These are more nits, IMO. Prof. Spitzer's main point stands: statements regarding the second amendment that are made in a decision that is about the fourth amendment are "dicta" and not binding.
Now the nits: It's more the "class of persons" that swayed it than the place where the search took place, but the determination of who is in this class of persons identified as "the people" in the Preamble, the First Amendment, the Second Amendment, the Fourth Amendment, the Ninth Amendment, the Tenth Amendment, and in Art. I, 2, cl. 1, is not as cut and dry as determining citizenship. The decision says (rather vaguely) that the term "the people," as used in the above-listed sections of the constitution "refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=494&invol= 259 <<<<Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words [494 U.S. 259, 266] "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.>>>> -----Original Message----- From: Jon Roland [mailto:[EMAIL PROTECTED] Sent: Monday, October 13, 2003 4:10 PM To: [EMAIL PROTECTED] Subject: Re: Restrain your amazement No, what mattered was that it was outside the territorial jurisdiction of the United States, and therefore of its Constitution. The protections of the Constitution apply to territory, and persons in that territory, not U.S. citizens, or foreign nationals, outside that territory, where the laws of nations, or of other nations, govern. However, U.S. territory is considered to include U.S. flag vessels at sea and the grounds of U.S. diplomatic missions abroad, and may include for some purposes U.S. military installations abroad, depending on the applicable status of forces treaty or agreement. Robert J. Spitzer wrote: > Dear readers, on the illegal alien matter, it is true that I treated > "illegal alien" and "non-resident alien" as synonyms, and I regret the > error. But either way, the man was not a US citizen, and that is what > mattered in terms of the extent to which the 4th A. did or did not apply > to him. Thanks, ---------------------------------------------------------------- Our efforts depend on donations from people like you. Directions for donors are at http://www.constitution.org/whatucando.htm Constitution Society 7793 Burnet Road #37, Austin, TX 78757 512/374-9585 www.constitution.org [EMAIL PROTECTED] ----------------------------------------------------------------
