Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

See:

• Forced Blood Draws Come to Austin in DWI Cases and
• Austin Reacts to Forced Blood Draws as well as Frisco DWI comments at
• DWI Blood Draw Debate Continues

Browsing through the RSS reader, and I came upon an apropos section of a recent DrugWarRant post that applies neatly to the libertarian objections voiced by Austin’s citizens in the stories above.

Pete is actually talking about that age old Never Consent To A Search bit of advice that seems mostly to apply in drug cases, but struck a chord with me because of my recent ramblings about the newly proposed Austin Police policy regarding .

In the ‘Austin Reacts’ post I mentioned the overwhelmingly negative public response to Acevedo’s new proposal, but of course there were also the inevitable “If you’ve got nothing to hide, why would you care about this” comments left on the KXAN story as well.

And this subject comes up in a variety of ways but with regularity when discussing criminal defense issues with the public at large. Thanks to Pete, I now have a new and improved way of explaining why that logic is so flawed:

Now the real question is, why would anyone ever consent to a search?

Sure, the canned law enforcement quip is "If you have nothing to hide, you have nothing to worry about." But regular readers know my response to that:

Sometimes people say I shouldn't mind being searched if I have nothing to hide. I immediately accuse them of having a swastika tattooed on their genitalia -- if they have nothing to hide, then surely they shouldn't mind dropping their pants to prove me wrong.

And, of course, even without that thinking the "nothing to hide" bit doesn't make a bit of sense in consenting to a search.

Fantastic response. I can’t wait to use it the next time someone tells me I shouldn’t worry so much about the Fourth Amendment, or that the Bill of Rights is all a bunch of baloney meant to coddle criminals and doesn’t do anything for the rest of us…

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While the Constitution is in many ways a beautifully written document, the framers deserve no gold stars when it comes to how they phrased the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The conflict resolved by the Supreme Court in DC v Heller today arises from the ambiguity created by the frankly flowery language.

In a nutshell: Does the Militia preamble part of the amendment limit the right or not? If it doesn’t, why is it in there? (Because – say the Supremes – it’s basically an example of why it’s necessary not a limitation.)

If it is limited to militias, why does it speak of the ‘right of the people’? Doesn’t that sound like an individual right? (And wouldn’t that lead to an absurd result?)

I’m no gun nut, so let me say this from a strictly legal standpoint: Scalia’s majority decision striking down DC’s ban on handguns is much less tortured than Stevens’ dissent.  As usual, he comes off like a jerk, especially when describing the minority position.

But the dissenters have failed to convince me that ‘to keep and bear arms’ doesn’t mean what it sounds like it means.

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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