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“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and … forcibly enter?”— Supreme Court Justice Ruth Bader Ginsburg, the lone dissenter in Kentucky v. King
Americans are not safe in their homes.
Not anymore, at least.
This present menace comes from the government and its army of bureaucratized, corporatized, militarized mercenaries who are waging war on the last stronghold left to us as a free people: the sanctity of our homes.
The weapons of this particular war on our personal security and our freedoms include an abundance of laws that criminalize almost everything we do, a government that views our private property as its own, militarized police who have been brainwashed into believing that they operate above the law, courts that insulate police from charges of wrongdoing, legislatures that legitimize the government’s usurpations of our rights, and a populace that is so ignorant of their rights and distracted by partisan politics as to be utterly incapable of standing up to the government’s overreaches, incursions and power grabs.
This is how far the mighty have fallen.
Government agents—with or without a warrant, with or without probable cause that criminal activity is afoot, and with or without the consent of the homeowner—are now justified in mounting home invasions in order to pursue traffic violators, seize lawfully-owned weapons, carry out knock-and-talk “chats” with homeowners in the dead of night, “prevent” individuals from harming themselves, provide emergency aid, intervene in the face of imminent danger, serve as community caretakers, chase down individuals suspected of committing misdemeanor crimes, and anything else they can get away with.
This doesn’t even begin to touch on the many ways the government and its corporate partners-in-crime may be using surveillance technology—with or without the blessing of the courts—to invade one’s home: with wiretaps, thermal imaging, surveillance cameras, and other monitoring devices.
However, while the courts and legislatures have yet to fully address the implications of such virtual intrusions on our Fourth Amendment, there is no mistaking the physical intrusions by police into the privacy of one’s home: the toehold entry, the battering ram, the SWAT raid, the knock-and-talk conversation, etc.
Whether such intrusions, warranted or otherwise, are unconstitutional continues to be litigated, legislated and debated.
The spirit of the Constitution, drafted by men who chafed against the heavy-handed tyranny of an imperial ruler, would suggest that one’s home is a fortress, safe from almost every kind of intrusion. Unfortunately, a collective assault by the government’s cabal of legislators, litigators, judges and militarized police has all but succeeded in reducing that fortress—and the Fourth Amendment alongside it—to a crumbling pile of rubble.
Two cases before the U.S. Supreme Court this term, Caniglia v. Strom and Lange v. California, are particularly noteworthy.
In Caniglia v. Strom, police want to be able to carry out warrantless home invasions in order to seize lawfully-owned guns under the pretext of their so-called “community caretaking” duties. Under the “community caretaking” exception to the Fourth Amendment, police can conduct warrantless searches of vehicles relating to accident investigations and provide aid to “citizens who are ill or in distress.”
At a time when red flag gun laws are gaining traction as a legislative means by which to allow police to remove guns from people suspected of being threats, it wouldn’t take much to expand the Fourth Amendment’s “community caretaking” exception to allow police to enter a home without a warrant and seize lawfully-possessed firearms based on concerns that the guns might pose a danger.
What we do not need is yet another pretext by which government officials can violate the Fourth Amendment at will under the pretext of public health and safety.
In Lange v. California, police want to be able to enter homes without warrants as long as they can claim to be in pursuit of someone they suspect may have committed a crime. Yet as Justice Neil Gorsuch points out, in an age in which everything has been criminalized, that leaves the door wide open for police to enter one’s home in pursuit of any and all misdemeanor crimes.
At issue in Lange is whether police can justify entering homes without a warrant under the “hot pursuit” exception to the Fourth Amendment.
The case arose after a California cop followed a driver, Arthur Lange, who was honking his horn while listening to music. The officer followed Lange, supposedly to cite him for violating a local noise ordinance, but didn’t actually activate the police cruiser’s emergency lights until Lange had already arrived home and entered his garage. Sticking his foot under the garage door just as it was about to close, the cop confronted Lange, smelled alcohol on his breath, ordered him to take a sobriety test, and then charged him with a DUI and a noise infraction.
Lange is just chock full of troubling indicators of a greater tyranny at work.
Overcriminalization: That you can now get pulled over and cited for honking your horn while driving and listening to music illustrates just how uptight and over-regulated life in the American police state has become.
Make-work policing: At a time when crime remains at an all-time low, it’s telling that a police officer has nothing better to do than follow a driver seemingly guilty of nothing more than enjoying loud music.
Warrantless entry: That foot in the door is a tactic that, while technically illegal, is used frequently by police attempting to finagle their way into a home and sidestep the Fourth Amendment’s warrant requirement.
The definition of reasonable: Although the Fourth Amendment prohibits warrantless and unreasonable searches and seizures of “persons, houses, papers, and effects,” where we run into real trouble is when the government starts dancing around what constitutes a “reasonable” search. Of course, that all depends on who gets to decide what is reasonable. There’s even a balancing test that weighs the intrusion on a person’s right to privacy against the government’s interests, which include public safety.
Too often, the scales weigh in the government’s favor.
End runs around the law: The courts, seemingly more concerned with marching in lockstep with the police state than upholding the rights of the people, have provided police with a long list of exceptions that have gutted the Fourth Amendment’s once-robust privacy protections.
Exceptions to the Fourth Amendment’s warrant requirement allow the police to carry out warrantless searches: if someone agrees to the search; in order to ferret out weapons or evidence during the course of an arrest; if police think someone is acting suspiciously and may be armed; during a brief investigatory stop; if a cop sees something connected to a crime in plain view; if police are in hot pursuit of a suspect who flees into a building; if they believe a vehicle has contraband; in an emergency where there may not be time to procure a warrant; and at national borders and in airports.
In other words, almost anything goes when it comes to all the ways in which the government can now invade your home and lay siege to your property.
Thus we tumble down that slippery slope which might have started out with a genuine concern for public safety and the well-being of the citizenry only to end up as a self-serving expansion of the government’s powers that makes a mockery of the Fourth Amendment while utterly disregarding the rights of “we the people.”
Frankly, it’s a wonder we have any property interests, let alone property rights, left to protect.
Think about it.
That house you live in, the car you drive, the small (or not so small) acreage of land that has been passed down through your family or that you scrimped and saved to acquire, whatever money you manage to keep in your bank account after the government and its cronies have taken their first and second and third cut…none of it is safe from the government’s greedy grasp.
At no point do you ever have any real ownership in anything other than the clothes on your back.
Everything else can be seized by the government under one pretext or another (civil asset forfeiture, unpaid taxes, eminent domain, public interest, etc.).
The American Dream has been reduced to a lease arrangement in which we are granted the privilege of endlessly paying out the nose for assets that are only ours so long as it suits the government’s purposes.
And when it doesn’t suit the government’s purposes? Watch out.
This is not a government that respects the rights of its citizenry or the law. Rather, this is a government that sells its citizens to the highest bidder and speaks to them in a language of force.
Under such a fascist regime, the Fifth Amendment to the U.S. Constitution, which declares that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” has become yet another broken shield, incapable of rendering any protection against corporate greed while allowing the government to justify all manner of “takings” in the name of the public good.
What we are grappling with is a government that has forfeited its purpose for existing.
Philosophers dating back to John Locke have long asserted that the true purpose of government is to protect our rights, not just our collective rights as a people, but our individual rights, specifically our rights to life, liberty and property. As James Madison concluded in the Federalist Papers, “Government is instituted no less for the protection of the property than of the persons of individuals.”
What we have been saddled with is a government that has not only lost sight of its primary reason for being—to protect the people’s rights—but has also re-written the script and cast itself as an imperial overlord with all of the neo-feudal authority such a position entails.
Let me put it another way.
If the government can tell you what you can and cannot do within the privacy of your home, whether it relates to what you eat, what you smoke or whom you love, you no longer have any rights whatsoever within your home.
If government officials can fine and arrest you for growing vegetables in your front yard, gathering with friends to worship in your living room, installing solar panels on your roof, and raising chickens in your backyard, you’re no longer the owner of your property.
If school officials can punish your children for what they do or say while at home or in your care, your children are not your own—they are the property of the state.
If government agents can invade your home, break down your doors, kill your dog, damage your furnishings and terrorize your family, your property is no longer private and secure—it belongs to the government.
If police can forcefully draw your blood, strip search you, probe you intimately, or force you to submit to vaccinations or lose your so-called “privileges” to move about and interact freely with your fellow citizens, your body is no longer your own—it is the government’s to do with as it deems best.
Likewise, if the government can lockdown whole communities and by extension the nation, quarantine whole segments of the population, outlaw religious gatherings and assemblies of more than a few people, shut down entire industries and manipulate the economy, muzzle dissidents, and “stop and seize any plane, train or automobile to stymie the spread of contagious disease,” then you no longer have a property interest as master of your own life, either.
This is what a world without the Fourth Amendment looks like, where the lines between private and public property have been so blurred that private property is reduced to little more than something the government can use to control, manipulate and harass you to suit its own purposes, and you the homeowner and citizen have been reduced to little more than a tenant or serf in bondage to an inflexible landlord.
If we continue down this road, the analogy shifts from property owners to prisoners in a government-run prison with local and federal police acting as prison guards. In such an environment, you have no rights.
So what can we do, short of scrapping this whole experiment in self-government and starting over?
At a minimum, we need to rebuild the foundations of our freedoms.
What this will mean is adopting an apolitical, nonpartisan, zero tolerance attitude towards the government when it oversteps its bounds and infringes on our rights.
We need courts that prioritize the rights of the citizenry over the government’s insatiable hunger for power at all costs.
We need people in the government—representatives, bureaucrats, etc.—who honor the public service oath to uphold and defend the Constitution.
Most of all, we need to reclaim control over our runaway government and restore our freedoms.
After all, we are the government. As I make clear in my book Battlefield America: The War on the American People, “we the people” are supposed to be the ones calling the shots. As John Jay, the first Chief Justice of the United States, rightly observed: “No power on earth has a right to take our property from us without our consent.”
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This article was originally published on The Rutherford Institute.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People is available at www.amazon.com. Whitehead can be contacted at [email protected].
