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Originally Posted by Bruce
I'm not trying to play any games. The quote you cited was my response to DaveM55 comment on how the Pa. congress was creating/changing laws regarding carry in State parks.
At any rate, I am not arguing (and would not argue) that Congress (State or Federal) has only passed "good" laws - of course they haven't. Good grief, just look at the stupid Brady Act!
Nevertheless, I insist that "case law" is not a good way to create legislation. In my opinion, judges should not be writing our laws from the courts; hence my opinion that "case law" should be illegal.
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Case law is not law. Case law is not legislation. Case law is simply a ruling by a superior court that is held to be binding on lesser courts. Superior courts are exactly that, the superiors of the lesser courts and just like anywhere else in life, when ones superior says "this is how it is" thats that.
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If the American government went through the proper process to amend the 4th Amendment of the constitution to include language to the effect that "The authority to Stop and Frisk is granted to Law Enforcement agents so long as the agent can produce Reasonable Articulable Suspicion that the citizen is Armed and Dangerous." then I'd be forced to not only accept that this is what the law is, but I'd have to conclude that the majority of American people favored the adoption of this law into the Constitution.
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So you support having the legislature write ten million new laws to cover every conceivable possible set of circumstances and defining every last word and phrase used in all previous legislation. That would result in our legal system coming to a screeching halt under the weight of all those laws.
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But, that isn't what happened. Instead, we got this "technical amendment" to the Constitution through a stupid "court decision" - through "case law" - and now it is practiced (that's the "making policy from the bench" part) by cops everywhere as a direct result of this "case law".
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What we got was the court doing its job. There was a question of whether a search was legal, the court looked at the circumstances of the search and made a ruling on it and stated why it made that ruling. That ruling is binding on all lesser (inferior) courts. The court could have simply said yes or no to whether it was legal with no explanation given, but that would have resulted in even more complication because nobody would know one way or another whether the next search was legal, or the next one, or the next one, etc etc.
That (Terry) is just one example. It is exactly this sort application of "case law" really ticks me off. That's all.
Boy, do I have a headache.
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If legislators felt that the ruling was in error, they were completely free to pass legislation setting requirements for a legal search different from what the court ruled. There is nothing stopping our legislators from doing that, the only hurdle they could face would be the Supreme Court doing its job should a case where that criteria was used for a search coming before them and them doing their job of determining whether or not the law is in line with the intentions of the 4th amendment.
At the end of the day thats the Supreme Sourts job, to rule whether or not actions and legislation are legal based on the intentions of the Constitutions authors.
In the case of the 4A, the intentions are quite clear, to prevent the government and its agents from just searching someone and siezing their property anytime they wanted for no reason other than they felt like it. That means if they want to search/sieze they need a good reason, and that reason is suspicion of criminal activity. If such suspicion exists the officer should be able to state "this is why I was suspicious..." and it should be something that would cause any reasonable person to be suspicious. Thus RAS.
Whether or not we agree with the ruling on the legality of the search of Terry, the ruling regarding the intent of the 4A is completely in line with the intentions of our founding fathers and making that ruling is the USSC's job.
April 5th, 2009
Re: Mere carry of a weapon RAS? NO! (Here's why!)
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