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It clearly isn't a direct and obvious violation. Even ignoring any say the rest of the Constitution has on civil forfeiture, even the parts that you quote do n

It clearly isn't a direct and obvious violation. Even ignoring any say the rest of the Constitution has on civil forfeiture, even the parts that you quote do not prevent civil forfeitures on their own. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" The rub here is "unreasonable". The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures. So there is no clear answer here because unreasonable is completely subjective.

Retric 4y ago
It’s only ambiguous if you ignore the clear intent of what was written. Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Sorry the language isn’t ambiguous, the language is being ignored.
- sokoloff 4y ago
  "Shall not be infringed" is another one that is commonly interpreted quite differently than the most plain reading would suggest. (I say this as someone who does not own a firearm, so this is probably not gun-nuttery.)
  - RajT88 4y ago
    The modern pro-gun movement has erased the words "well-regulated militia" as well. The thinking of course is everyone could potentially join a militia, therefore everyone is defacto covered under the second amendment.
    - dontcare007 4y ago
      Nah, well related militia was not a restriction on the right, it was a reason for everyone to have the right. You have to remember that the Constitution doesn't give the people rights, it delineates the governments rights. The 1st 10 amendment's were added because the anti- federalists were (rightly) worried that the government would misappropriated all powers and eventually the people would no longer be free. They were basically a list of rights for a minimum viable free society.
      - deleted 4y ago
        [deleted]
    - tonfreed 4y ago
      Considering there's letters from James Madison endorsing cannon ownership, I don't think it means what you think it means either.
      - bombcar 4y ago
        Heh we can still get our cannons: https://www.nationalreview.com/corner/americans-can-still-buy-cannon/ https://www.nationalreview.com/corner/americans-can-still-bu...
    - s1artibartfast 4y ago
      And the Anti-gun movement conveniently ignores the concept of a preposition. Because one first part explains the rationale, the second part describes the right.
      - dane-pgp 4y ago
        The first part also provides a context for understanding the second part. For example the right to "bear" arms shouldn't be read as including a general right to brandish arms, even though a less constrained reading of "bear" might suggest that. Conversely, it does include a right to fire those arms, since that is necessary for a well regulated militia to bear them effectively.
      - NineStarPoint 4y ago
        I think it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. The preposition is part of the amendment, and its existence puts a qualification on what the right to bear arms means. I personally think the current state of affairs does a pretty good job balancing the two parts of the amendment. States are allowed to put a lot of restrictions on how you can buy guns, and where you can carry/use them, but ultimately people are allowed to have them. You aren’t allowed a nuke, you are allowed a shotgun. Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.
        mindslight 4y ago
        > it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. I know this is apostasy, but because the founders weren't omniscient beings that drafted perfect documents. Rather they were politicians basically just winging it while trying to come to some consensus. Critically, they lacked an understanding of the limitation of logical systems that would only be discovered in the 20th century - the repercussions of which are with us to this day. > Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well. From the commoner's perspective, most explosives are basically illegal even though they could be responsibly kept by anyone with a little land. So no, I don't think any balance has been achieved. For starters, anything that a domestic-facing police department is allowed to have should be fair game for the rest of the People as well.
    - User23 4y ago
      Every able-bodied American male 17 or older and under 45 is already a member of a well-regulated militia[1]. Now you may think Congress should ask more of the militia of the United States, but being a statutory organization certainly meets the well-regulated criteria. [1] https://www.law.cornell.edu/uscode/text/10/246 https://www.law.cornell.edu/uscode/text/10/246
      - jmalicki 4y ago
        The statute calls them unorganized, which is arguably not well regulated... "(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
        s1artibartfast 4y ago
        Regulated in the constitution did not mean controlled or restricted as in 'regulations'. It meant armed and capable.
      - RajT88 4y ago
        Private gun-owning citizens are not automatically counted among active unorganized militia. Even in the few active state militia they would be considered eligible, not members. SCOTUS has had contradictory decisions in the past on whether private gun rights hinge on military applications of the specific firearms, but indeed this is the talking point - state militias. Collectively, the people who parrot "Shall Not Be Infringed" are really trying to avoid the militia debate entirely.
    - s1artibartfast 4y ago
      Which is exactly the same rationale that the 2nd amendments authors used.
- mlyle 4y ago
  > Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Generally, when trials take a very long time to happen, it's because the defendant has decided it is in their interest to waive the right to a speedy trial.
  - yonaguska 4y ago
    Ummm, Gitmo? J6 detainees? And countless other stories of young black men being held without trials to their own detriment.
    - mlyle 4y ago
      > Ummm, Gitmo? Umm, Gitmo was messed up. But, to be clear, the United States does not guarantee constitutional rights to non-citizens who have not touched US soil, so this is a bit of a canard. > J6 detainees? Despite rumors of hundreds of January 6th detainees languishing in jails-- the actual number is approximately 35. Most of these have waived speedy trial. Most of these have not been detained for a very long time. A few are still undergoing legal discovery. It's a problematic set of circumstances: further, closely related arrests happen; without providing additional information on the new arrests to existing arrestees' counsel, convictions could later be set aside. In turn, this restarts some clocks. On the other hand, judges are getting frustrated and warning the prosecution that these delays are becoming excessive.
      - adolph 4y ago
      - jessaustin 4y ago
        the United States does not guarantee constitutional rights to non-citizens who have not touched US soil I can't find this detail in my copy of the constitution. 6A in particular specifies "the accused". It's true that most Gitmo prisoners were never actually accused of anything (because they had never done anything, in particular anything related to actions undertaken by Saudi nationals under the direction of Saudi intelligence personnel), and were eventually released without apology. However, any prisoner who ever actually went to trial would certainly be classified as "accused".
UncleEntity 4y ago
> The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures. Yes, a reasonable seizure is either through eminent domain (with just compensation) or the result of a criminal proceeding as punishment. Unreasonable would be seizures with no criminal proceedings or just compensation.
hn_throwaway_99 4y ago
There is a very long history of jurisprudence over the past 2+ centuries that has done a pretty good job of defining what "unreasonable" means, and there are tons and tons of SCOTUS cases that have dealt with that. The basics, though, nearly always involve a judge reviewing the evidence to determine if a crime is probable, and issuing a warrant in that case. The fact that civil forfeiture is so contrary to all the other definitions of "reasonable" that courts have emphasized over the years should make it a clear violation of the Constitution.
tialaramex 4y ago
One test the law likes for reasonableness is to ask a jury. We presume the jury are reasonable people (unfortunately the US also screws up how juries work) and so if they have a consensus that must be reasonable. The UK uses "double reasonableness" in it's anti-tax avoidance law. It says the jury should ask themselves if any reasonable person might have done this anyway. If your jurors can't conceive of how even one other reasonable person could think what you did made sense, except that it reduced tax liability, then in fact it did not reduce liability, your avoidance scheme doesn't work.
- junofan 4y ago
  The broader question isn’t whether a specific action is reasonable in context, but whether civil asset forfeiture is constitutional. So it’s a question of law for the courts to decide, not a question of fact for a jury to decide.
  - AnimalMuppet 4y ago
    We'd love to see a constitutional ruling against civil asset forfeiture. It's the right thing. In the absence of that, though, jury rulings against the specific seizure is the next best defense.
twh270 4y ago
There is no clear answer to the question of reasonableness/unreasonableness, but civil asset forfeiture as used today is *far* into unreasonable territory.
zmgsabst 4y ago
From the US constitution: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable … seizures, shall not be violated, … but upon probable cause, supported by Oath or affirmation, and particularly describing the … things to be seized. From the article: > In a response to an interrogatory filed in the Kozbials' subsequent lawsuit against Highland Park, a city police officer answered "none" when asked to identify any predicate felony offenses justifying the seizure. What was the probable cause supported by oath or affirmation?
avs733 4y ago
reasonable here could easily be aligned with, you know, having due process. The constitution describes people's property and makes people subject to it. Suing a car or a pile of cash is farcical - because the constitution doesn't have authority over objects, it has authority over the people who own and possess the objects. Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.
- mlyle 4y ago
  > because the constitution doesn't have authority over objects First, the overwhelming majority of civil forfeiture happens in states, where a mere claim of the constitution not explicitly giving the federal government authority doesn't hold water (or invoke the incorporation doctrine). Second, Federal courts have long exercised authority over objects and courts having authority over objects is something that is broadly considered constitutional. > Suing a car or a pile of cash is farcical It may seem farcical, but it has a decent legal basis and a reasonable reason for existance: there are times that property seems to A) be involved in crime, and B) unclaimed by owners. E.g. distant shipowners engaged in smuggling. It seems reasonable for the government to seize the property in these cases. It's much more problematic when a clear owner can be identified (or, when an owner comes forward after seizure). I agree in those circumstances action should be brought against the people, and should require a higher standard than the preponderance of the evidence, for property to be kept. > Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights. I don't quite see the connection.
deleted 4y ago
[deleted]

Retric 4y ago

It’s only ambiguous if you ignore the clear intent of what was written. Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Sorry the language isn’t ambiguous, the language is being ignored.

sokoloff 4y ago
"Shall not be infringed" is another one that is commonly interpreted quite differently than the most plain reading would suggest. (I say this as someone who does not own a firearm, so this is probably not gun-nuttery.)
- RajT88 4y ago
  The modern pro-gun movement has erased the words "well-regulated militia" as well. The thinking of course is everyone could potentially join a militia, therefore everyone is defacto covered under the second amendment.
  - dontcare007 4y ago
    Nah, well related militia was not a restriction on the right, it was a reason for everyone to have the right. You have to remember that the Constitution doesn't give the people rights, it delineates the governments rights. The 1st 10 amendment's were added because the anti- federalists were (rightly) worried that the government would misappropriated all powers and eventually the people would no longer be free. They were basically a list of rights for a minimum viable free society.
    - deleted 4y ago
      [deleted]
  - tonfreed 4y ago
    Considering there's letters from James Madison endorsing cannon ownership, I don't think it means what you think it means either.
    - bombcar 4y ago
      Heh we can still get our cannons: https://www.nationalreview.com/corner/americans-can-still-buy-cannon/ https://www.nationalreview.com/corner/americans-can-still-bu...
  - s1artibartfast 4y ago
    And the Anti-gun movement conveniently ignores the concept of a preposition. Because one first part explains the rationale, the second part describes the right.
    - dane-pgp 4y ago
      The first part also provides a context for understanding the second part. For example the right to "bear" arms shouldn't be read as including a general right to brandish arms, even though a less constrained reading of "bear" might suggest that. Conversely, it does include a right to fire those arms, since that is necessary for a well regulated militia to bear them effectively.
    - NineStarPoint 4y ago
      I think it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. The preposition is part of the amendment, and its existence puts a qualification on what the right to bear arms means. I personally think the current state of affairs does a pretty good job balancing the two parts of the amendment. States are allowed to put a lot of restrictions on how you can buy guns, and where you can carry/use them, but ultimately people are allowed to have them. You aren’t allowed a nuke, you are allowed a shotgun. Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.
      - mindslight 4y ago
        > it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. I know this is apostasy, but because the founders weren't omniscient beings that drafted perfect documents. Rather they were politicians basically just winging it while trying to come to some consensus. Critically, they lacked an understanding of the limitation of logical systems that would only be discovered in the 20th century - the repercussions of which are with us to this day. > Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well. From the commoner's perspective, most explosives are basically illegal even though they could be responsibly kept by anyone with a little land. So no, I don't think any balance has been achieved. For starters, anything that a domestic-facing police department is allowed to have should be fair game for the rest of the People as well.
  - User23 4y ago
    Every able-bodied American male 17 or older and under 45 is already a member of a well-regulated militia[1]. Now you may think Congress should ask more of the militia of the United States, but being a statutory organization certainly meets the well-regulated criteria. [1] https://www.law.cornell.edu/uscode/text/10/246 https://www.law.cornell.edu/uscode/text/10/246
    - jmalicki 4y ago
      The statute calls them unorganized, which is arguably not well regulated... "(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
      - s1artibartfast 4y ago
        Regulated in the constitution did not mean controlled or restricted as in 'regulations'. It meant armed and capable.
    - RajT88 4y ago
      Private gun-owning citizens are not automatically counted among active unorganized militia. Even in the few active state militia they would be considered eligible, not members. SCOTUS has had contradictory decisions in the past on whether private gun rights hinge on military applications of the specific firearms, but indeed this is the talking point - state militias. Collectively, the people who parrot "Shall Not Be Infringed" are really trying to avoid the militia debate entirely.
  - s1artibartfast 4y ago
    Which is exactly the same rationale that the 2nd amendments authors used.
mlyle 4y ago
> Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Generally, when trials take a very long time to happen, it's because the defendant has decided it is in their interest to waive the right to a speedy trial.
- yonaguska 4y ago
  Ummm, Gitmo? J6 detainees? And countless other stories of young black men being held without trials to their own detriment.
  - mlyle 4y ago
    > Ummm, Gitmo? Umm, Gitmo was messed up. But, to be clear, the United States does not guarantee constitutional rights to non-citizens who have not touched US soil, so this is a bit of a canard. > J6 detainees? Despite rumors of hundreds of January 6th detainees languishing in jails-- the actual number is approximately 35. Most of these have waived speedy trial. Most of these have not been detained for a very long time. A few are still undergoing legal discovery. It's a problematic set of circumstances: further, closely related arrests happen; without providing additional information on the new arrests to existing arrestees' counsel, convictions could later be set aside. In turn, this restarts some clocks. On the other hand, judges are getting frustrated and warning the prosecution that these delays are becoming excessive.
    - adolph 4y ago
    - jessaustin 4y ago
      the United States does not guarantee constitutional rights to non-citizens who have not touched US soil I can't find this detail in my copy of the constitution. 6A in particular specifies "the accused". It's true that most Gitmo prisoners were never actually accused of anything (because they had never done anything, in particular anything related to actions undertaken by Saudi nationals under the direction of Saudi intelligence personnel), and were eventually released without apology. However, any prisoner who ever actually went to trial would certainly be classified as "accused".

UncleEntity 4y ago

> The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures. Yes, a reasonable seizure is either through eminent domain (with just compensation) or the result of a criminal proceeding as punishment. Unreasonable would be seizures with no criminal proceedings or just compensation.

hn_throwaway_99 4y ago

There is a very long history of jurisprudence over the past 2+ centuries that has done a pretty good job of defining what "unreasonable" means, and there are tons and tons of SCOTUS cases that have dealt with that. The basics, though, nearly always involve a judge reviewing the evidence to determine if a crime is probable, and issuing a warrant in that case. The fact that civil forfeiture is so contrary to all the other definitions of "reasonable" that courts have emphasized over the years should make it a clear violation of the Constitution.

tialaramex 4y ago

One test the law likes for reasonableness is to ask a jury. We presume the jury are reasonable people (unfortunately the US also screws up how juries work) and so if they have a consensus that must be reasonable. The UK uses "double reasonableness" in it's anti-tax avoidance law. It says the jury should ask themselves if any reasonable person might have done this anyway. If your jurors can't conceive of how even one other reasonable person could think what you did made sense, except that it reduced tax liability, then in fact it did not reduce liability, your avoidance scheme doesn't work.

junofan 4y ago
The broader question isn’t whether a specific action is reasonable in context, but whether civil asset forfeiture is constitutional. So it’s a question of law for the courts to decide, not a question of fact for a jury to decide.
- AnimalMuppet 4y ago
  We'd love to see a constitutional ruling against civil asset forfeiture. It's the right thing. In the absence of that, though, jury rulings against the specific seizure is the next best defense.

twh270 4y ago

There is no clear answer to the question of reasonableness/unreasonableness, but civil asset forfeiture as used today is *far* into unreasonable territory.

zmgsabst 4y ago

From the US constitution: > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable … seizures, shall not be violated, … but upon probable cause, supported by Oath or affirmation, and particularly describing the … things to be seized. From the article: > In a response to an interrogatory filed in the Kozbials' subsequent lawsuit against Highland Park, a city police officer answered "none" when asked to identify any predicate felony offenses justifying the seizure. What was the probable cause supported by oath or affirmation?

avs733 4y ago

reasonable here could easily be aligned with, you know, having due process. The constitution describes people's property and makes people subject to it. Suing a car or a pile of cash is farcical - because the constitution doesn't have authority over objects, it has authority over the people who own and possess the objects. Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.

mlyle 4y ago
> because the constitution doesn't have authority over objects First, the overwhelming majority of civil forfeiture happens in states, where a mere claim of the constitution not explicitly giving the federal government authority doesn't hold water (or invoke the incorporation doctrine). Second, Federal courts have long exercised authority over objects and courts having authority over objects is something that is broadly considered constitutional. > Suing a car or a pile of cash is farcical It may seem farcical, but it has a decent legal basis and a reasonable reason for existance: there are times that property seems to A) be involved in crime, and B) unclaimed by owners. E.g. distant shipowners engaged in smuggling. It seems reasonable for the government to seize the property in these cases. It's much more problematic when a clear owner can be identified (or, when an owner comes forward after seizure). I agree in those circumstances action should be brought against the people, and should require a higher standard than the preponderance of the evidence, for property to be kept. > Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights. I don't quite see the connection.

deleted 4y ago

[deleted]