 'People'. In context, 'people' most likely means 'citizens'. Even if you mean 'persons', not 'people', it's still largely ambiguous.


'People' have rights:

> the right of the people peaceably to assemble

> the right of the people to keep and bear Arms,

> the right of the people to be secure in their persons, houses, papers, and effects

> other [right]s retained by the people.

> [powers] are reserved to the States respectively, or to the people.

'People' usually means 'voters':

> chosen every second Year by the People of the several States

> The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,

> the people fill the vacancies by election as the legislature may direct.

Government is made of 'citizens':

> No Person shall be a Representative who shall not have ... been seven Years a Citizen of the United States,

[etc for Senator, President]

and 'citizens' are covered by Federal Judiciary in interstate cases and interstate rights:

> judicial Power shall extend to all Cases ... between Citizens and ...

> The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Amendment XIV (1868) clarifies the difference between a 'person' and 'citizen', to some [insufficient] extent.

> All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

and makes the most interesting statement about the rights of a 'person'

> nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The reality is that the Constituation does not explain what are the rights of non-citizen persons, wihile at the same time repeatedly stating that not all persons are citizens.

You can split hairs on the wording, and many judges have, but the truth is that the authors just didn't write carefully about visitors and non-citizen immigrants, since international travel was very difficult in the 18th and 19th Centuries so not a big deal (except for slavery, which was a whole different mess).

Constitutional jurisprudence is really the sum of the text of the Constitution and the rulings held by courts.

IMO the BOR should apply to all humans, anywhere in the universe, when subject to US Government jurisdiction. Let's hope courts agree.

SCOTUS has generally leaned towards that interpretation, at least insofar as the rights involved are judicial in nature (e.g., due process).

Based on this reading, “people” elect the senate. If “people” includes travelers, does that mean travelers get to vote?

They aren’t prohibited by the constitution. In many jurisdictions, non-citizen residents can vote in local elections.

Interesting, I had no idea.

It depends on state/city law. In San Francisco, for example, non-citizens who have school-age kids can vote in local school board elections (as of last year).

Your reasoning may be correct, but not quite so obvious to courts. For instance, foreigners' right to keep and bare arms is routinely violated, even though they are people.

Courts have upheld the rights of foreigners (i.e., illegal immigrants) to bear arms. This does not mean that they get to bring them into the country.

> foreigners' right to keep and bare arms is routinely violated

Their rights are violated by courts?

Their rights are violated by others and not upheld by the courts.

Many states ban non-citizens from gun ownership. The courts have explicitly, and implicitly supported this interpretation of the second amendment.

It's pretty easy to make the case that nobody knows what the U.S. Constitution actually means.

Quite literally the opposite is true: https://blogs.findlaw.com/seventh_circuit/2015/09/non-citize...

Court upheld the right of an illegal alien to own a firearm.

> Applying intermediate scrutiny to the federal ban on arms possession by unauthorized aliens, the court found the law to be reasonable. Since unauthorized aliens "often live largely outside the formal system" and are "harder to trace and more likely to assume a false identity," the government may rationally limit their access to firearms.

> Thus, the Seventh Circuit leaves Meza-Rodriguez with the right to bear arms, but without the ability to exorcise that right under federal law.

What is the point of a theoretical right that can't be exercised in practice? Citizens of the USSR had the right to free speech, free political expression, etc.

> What is the point of a theoretical right that can't be exercised in practice?

It is perhaps a more accurate description to say that Meza-Rodriquez is in the class of people to whom the right applies, but that the right allows restrictions based on conduct, including illegal presence.

Does that same reasoning apply to free speech?

The First Amendment does not have the same restrictions as the Second Amendment.

To the extent that your speech does not also constitute illegal action, there are no restrictions on speech and those protections do not depend on nationality, citizenship, etc. All that matters is the jurisdiction of the US court system (since they can't enforce First Amendment rights if they don't have jurisdiction).

Some types of speech are also acts, like conspiring to commit a crime, or inciting violent action. In those cases, the content of the speech is protected, but the actions of the speech are subject to prosecution.

at the border you are not yet on US soil. They can deny you for any reason at all

As Taniwha pointed out above[0]:

> If you make that argument then the customs officers are also NOT on US soil and have no authority to search phones (or do anything) at all

[0] https://news.ycombinator.com/item?id=21518813

Even if that's true, that simply means the search moves a few feet to US soil, where they stand on one side of the border and you stand on the other. And they don't have to let you in if you're not a US citizen or lawful resident.

Doesn't being subject to search apply regardless of citizenship status?

No, if you're a citizen or lawful resident they have to let you in...eventually. Courts have ruled that they can hold you at the border for a few hours.

and constitutionally speaking, permanent exile isn't considered a punishment for noncitizens, so SCOTUS can rule whatever they want is unconstitutional, it still means they're gonna do it

That's completely untrue, as much as it would make sense for it to be. In fact, constitutional rights have not been applied universally to noncitizens by courts. Everything from the First Amendment onward has been limited by case law as it applies to non-US persons.

One of the best things about the USA here

While this is very relevant in a broad sense, it isn't at matter in this case.

The plaintiffs are 10 U.S. citizens and one lawful permanent resident.

Yes. The Constitution is very careful in its use of "people" (or "person") and "citizens".

I would argue that any individual deserves most or all rights outlined in the Bill of Rights, regardless of citizenship or geographic location. These are fundamental human rights. I'm aware this is not how the constitution is written, it's just my opinion.

Some of the Bill of Rights are fundamental human rights, like right to free speach and right to bear arms.

Others are not, like the Tenth Amendment.

The 4th Amendment is probably closer to the first category rather than the second.

There are cases of doing this to U.S. Citizens, in some cases, quite disturbingly, to journalists.

It's no more or less disturbing for journalists to be subjected to this. They're not some special class of protected people.

It's a lot more disturbing if other parts of the government can arbitrarily target people they don't like for harassment. There's a big difference between 10 random searches and 10 targeted searches. Journalists aren't that common. If there's a large cluster of journalists getting targeted in a close period of time, it's worth figuring out why that's happening.

Hmm...I thought they actually were a special class of protected people.

They'd like us to believe that. That's why they appropriated the term "the press" for themselves when it originally referred to a machine that was used to print. When 1A mentions "freedom... of the press", it's as one of a group of rights that apply to all people, not a group of different parties that have rights. That is, 1A protects everyone's freedom to operate a printing press, or use some other means of publishing and distribution that might have been invented since then.

I’d like to learn more about your interpretation of what “the press” is referring to; it strikes me as interesting that “operating a printing press” would be the explicitly enumerated right in such a (mostly) broad text, but then I am aware of the cultural differences over that many years means it’s not out of the realm of possibility. Do you have any articles or books I could read about this?

Back then, the "press" was the only method of communication other than actually talking to people. But the point was that the government couldn't infringe a method of communication.

EDIT: Note, for example, that the Federalist Papers that drove much of the discussion behind the policies in the Constitution were self-printed by Franklin, et al. Newspapers at that time were highly political and opinionated, like Fox News today, and did very little actual reporting of news. Journalists and "the press" didn't get conflated until much later.

The point is the government can't arbitrarily take away your medium of communication you legally own and use. Barring random specific issues (such as noise ordinances), if you own a megaphone (metaphorical or not) you can use it to spread your speech. If people could only exercise free speech by whispering quietly to themselves then it may as well not exist. You could start by reading wikipedia about freedom of the press.

That, I already understand. What I'm asking about is the narrower definition of "the press" in that historical context, because the usage nowadays is much broader.

You might argue journalists (amongst others) might be more subject to retaliatory harassment than ordinary people.

The freedom of the press is specifically called out for a reason.

The freedom of press in the 1st amendment refers to the printing press and the owners of those presses didn't want to be restricted on what they could print or be forced to print things they disagreed with.

It was not, in any way, intended to refer to "journalists", a group whose only defining characteristic appears to be employment by a certain group of private companies.


You are making a strawman: they are not a special "class" indeed.

But they have a very special position and role that makes them specially vulnerable when dealing with powerful institutions.

On the one hand, it's extra bad because searching a journalist leads to an additional violation: freedom on the press.

On th other hand, we should not think of 1A rights as rights that only specialists or professionals need.

(Much like we shouldn't think of police as relieving civilians of their duty to help maintain law and order and safety. Police augment and assist citizens, as public servants.)

Except that we can all journalists really. There's no professional mandate. Go to rallies and make videos and post them on your political blog? You should be considered a journalist.

Every person with a laptop / cellphone and a thought can be a journalist. See the Opinion column on big news sites...

And a NASA scientist with top secret info on his device, too

It's unfortunate that this is a reasonable question. I've been surprised to learn how conditional being treated like a human being really is (location, citizenship, etc.). It would be my preference for my country to treat all people kindly, fairly, equally.

If non-citizens are treated perfectly equally to citizens, what is the point in having a distinction between citizens and non-citizens?

Good question. I was going to say "yes" but the Heller decision has made that less clear.

My understanding of Heller was that it expanded rather than contracted the rights of the people against the excessive regulation of the state?

[EDIT:] great link, thanks!

This analysis is what I was referring to:


That's an interesting question. It's not restricted to only citizens (so applies to immigrants, etc.) but may not extend as travelers who are passing through or has no real connection to the country. Ref: US vs. Verdugo-Urquidez

> But are travelers (foreigners)

International travelers entering the US (who were subjected to the policy) are not all foreigners.

> part of "the people"?

Yes, "the people" in the Fourth Amendment (and most of the rest of the Constitution) are the people subject to the authority of the United States government, which is basically everyone within US territory, however transitorily, and not exempt from US authority by treaty (e.g., diplomats, etc., are excluded.)

It’s a bummer there is still so much serious political discussion about which people count as people.

That's a silly (mis)characterization of what this is. Some rights are only afforded to the citizenry, and that is not inherently evil and is often the only reasonable approach. Other rights are afforded to everyone. The discussion centers around teasing out what the Constitution means when it uses person/people.

I don’t think it’s silly to suggest that maybe all humans should have the same protections against their rights being violated.

Not everyone gets the same rights. That's why we have the word "citizen", and why citizens get different legal status. One of those rights is the right to vote. Are you saying you think anyone should be able to vote in the elections of whatever country they want? That seems pretty silly.

No, I don’t think everyone ought to have the right to enter my house at night time either, but my point does not collapse to such absurd suggestions. I was, of course, referring to the phrase “the people” in the text of the fourth amendment. I hope I don’t sound too silly suggesting that the right to not have property searched and seized unreasonably is not something that ought to depend on which country you were born or have gained citizenship in.

I do agree, but that's not what you wrote before. You wrote that "all humans should have the same protections against their rights being violated", which implies you think everyone should have the same rights. This clearly doesn't make sense, as I pointed out about voting rights. The bottom line is, not everyone has the same rights. Citizens of any country have more rights than non-citizens; there's nothing abnormal about this. You can argue that certain rights should extend to everyone (and I would agree), but this argument seems to have some disagreement about whether unreasonable-search-and-seizure is a right that should only be afforded to citizens or not, and I'm just pointing out that non-citizens don't get all the same rights as citizens.

Good news: none of the Bill of Rights are limited to citizens, and most are indeed broadly worded so that citizenship status is not a threshold requirement for the right to apply.

Depends on what you consider a "right" to begin with, which brings us full circle. I think some things are easy and most reasonable people will agree on (like here) but there are many which aren't so clear cut.

> I don’t think it’s silly to suggest that maybe all humans should have the same protections against their rights being violated.

Don't different countries have different views of rights? What happens when those rights are at odds? For example, Turkish people can't speak ill against their governments [0]. This contrasts with countries that have fewer restrictions on speech, like America.

So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?

Or is "protections" here more about procedural rights?

[0]: https://en.m.wikipedia.org/wiki/Article_301_(Turkish_Penal_C...

> Don't different countries have different views of rights?

And so they would apply their views in their own jurisdiction.

> What happens when those rights are at odds?

Whichever jurisdiction you stand in correspond to the rights that prevail for you.

The way I see it, a country says what the rights of people/humans are, and they defend those beliefs in their own jurisdiction, where they have the absolute power to.

> So I think the main issue is, how can all humans have the same protections if different jurisdictions protect different things?

I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.

> I think baddox's comment does not necessarily imply all humans in the world. I interpreted it as all humans in a given jurisdiction.

Ah I had not thought of it in this way but that makes sense. I can't disagree that all people in a single jurisdiction should be afforded the same procedural rights (I couch it in procedural rights because substantive rights are stripped from felons for example in many jurisdictions).

What is your argument here? The fact that human rights are not respected in all countries doesn't mean that humans don't have rights.

It means that we can't agree on the list to begin with, and it's not always cut and dry.

I’m sure the people didn’t get together in a referendum and decide to be not-allowed to criticize the government. That’s not a matter of not agreeing, it’s a matter of being told

And in between tyranny and the right of free speech (which not even all modern countries agree on I would add) there's a whole lot of gray. For example, is healthcare a right? How about voting for felons?

It doesn't make sense to extend the right to vote to tourists, for one. I could imagine a flood of tourists at election time from certain countries.


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